Appointments, buffer zones
11:38 am
Mon June 30, 2014

Analysis: Supreme Court Unanimous Decisions Do Not Equal Agreement

The era of unanimity on the U.S. Supreme Court lasted about four days.

When the U.S. Supreme Court issued three important decisions last week with unanimous votes, a flurry of legal and media commentary talked about Chief Justice John G. Roberts Jr. having engineered a new era of consensus on the court, with nearly two-thirds of this year's decisions decided without a dissent. Some contended that this new consensus court had rejected President Barack Obama's extremism and bolstered House Speaker John Boehner's threatened lawsuit against the president.

Credit Matt H. Wade | Wikipedia

But St. Louis and national legal experts doubt that an era of good feeling is breaking out. The court's final decisions Monday -- bitter 5-4 decisions limiting the power of public employee unions in an Illinois case and expanding the religious rights of closely held corporations such as Hobby Lobby - gave no support to unanimity claims. Amy Howe, who writes the live Scotusblog on court decisions, quipped Monday morning, "So much for the brief age of unanimity."

The local legal experts think that much of last week's unanimity was neither as real nor as significant as was broadly claimed by commentators. Beneath the 9-0 decisions striking down President Barack Obama's recess appointments and a Massachusetts law creating a no-protest buffer zone around abortion clinics were deep 5-4 divisions about what the Constitution means.

Gregory P. Magarian, a law professor at Washington University and former Supreme Court clerk, said "Roberts isn’t finding propositions that hold the court together. The court is just agreeing on outcomes. … Let’s not forget that a lot of important cases haven’t been unanimous. The landmark McCutcheon campaign finance case,  like all the campaign finance decisions over the past 15 years (at least), is a bruising exercise in judicial politics. The legislative prayer case, Town of Greece, was 5-4 (and) … throws the religious minority under a bus so that politically powerful Christians can exercise their prerogatives."

Ronald Levin, another Washington University law professor agreed that the recess appointments and buffer zone cases were "poor examples of unanimity. The divisions between the court’s factions are very deep," he wrote in an email.

John D. Inazu, also at Washington University Law School, called the unanimity noteworthy, but added in an email, "I wonder if it glosses over deeper divisions."

Reaction against executive overreach?

Last Thursday, former acting solicitor general Neal K. Katyal wrote in The New York Times that the Supreme Court had decided 66 percent of this terms decisions by a unanimous vote, the largest number since 1940.

"The justices’ ability to cross partisan divides and find common ground in their bottom-line judgment in roughly two-thirds of their cases — including the two decisions handed down Thursday, restricting the president’s ability to issue recess appointments during brief breaks in the Senate’s work, and striking down a Massachusetts ban on protests near abortion clinics — should remind us that even in this hyperpartisan age, there is a difference between law and politics," he wrote.

Ilya Somin, a law professor at George Mason University, took it a step further and wrote on the Volokh Conspiracy blog in the Washington Post that the Obama administration's extreme position on issues involving executive and government power had pushed the liberal justices into agreeing with the conservative justices to limit presidential authority.

Mary Kate Cary of U.S. News and World Report went even further on NPR's All Things Considered suggesting that the Supreme Court's rebukes to Obama in recent terms lend credence to Boehner's announcement last week that he will ask for authority to sue Obama for failing to faithfully execute the law.

Cary said this was the 13th unanimous decision against the administration in 18 months with the court “clearly sending a signal.” She found it notable that the administration was not able to hold its own “Supreme Court nominees' votes because so many of these cases deal with unchecked federal power. And I think that's why (the Boehner suit) is such a threat to the Obama White House I'm glad they brought the case."

Unanimity good for court?

Magarian and Levin credit Chief Justice Roberts for engineering unanimous outcomes, something he promised to due during his confirmation hearings. "I think Roberts believes unanimous outcomes are politically good for the court and for him; I’m sure he cultivates unanimity for that reason," wrote Magarian.

Levin said a case could be made in the abortion buffer zone decision "for seeing Roberts as a force for moderation, in the interest of bolstering the court’s legitimacy."

