David Adler: Some Supreme Court decisions belie goal of unity

July 3, 2014 

When testifying before the Senate Judiciary Committee during his confirmation hearings in 2005, Chief Justice John Roberts told senators that he hoped to encourage justices of the U.S. Supreme Court to seek unity whenever possible as a means of overcoming the 5-4 decisions that had characterized the work and the fractious nature of the Burger and Rehnquist courts before him.

Roberts' goal of unanimity, achieved at a higher level at any time since the 1940s, represents among other things an effort to protect the reputation of the High Tribunal, plumbs the depths of the court's history.

In 1801, Chief Justice John Marshall persuaded his colleagues on the court to abandon the practice of issuing seriatim opinions - individual opinions - in favor of his idea of issuing an "opinion of the court," part and parcel of his plan to strengthen the standing of the institution. Since then, a rush of justices diverse in their views, values and doctrinal approaches has urged the responsibility of members to act as gatekeepers of the court's reputation.

Accordingly, Felix Frankfurter told Franklin D. Roosevelt that it was "critical" for the American people to believe that judges "are like monks in a monastery," dutifully giving voice to the meaning of the Constitution without imposing their views. William O. Douglas said that the justices are simply a "mouthpiece" for the values enshrined in the Constitution.

The maintenance of the court's integrity, a duty embraced by justices across the decades reflects the fact, as Stephen Breyer has written, that the court must command the respect of the president, Congress and the American people, if its decisions are to be implemented and followed. As a consequence, a long streak of 5-4 decisions is often suggestive of differences in ideology and values that color the justices' interpretation of the law. If that perception assumes widespread acceptance, the court's prestige, reputation and, ultimately, its power, will decline. Because no other branch has the incentive to protect the judiciary, it falls to its members to safeguard their own institution.

Chief Justice Roberts' emphasis on unity, if not unanimity, has been acclaimed by many commentators, particularly at a time when the court's public approval ratings hover around a meager 30 percent, according to a new Gallup poll. While that low level reflects Americans' general dissatisfaction with the performance of our government - Congress at about 10 percent and President Obama at 44 percent - the court's greater need for respect, since it lacks the power of the "purse and sword," creates an urgent need to dispel perceptions of ideological rifts and factions on the bench

Roberts' aim is laudable, and his leadership skills evident, in rallying various members of the court, particularly Justice Scalia, to write concurrences, even if they sound like dissents. But the assertion of unity among the justices is more than meets the eye. Some of the court's decisions this past term, including the rulings striking down the buffer zones surrounding Massachusetts' health clinics and the recess appointments of President Obama to the National Labor Relations Board, reflect a thin agreement on the results, but paper over major differences among the justices on freedom of speech, rights of women and presidential power.

The decisions, moreover, upholding prayer to open city council meetings, and those striking down affirmative action programs, finance campaign regulations and, on the last day of the court's session, the Affordable Health Care Act's requirement to provide comprehensive coverage of contraceptives, reveal deep-seated differences between the conservative and progressive wings of the court, more than they reveal doctrinal differences.

David Adler is the Cecil D. Andrus professor of public affairs at Boise State University, where he serves as director of the Andrus Center for Public Policy.

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