If the First Two Branches are Abstaining,
Perhaps the Third Branch of Government Can Reach Consensus When It’s Able and Allow
Time to Develop When It’s Not
Ok, so picture this. You’re in a courtroom on trial for
murder. After a few hours of deliberation
a jury of nine rather elderly men and women returns with a verdict. The foreman rises and says, “Well, we took a
vote and five of us said the defendant was guilty, while four were firmly
convinced of his innocence. So, we’re
going with guilty.”
Wouldn’t that decision just chafe a bit
over your next thirty years in prison?
Or the next thirty years of aborted
babies being killed, or ginormous political contributions by “the person” known
as Exxon-Mobil, or even just eight years of a president who says “nucular,” if you happen to be on the other side of
that particular issue?
What I’m arguing for here is the lost
art of compromise which allows for more unified decisions. This results in a more convincing verdict
where one is indicated, or the time and debate necessary for the national
populace to come to grips with an issue that may profoundly change America
BEFORE five of nine political appointees (or really just one, typically named
Kennedy or O’Connor) changes it for them.
And change
is the focus. A constant refrain we hear
is, “How did the Supreme Court change America this term?” But that’s not its role in government. Determine the legality of new federal laws,
interpret old laws as they apply to modern contingencies, and check the power
of Congress and the President. That’s
about it. The Constitution does not mandate
the Judicial branch to institute sweeping changes contrary to what the
representative portions of the government have passed or not yet passed.
Recognizing the effective stagnation in the
Legislative and Executive pools of action, advocacy groups have taken direct
aim at the Judiciary, and specifically the Supreme Court, to make the comprehensive
country-wide policy shifts they can’t get passed elsewhere. Bestowing newly found rights or invalidating
prior precedents in “party line” 5-to-4 decisions before some consensus is
arrived at in the citizenry is not in the best interests of the United States. These frequently fail to provide closure to the
issue at hand, leaving a legacy of divisiveness and continued legal actions at
the lower levels, as well as a significantly unhappy public for years to come. It would serve the country well for the Court
to continue the progress towards compromise that it seems to have hit this last
summer session.
How do they justify these 5-to-4
decisions, you may ask. Well, the short
answer is: divisive issues are their
stock and trade. If it wasn’t an issue
of some debate, the Supreme Court would not be involved. As to judging the legality, frequently the
lower courts have come down on both sides of the issue prior to it being taken
up by the Court, so there’s obviously enough justification no matter what they
decide. Frankly, it appears most
contentious issues are settled “above the law” and it’s a matter of philosophy
by that point. The judges are typically
split along the lines of a liberal interpretation of the Constitution wherein
new rights and government powers are “natural” extensions of what the Founding
Fathers really meant (or would have, except they lived in a not so modern age,
so they can be forgiven), and the conservative strict interpreters who would
generally leave well enough alone unless there’s a Constitutional passage
directly addressing the issue at hand.
 |
| "Gentlemen, should cell phones be invented, perhaps the 4th amendment ought to apply..." |
They already know how they want to rule
in the matter, especially if it hits a touchstone with them (e.g. freedom of
speech, women’s rights, affirmative action); it’s just a small matter of
providing an effective defense, convincing the swing voter(s) and counting off.
Lately, however, we’ve seen a swing in
the other direction. In a nod to comity
a whopping total of two thirds of the cases decided this last term were
unanimous, even more than the first term of the Roberts Court and the highest
percentage since 19531 (or the early 1940’s2,
depending on who you ask…).* One example
generally cheered by the populace at large was in Riley v. California regarding police seizure and
search of cell phones on arrestees where the Court literally said, “Get a
warrant.” After backing law enforcement
for many years, during which technology marched on and cell phones became ever
more than just a phone, the writing was on the wall with a previous unanimous
2012 decision against police attaching GPS devices without warrants. Over a suitable period, the justices successfully
and unanimously wrestled the
application of the old school 4th amendment to issues in the digital
age.
That’s not to say that there aren’t
weaknesses in highly cobbled compromises, but two proven2 advantages
of a more unified decision come to mind.
“Not only are unanimous opinions less likely to be overturned, they are
also less likely to overturn prior precedents in the first place,” as Jonathon
Adler wrote in an editorial earlier this month.
Another main selling point in my opinion pertains to the avoidance of
years of general upset. Adler continues,
“At the same time, coalescing around a narrow holding allows the Court to avoid
premature resolution of a potentially divisive question, perhaps leaving it to
be resolved when it can be resolved in a unanimous way or even putting it off
indefinitely. This is itself a virtue of
judicial minimalism, according to some, as there is no reason to think every
important question must be decided by the Court — and by refraining from
answering some questions, the Court may discourage potential litigants from
needlessly stretching the bounds of what has been allowed (or prohibited) in
the past.”3
Turns out, this compromise and consensus
thing has a lot of precedent behind it, and has even occurred amongst the
fractious people wearing the Harry Potter robes. Historically through the 1800’s up until WWII,
the Supreme Court was enamored with the idea and regularly went to great
lengths to achieve more unified decisions.
