Civil and Human Rights

For these Supreme Court justices, unanimous doesn’t mean unity

By Robert Barnes


Supreme Court experts have been looking for the right word to describe the term’s record ­number of agree-not-to-disagree unanimous decisions: Faux-nimity? Un-unanimous?


The number of rulings without dissent skyrocketed to rates not seen since the 1940s, and the court’s percentage of closely divided decisions dropped to a modern low.


Such cases can mask deeper conflicts, and those were on display in the term’s finale this week. The decisions announced Monday showed that stark divisions — conservative opposed to liberal; Republican appointees on one side, Democratic ones on the other; even women vs. men — exist on the court beneath a frequent veneer of 9-to-0 comity.


“The court is still deeply divided on fundamental issues,” said Steven R. Shapiro, legal director of the American Civil Liberties Union.


Nonetheless, the outpouring of agreement is noteworthy. And it marks a change from recent fractious terms under Chief Justice John G. Roberts Jr., who began his stewardship of the court nine years ago with a goal — rarely realized — of having the court speak more often with one voice.


The justices this term found ways to unanimously strike down a law creating buffer zones around abortion clinics, require the police in most cases to get a warrant before searching someone’s seized cellphone, and reject President Obama’s attempt to appoint high-level officials without the Senate’s approval.


Roberts brokered some of the agreements. In the cellphone case, he rallied the rest of the court around a broad ruling about privacy rights in the digital age. He was restrained enough in knocking down Massachusetts’s law on the buffer zones to draw the support of the liberal judges; the opinion suggested alternatives that might be constitutional.


“There seems to be something afoot, an effort by the court to try to come together, even if it is just nominally in the result, if not in the reasoning,” said Thomas G. Goldstein, a Supreme Court practitioner and the publisher of ­SCOTUSblog.


In some instances, the justices were able to paper over their differences to resolve the specific case at hand and left tougher questions for later.


“At the most, what I see are a series of cases in which a majority decided to avoid broad, constitutional holdings that would have upset settled expectations, while smaller groups of justices would have liked to have gone farther,” said Jeffrey Fisher, a Stanford University law professor who often argues before the court.


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.


“Although not broadcast in the media, we agree much more often than we disagree,” Justice Ruth Bader Ginsburg told appeals-court judges in a speech last month. “That is notable, I think, because we tend to grant review only when other courts have divided on the answer to the issue we take up.”


But at the time Ginsburg was making those remarks, she was working on her dissent in the Hobby Lobby case involving the Affordable Care Act’s contraceptive mandate. It was a lengthy, point-by-point takedown of the majority’s opinion, announced Monday, that corporations can reflect the religious views of their owners and refuse to offer employees contraceptive coverage that conflicts with those beliefs.


Ginsburg wrote that it was a decision of “startling breadth” that would let corporations opt out of almost any law “they judge incompatible with their sincerely held religious beliefs.” For emphasis, she read parts of the dissent from the bench.


In some of the unanimous cases, the rulings came with the court’s version of an asterisk — a “concurring” opinion from one or more justices who disagreed with the majority’s reasoning of the case. Some were as stinging as a dissent.


“I prefer not to take part in the assembling of an apparent but specious unanimity,” an impatient Justice Antonin Scalia wrote in the abortion-clinic case. He wanted the court to go further than five of the justices did, to overturn a precedent that allowed protest restrictions around abortion clinics.


And in the case involving Obama’s use of recess appointments, there was a rare move. Scalia read a concurrence from the bench, to show how deeply he disagreed with the reasoning of the case.


All members of the court agreed that Obama had exceeded his constitutional powers in making appointments to the National Labor Relations Board while the Senate was in pro forma sessions. But Justice Stephen G. Breyer wrote for four other members of the court to say presidents retain other powers to make recess appointments largely because of historical practice and ambiguous language in the Constitution.


Scalia vehemently disagreed with Breyer, saying the powers granted to the president are dramatically less than that, and Roberts and Justices Anthony M. Kennedy and Clarence Thomas joined Scalia’s opinion.


“That was a case where all the sutures were showing,” said Washington lawyer Miguel Estrada, who represented Senate Republicans in the case.


Will Baude, a University of Chicago professor who once clerked for Roberts, said the court’s new level of agreement might have something to do with the fact that the justices are more comfortable with each other.


The current court has been together since Justice Elena Kagan joined in 2010.


But Baude and Estrada are skeptical of claims that the court is worried about appearances.


“For the most part, the court doesn’t care what people say about it,” Baude said.


Estrada agrees, adding that justices are among the few who can neither be fired nor promoted.


When the justices split, it was over familiar topics.


Again, over the strenuous dissent of the court’s liberals, the conservative majority this term struck down a campaign finance regulation. The decision said attempts to limit the total amount of money wealthy donors can contribute to candidates and political committees violate free-speech rights. It was the fifth campaign finance regulation to fall since Roberts and Justice Samuel A. Alito Jr. joined the court.


And religious groups were big winners at the court. They brought the challenge to the Massachusetts buffer-zone law. The Hobby Lobby decision was a resounding victory for those who said government policies cannot intrude on religious beliefs.


And the court said in Town of Greece v. Galloway that legislative bodies such as city councils can begin their meetings with prayer, even if it plainly favors a specific religion.


If other court decisions found middle ground, that ruling did not, according to those who opposed it. “People who were in favor of separation of church and state lost as badly as we possibly could have,” said Eric J. Segall, a law professor at Georgia State University.


One case that truly was unanimous might carry the most important lessons of the term. It was the decision in two combined cases about whether warrants are necessary before police can examine cellphones seized after an arrest.


Criminal cases are often ones where the lines between the court’s liberal and conservative wings are blurred.


“There’s been a lot of talk in progressive circles about how you want to avoid taking cases to this particular Supreme Court,” said Elizabeth Wydra, chief counsel with the liberal Constitutional Accountability Center. “One of the areas we’ve seen the Roberts court taking what might be called liberal positions are areas where there are a liberal-libertarian alliance.”


Noel Francisco, a Washington lawyer and former Scalia clerk who represented challengers in the recess appointments case, said there is the same gravitation on the right.


“I think one of the most interesting phenomenon we’ve seen on the court over the last 30 or 40 years is what I would call the evolution of the conservative instinct,” Francisco said. It no longer means “a thumb on the scale for the government.”


Roberts’s opinion in the cellphone case made that clear and also spoke broadly about how technology has changed the way the court must apply its precedents.


Modern cellphones “hold for many Americans the privacies of life,” Roberts wrote. “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”


Such sweeping language from a unanimous court makes many believe that the cellphone case is the most important of the term.


The issues raised are “going to be with us for a long time,” said the ACLU’s Shapiro. “It opens a new era of constitutional law.”

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