In that case, the court concluded that a strict Massachusetts law violated the First Amendment right of anti-abortion sidewalk counselors by keeping them out of a 35-foot zone near the clinic entrance. But the chief justice joined the four more liberal justices (who were nominated by Democratic presidents) in saying that other, less restrictive buffer zones would be constitutional.

"The most important aspect of the case," Levin said, "is that properly drafted buffer zones can survive, which is a very different position" from the one advanced by the conservative justices who complained through Justice Antonin Scalia that the court was suppressing anti-abortion speech and favoring the speech of abortion-rights groups.

Inazu didn't think Roberts achieved much in patching together a unanimous vote in the abortion buffer case, noting that Scalia wrote, "I prefer not to take part in the assembling of an apparent but specious unanimity.”

Magarian and Levin said, there was a fundamental dispute over constitutional interpretation between Scalia and Justice Stephen Breyer in the 9-0 judgment on recess appointments. Breyer, who wrote the opinion of the court, looked to historical practice to determine when the president could make recess appointments. This approach always sets off Justice Scalia, who has spent three decades on the court emphasizing a textual approach that emphasizes the original meaning of the constitution.

"The division is not left versus right in terms of results," said Levin, "but rather originalism versus evolving constitutional law. … Roberts cannot take credit for forging consensus, because he joined the radically transformative opinion (Scalia's), not the minimalist opinion."

The bottom line is that even though Obama lost the judgment and his recess appointments were rejected, the conservative justices lost the important constitutional interpretation issue and the president retains significant recess appointment powers.

Difference in unity?

Harvard Law Professor Laurence H. Tribe also challenged Katyal's observation about the significance of the unanimity. He wrote in Slate: "Even when the court agrees 9–0 over a case's holding, it can divide, sometimes sharply, over the reasoning and rule to be applied.”

Tribe agrees that Scalia was angry about Breyer's approach to constitutional interpretation. He pointed out that Scalia strongly criticized Breyer "for his allegedly extraconstitutional account of the scope of executive power. Scalia’s fighting words speak for themselves: He accuses Breyer of 'sweep[ing] away the key textual limitations on the recess-appointment power, 'replac[ing] the Constitution’s text with a new set of judge-made rules,' and creating 'a weapon to be wielded by future presidents against future Senates.' This language hints at what Scalia may be most upset about: a majority of the court that refuses to abide by his particular brand of Textualism — a means of interpreting legal texts that he has advanced for years.

"...Given that unanimity of votes doesn’t correspond with unanimity of opinion," Tribe continued, "is there anything more subtle that we can conclude from the 9–0 votes...? I think not. Sometimes, unanimous decisions signal judicial unity (or a strong chief’s ability to impose the appearance of unity) on a major issue of national importance — a model most famously seen in Brown v. Board of Education. Other times, narrow consensus opinions mask deep divisions that emerge a few years later, a pattern we’ve seen in the Roberts court with the voting rights cases. Yet other times ... unanimous opinions with fierce concurrences signal only that two very different lines of judicial reasoning happen to lead to the same outcome. No more, no less."

Magarian does think that unanimity was significant in the court's rejection of the Obama administration's position that police should be able to search cell phones without a warrant at the time of an arrest. The court united behind a strong decision by Chief Justice Roberts requiring that in all but extraordinary cases police obtain warrants to search cell phones of people they arrested.

Magarian said, “The court created a strong paradigm by speaking so emphatically in that case."

As for Boehner's threatened lawsuit, few legal experts give it much chance. The Supreme Court hears only cases and controversies where someone can show they were harmed. It does not hear broad indictments of the president's actions on multiple fronts, nor does it like to get involved in political questions.

Magarian says the bottom line is "this court, most of the time, represents an (unholy) convergence of authoritarian and right-wing libertarian tendencies. The Court, most of the time, remains as ideologically riven on important legal questions as it’s ever been."

William H. Freivogel, a lawyer, heads the School of Journalism at Southern Illinois University-Carbondale and is a regular member of the law panel on St. Louis on the Air.

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