The Supreme Court Still Knows How to Find a Consensus

By Max Bloom

Thursday, June 29, 2017

One popular school of thought holds that the Supreme Court is by now effectively a political institution, that Democratic appointees on the Court sit there with the purpose of enacting Democratic policies and Republican appointees intend to enact Republican policies. In this telling, it is naïve to think that justices should be selected by their commitment to a particular approach to jurisprudence — unless that approach is to blindly support the legislation of one particular party. It is this school of thought at work when, for instance, commentators claim that a particular decision is “heartless” and ignore the question of whether or not it is good law; it is this school of thought at work when writers suggest that the Supreme Court could use a justice or two without a legal background, or when law professors suggest that perhaps the Constitution doesn’t have very much to do with jurisprudence anymore.

This school of thought is wrong. It is not merely normatively wrong — as if there were no benefit in having a stable, democratically established basis for law — but wrong as a descriptive account of how the Supreme Court operates. The Supreme Court is at times partisan, and the most hot-button issues do tend to produce 5–4 or 6–3 votes, but the vast majority of cases before the Supreme Court hinge on complicated cases of law that require the full expertise of the justices. Many of these cases are decided unanimously. In fact, a surprising number of politically contentious cases are decided unanimously or close to unanimously.

The most recent term, in fact, was the least partisan since the middle of the 20th century. Over half of the cases were unanimous, and only 14 percent were decided by a 5–3 or 5–4 split. To some degree, this can be attributed to the fact that the Court had only eight justices for much of the term, meaning the justices had to work to avoid tie votes, or to the relatively inconsequential roster of cases the Court dealt with. But even in a more typical term, approximately 80 percent of votes are in support of the majority opinion, and only about 20 percent of cases are determined narrowly. The 5–4 cases that get national attention are in fact somewhat anomalous.

Take the highly consequential set of Supreme Court opinions from Monday. Perhaps the biggest was the opinion in the Trinity Lutheran case, one of the most hotly watched cases of the term, which concerned the constitutionality of a Missouri provision that prevented a church from obtaining state funds as part of a program to renovate playground surfaces. The case quickly acquired a partisan dimension: Liberals claimed that a ruling would “obliterate the divide between church and state,” and the ACLU filed a brief in favor of the state of Missouri. But the ultimate decision was 7–2, with Kagan and Kennedy joining the four reliable conservatives in the majority opinion and Breyer concurring. The Court decided as well on Monday to lift the injunction on Trump’s travel ban for everyone who lacked a “bona fide relationship” with an American person or entity. The travel ban, of course, is one of Trump’s central policies and has arguably been the most contentious issue of his first six months as president. But the decision to lift most of the injunction was unanimous, although three conservatives justices — Thomas, Alito, and Gorsuch — would have reinstated the entire ban.

Then there are all the cases we don’t hear about — cases that are often highly technical or esoteric but can still be very consequential. To take just a few examples from the Court’s most recent term: Salman v. United States, which found unanimously that a certain type of stock tip counted as insider trading; Expressions Hair Design v. Schneiderman, which found unanimously that a New York law forbidding businesses to phrase their credit-card fees in a certain way violated the First Amendment; Samsung Electronics Co. v. Apple, which unanimously settled a highly contentious patent case involving smartphones. These cases demonstrate the breadth and detail of knowledge employed by the justices, who must be able to operate in fields as diverse as First Amendment jurisprudence, criminal statutes, and patent law. That so many of these cases, involving such technical issues, are decided unanimously is a testament to the ways in which highly qualified thinkers can form a consensus on difficult matters of law.

These cases may involve less high-profile issues than, say, gay marriage and gun control, but that does not mean they are unimportant. The ability of the Supreme Court to deliver consistent guidelines on the entire scope of American law — from how a specific statute must be interpreted to complicated questions over jurisdiction to the rules governing class-action certification to the limits of sovereign immunity — undergirds our legal system. Appointing partisan justices without regard for legal qualifications would be like hiring Jackie Chan as a police officer — sure, he’s very useful the 1 percent of the time when martial skills are of paramount importance, but is he really adept at the less exciting day-to-day work that makes up most of the profession?

To be sure, 5–4 decisions do exist, and there is no shortage of opinions, even critically important opinions, that make a lot of political sense but very legal sense. Justices, even on the Supreme Court, are imperfect and too often are motivated by ideological principles rather than by a commitment to the principles of jurisprudence. But it’s wrong to see the entirety of the Court in this light: For every 5–4 decision that polarizes American society, there are dozens of unanimous and near-unanimous decisions that clarify important legal questions and provide guidance to the lower courts, not to mention the cases like Trinity Lutheran where an unexpected alignment of justices reminds us that abstract principles can still best partisan considerations. The Supreme Court may not be perfect, but it is hardly the devil we so often make it out to be.