Do Supreme Court’s mostly calm waters hide turbulence below?

06/27/2014 4:11 PM

06/27/2014 4:23 PM

The Supreme Court on Monday will conclude a term in which justices have papered over their sharp differences, literally.

The result is more surface unanimity, fewer 5-4 decisions and some pronounced frustration for the most vehement conservatives. It also might be the complicated picture of what victory looks like for Chief Justice John Roberts Jr., who from the start has praised the virtues of greater court unity.

“It masks the heat of the divisions,” Elizabeth Wydra, chief counsel of the liberal Constitutional Accountability Center, said of the court’s votes this term.

Since the term began last October, the court has rendered only eight 5-4 decisions. Tom Goldstein, a Supreme Court practitioner and publisher of the SCOTUSblog website, characterized that on Friday as “the lowest number of 5-4 decisions in the court’s modern history.”

Last term, records compiled by SCOTUSblog show, the court decided 23 cases by 5-4; the term before that, 15 cases. In the 2010-11 term, 16 came out 5-4. Put another way, the court this term cut the number of cases it resolved by a single vote at least in half.

“There’s something going on,” Goldstein suggested Friday.

Some of what’s going on may be chance, a reflection of the particular cases the court’s nine justices selected to hear this term compared with previous terms. Some of it may be tactical, or perhaps even strategic.

An example occurred Thursday, when Roberts rallied all eight of his colleagues behind the bottom-line conclusion to strike down a Massachusetts law establishing a 35-foot buffer zone around abortion clinics. By restraining his reasoning, and thereby confining the ruling’s reach, Roberts secured the votes of the court’s liberal justices.

“Clearly, there was an effort here to bring the court together,” said Paul Smith, an attorney who argues before the court.

Roberts’ tactical victory on the Massachusetts case, in turn, might have strategic implications for the long run. Now 59 years old, the chief justice can anticipate several more decades of court leadership. His predecessor and a man for whom he once clerked, William Rehnquist, served until his death at the age of 80. Roberts has time to claim incremental victories and build on them, even as their seeming modesty at first may help blunt critics’ charges about court partisanship.

In a 2009 Voting Rights Act challenge out of Texas, for instance, Roberts secured an 8-1 majority by moving cautiously and leaving the law intact. He also embedded in his opinion, though, language that set the stage for a 2013 ruling that struck down a key part of that law.

Liberals hated the 2013 decision, but they couldn’t say they weren’t warned. Roberts cited the earlier, nearly unanimous case 29 times in his 23-page opinion last year that struck down part of the Voting Rights Act.

Unanimity, moreover, serves Robert’s strategic goal of getting the court to speak with a clearer voice. He told the Senate Judiciary Committee in 2005 that the chief justice “has a particular obligation to try to reach consensus,” and he cited how Chief Justice Earl Warren had secured unanimity in the 1954 Brown v. Board of Education case striking down school segregation.

“He appreciated that the impact would be far more beneficial and favorable and far more effectively implemented with the unanimous court, the court speaking with one voice, than a splintered court,” Roberts noted.

Multiple concurring opinions, in which justices agree on who wins a case but may disagree on the reasoning, can particularly muddy the waters, Roberts told senators at his confirmation hearing. These concurring opinions can reveal the heated conflicts that remain unresolved beneath the surface of a seemingly harmonious conclusion. Roughly two out of three opinions this term have been unanimous.

At least 40 concurring opinions have been filed this term. Over the past week, notably, Justice Antonin Scalia twice denounced the reasoning of a court opinion whose bottom-line conclusion he agreed with.

“I prefer not to take part in the assembling of an apparent but specious unanimity,” Scalia fumed in a concurring opinion filed in the Massachusetts abortion clinic case.

Scalia, joined by two other justices, would have gone further in restricting laws such as the abortion clinic measure. Something similar happened when the court ruled Thursday on a challenge to presidential recess appointments.

All nine justices agreed that President Barack Obama had acted illegally when he made several appointments to the National Labor Relations Board during a three-day Senate “recess.” The unanimity amplified the court’s rebuke of the president’s overreach. Just below the surface, though, Scalia and three other justices denounced their five colleagues as not going far enough.

Roberts joined Scalia’s dissent-like, 49-page concurring opinion in the recess appointment case. Scalia’s 10 concurring opinions lead those of all other justices.

Several 5-4 decisions might come Monday, when the court releases opinions in the last two remaining cases of the term. One involves for-profit corporations seeking religious exemptions from the Affordable Care Act’s mandate to provide contraceptive coverage, and the other involves the rights of public employee unions.

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