Transformation of the Supreme Court from one of consensus and unanimity to one of
frequent dissents and split decisions occurred in 1941 under Chief Justice
Harlan Fiske Stone and, according to Cass Sunstein of Harvard Law, is expected
to carry through for the foreseeable future.4
But we’ve got some power in our corner. More recently, Chief Justice Roberts stated
in an interview with Jeffrey Rosen for The
New Republic, “I do think the rule of law is threatened by a steady term
after term after term focus on 5-4 decisions.
I think the Court is ripe for a similar refocus on functioning as an
institution, because if it doesn’t, it’s going to lose its credibility and
legitimacy as an institution.”5
Roberts was concerned about this erosion right from the get-go at his
2005 confirmation hearings, probably influenced by the public’s growing loss of
confidence in the highly polarized Congress/Presidency. So, while the era of the individualist
justice may still be upon us, a trend towards compromise and less divisive
output may be well worth supporting.
One big reason this may come to pass is
this increasingly partisan atmosphere. The
Court may be drawing battle lines internally on each issue, but they have an
overriding stake in the perception of the institution. Yes, granted, defending the law and the
Constitution is no popularity contest, but to do it effectively requires the
faith and support of the nation to some degree, and the judiciary system
beneath to fall in step. Per Robert
Barnes from the Washington Post, “The nine justices often resemble a family,
more than willing to mix it up and call each other out, but touchy about
outside criticism. As the court’s reputation has dropped in public opinion
polls — a new Gallup poll shows that confidence in the court has eroded to
about 30 percent** — the justices have resisted comparisons to the rest of
gridlocked Washington and its partisan battles."6
Reflecting on the latest term of the
Supreme Court, leading liberal scholar of constitutional law Laurence Tribe of Harvard Law School
notes, “But it’s a long game the court seems to be playing. The Roberts Court seems
less willing to reshape our social landscape radically than the Burger Court
appears to have been with Roe v. Wade in 1973.
Look how in the past year lower courts, legislatures and voters have
worked in concert to bring same-sex marriage to many states rapidly—something
the Supreme Court could have done in one fell swoop last term with a broad
ruling in Perry, and that it might finally be ready to do in the coming term.
These incremental decisions again show a cautious court playing a part—and not
a solo—in the symphony of American government.”1
There may be hope yet.
*Although this may be due in part to the case mix,
specifically a plethora of patent cases, the justices do determine their docket
to a large degree. Here they spoke
unanimously in resolving lingering intellectual property issues in regard to
such areas as loosely written business method patents (rebuking an appeals
court in the process), reestablishing the requirements (rebuking the same
court), and generally destabilizing patent trolls by ruling against “patents that
never should have been issued.”7
**May be a different poll question
than those I found, but the trend is evident.
Fifteen and even five years ago the results were roughly over 60%
Approval with 28% or less Disapproval.
In 2013 this had sunk to a virtual tie at 47% v 46%. In an associated question, participants were
asked how much trust and confidence they had in the branch of the government
headed by the Supreme Court – fifteen years ago, the public said 75-80% had a
Great Deal or a Fair Amount of Confidence; that was down to 62% in 2013.8
1. Politico
Magazine, 1 Jul 14, http://www.politico.com/magazine/story/2014/07/how-the-supreme-court-changed-america-this-year-108497.html#.U_JtBmM0-So
2. Adam Liptak, “On Supreme Court, Does 9-0 Add
Up to More Than 5-4?” The New York Times,
11 Aug 14, http://www.nytimes.com/2014/08/12/us/politics/when-justices-disagree-public-may-not-care.html?_r=0
3. Jonathon H. Adler, “Is Greater Unanimity on
the High Court a Good Thing?” The Washington Post, 11 Aug 14, http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/08/11/is-greater-unanimity-on-the-high-court-a-good-thing/
4. Cass R. Sunstein, Harvard
Law School,
21 Jul 14, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2466057
5. Jeffrey Rosen, Legal Affairs Editor, The New Republic, http://www.newrepublic.com/article/politics/103656/obamacare-affordable-care-act-critics-response
6. Robert Barnes, “For these Supreme Court
Justices, Unanimous Doesn’t Mean Unity”, The
Washington Post, 1 Jul 14, http://www.washingtonpost.com/politics/courts_law/for-these-supreme-court-justices-unanimous-doesnt-mean-unity/2014/07/01/94003590-0132-11e4-b8ff-89afd3fad6bd_story.html
7. Daniel Fisher, “Supreme Court Slaps Loose
Business Method Patents Federal Circuit in Rulings,” Forbes, 2 Jun 14, http://www.forbes.com/sites/danielfisher/2014/06/02/supreme-court-slaps-loose-business-method-patents-federal-circuit-in-rulings/
8. Gallup Poll results, http://www.gallup.com/poll/4732/supreme-court.aspx
