The Divider

In a commencement speech he gave at Georgetown Law School last year, the newly confirmed Chief Justice John Roberts asserted that one of his primary goals was to create more unanimity on the Supreme Court: "Division should not be artificially suppressed, but the rule of law benefits from a broader agreement. The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds."

After a truncated first term in which there were more unanimous opinions than usual, this seemed very possible to some observers of the Court. "Roberts," said the conservative law professor Douglas Kmiec, "has wisely set out to help his colleagues 'speak with one voice.' At mid-term, he seems to be succeeding, and that success, is a strong affirmance of the intended role for the federal judiciary under the Constitution." Nor was this sentiment limited to his most likely admirers. Several liberal law professors also thought that an increase in unanimity and a reduction in additional opinions was a distinct possibility; some even claimed that Roberts might move the court slightly to the left.

For these scholars, the second Roberts term must have been highly sobering. Not only did the new appointments, Roberts and Alito, turn out to be the doctrinaire conservatives everything about their records (as opposed to the vague banalities of their confirmation hearing rhetoric) suggested they would be, a far higher than usual number of cases were decided by a 5-4 margin. Nor were these 5-4 decisions particularly notable for a new dawn of collegiality. The most high-profile cases included Ruth Bader Ginsburg's angry dissection of Kennedy's poorly reasoned and nakedly sexist opinion for the Court in Gonzales v. Carhart and Stephen Breyer's lengthy dissent (supplemented by John Paul Stevens's briefer spray of acidic sarcasm) in the end-of-term decision striking down two local desegregation plans.

The vitriol wasn't limited to the court's more liberal members. In two concurrences, Justice Scalia called out his two newest colleagues for nominal refusals to overturn precedents whose illogic was almost comically transparent. Wrote Scalia in FEC v. Wisconsin Right to Life:

"...the principal opinion's attempt at distinguishing McConnell is unpersuasive enough, and the change in the law it works is substantial enough, that seven Justices of this Court, having widely divergent views concerning the constitutionality of the restrictions at issue, agree that the opinion effectively overrules McConnell without saying so. This faux judicial restraint is judicial obfuscation."

Less than two years on the job, and the minimalism that Roberts cited as the tool that was going to bring the Court together was already being derided by a colleague (and not without justice) as verging on self-parody.

And yet there should have been nothing unexpected about this turn of events. The leverage of a chief justice over the modern Court is extremely limited, and while the precise amount of closely divided opinions will vary depending on how many cases that have a conventional ideological valence show up on a docket, there was never any possibility that Roberts was going to change the Court's essential culture by the sheer force of his personality.

In an interview with The New Republic's legal affairs editor Jeffrey Rosen, the new chief justice invoked arguably his most influential predecessor:

In particular, Roberts declared, he would make it his priority, as [Chief Justice John] Marshall did, to discourage his colleagues from issuing separate opinions. "I think that every justice should be worried about the Court acting as a Court and functioning as a Court, and they should all be worried, when they're writing separately, about the effect on the Court as an institution."

The Marshall comparison, however, is so inapt as to be meaningless even as a goal or ideal type. Marshall presided over a smaller number of justices (who, for much of Marshall's tenure, literally lived together), at a time in which becoming a Supreme Court justice was not an especially desirable position. It was also a much less powerful one as the Court, aware of its shaky authority, was careful not to tangle openly with the federal government: it struck down one (trivial) provision of one federal statute in three decades.

The idea of Roberts cajoling or bullying the much more high-wattage intellects and strongly independent personalities who serve on his Court the way Marshall did with his colleagues is a bizarre pipe dream. It is also unclear why this change of culture wouldn't have emerged under Roberts's predecessor William Rehnquist, who was generally seen as a canny and effective administrator and strategist.

Attempting to answer how Roberts could achieve these seemingly impossible goals, Rosen intriguingly suggested that it would be in the interests of the individual justices themselves. "Surely it would be in the best interest of each side," argues Rosen, "if it could win half the cases by a unanimous vote, rather than trying to win slightly more often by a 5-4 vote, since a unanimous victory would be harder, in the future, to overturn." For such an appeal to work even in theory, however, the opportunity for victories would have to be relatively symmetrical.

And this is simply not the case. Kennedy is the "swing vote" in the sense of (unless a case appeals to the libertarian streak in Scalia or Thomas) being the only vote even conceivably up for grabs in most politically salient cases. But, as Rosen himself recently noted, while Kennedy is less doctrinaire than Alito or Roberts, he's a solid conservative rather than a moderate. As the last term demonstrates, conservatives can expect to win the overwhelming majority of high-visibility cases, and for liberals to lend these outcomes legitimacy would be a sucker's bet. All of the justices, of course, must know this. Therefore, no matter how skilled a manager and strategist Roberts turns out to be, then, the very divided Court we saw this term will continue as long as the balance of the Court remains similar.

This failure to produce more unanimity is not necessarily a bad thing. Although even some of the legal scholars who are dubious about the possibility of Roberts's acheving his goals see them as worthy, I'm much less convinced. Even operating under the dubious assumption that unanimous opinions increase the prestige of the modern Court (as opposed to the reputation of its chief justice), in a democratic society courts are not entitled to a fixed degree of legitimacy regardless of their actions. Enhancing the legitimacy of the current Court's jurisprudence is more a bug than a feature.

Moreover, as this term demonstrated several times, the "minimalism" generally required to paper over internal divisions carries serious democratic costs. Scalia is right: the Court owes the public an honest account of what it's doing, rather than erecting a Potemkin stability to mask major substantive changes.

If the Roberts court has taught us anything thus far, it's that honest divisions about the meaning of constitutional provisions and statutes should be aired in public rather than bargained away in private memos.

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