Out of 69 decisions the U.S. Supreme Court issued in its latest term, 44 were unanimous. But there’s more to those decisions than meets the eye, and unanimity is not always what it’s cracked up to be.
A true unanimous ruling happened this past term in a case out of Alabama, where a college employee was fired in retaliation for testifying against a corrupt state representative. The justices emphatically ruled employees cannot be fired in retaliation for testifying truthfully on matters of public concern or corruption. In another case about cellphone searches, all nine justices set aside long-established law allowing police to search whatever they find on an arrested person.
But those kinds of unanimous decisions were uncommon this term. In many 9-0 decisions, justices disagreed vociferously about why one side should win. In the abortion buffer zone case, for example, all the justices agreed the buffer zone was just too big. It included public sidewalks and streets, quintessential free-speech zones. But the majority opinion fell far short of what conservatives on the court wanted, which was to do away with speech buffer zones altogether. Chief Justice John Roberts sided with the liberals in their general approval for buffer zones. They just didn’t like the way Massachusetts set them up.
Justice Antonin Scalia’s concurring opinion sounded more like a dissent. He said the court gives pro-choice advocates a pass to suppress pro-life speech. Opinions like Scalia’s show the court might take a different direction in the future with a different set of facts.
Another tool of this unanimous-but-not court was the narrow ruling: the court issued unanimous rulings on tiny slices of facts. It happened in the recess appointments case, in which the president retained power to appoint officials to high office, but not in certain situations where he was trying to take unfair advantage.
The chief justice believes split decisions aren’t a good thing and the country wants clear guidance without equivocation. So, he’s working to strike a middle ground. That’s one reason we get narrow but unanimous rulings.
The rulings that were not unanimous—the 5-4s—related to basic First-Amendment freedoms. Those cases seemed to polarize the court the most. In McCutcheon v. Federal Election Commission, the court ruled aggregate limits on campaign contributions were unconstitutional infringements of free speech. One justice wrote that the decision was like telling a newspaper it could endorse nine candidates, but not 10. That idea didn’t reduce corruption one iota, but it did limit the democratic process. The four dissenters vigorously defended the old limits, and the ruling opened the door to other campaign finance reforms.
Like McCutcheon, Town of Greece v. Galloway was a split decision. The court ruled prayer before a town hall meeting does not violate the separation of church and state. The majority cited the history of the First Amendment, noting it was not meant to exclude prayer before deliberative bodies, even if most of the prayers are Christian. But the dissent thought those prayers werecoercive and would have put an end to them.
Those cases show that despite many unanimous decisions this term, the court still faces deep ideological divides. And many wonder whether Roberts’ push for unanimous decisions is guided by conviction or merely strategy.
Mary Reichard provides thought-provoking analysis in her “Legal Docket” segment every Monday on The World and Everything in It: