In Defense of a Divided Court

By Reynolds Holding

When the U.S. Supreme Court scolded the Bush Administration last year for attempting to try suspected enemy combatants on the cheap, the ruling rested largely on one of the court's most honored precedents. It's the same opinion that helped force Richard Nixon to cough up those embarrassing tapes in 1974. And for more than 50 years it has guided the court in deciding whether a President has acted within his powers or whether he has stepped over the line.

The interesting thing is, it's not a majority opinion. It's a concurrence, a separate statement that a lone Justice, Robert Jackson, cooked up to accompany the court decision striking down Harry Truman's plan for taking over the steel mills in 1952. But its elegant reasoning long ago made it the go-to opinion when the court puts a President in his place.

The Jackson concurrence comes to mind because in several speeches and interviews since early last year, Chief Justice John Roberts has been pursuing a push for unanimity on the court. He wants the Justices to speak with one voice as much as possible, to decide cases 9 to 0, with no pesky dissents or concurrences. As he advised a crowd two weeks ago at Northwestern University School of Law, "The court functions most effectively as a judicial institution saying what the law is when it can deliver one clear and focused opinion of the court."

You figure that, coming from the cerebral Roberts, the argument probably makes sense. The court, after all, wisely achieved unanimity in Brown v. Board of Education, the landmark school-desegregation decision that left no doubt about what the law should be. By contrast, the splintered ruling in Bush v. Gore suggested that partisanship rather than the law guided the court's resolution of the 2000 presidential election.

But the price of unanimity is the loss of concurrence and dissent, the expression of views that can strengthen the law by showing us how it came to be, where it should develop and why the most important rulings are never easy. Sometimes the doubters are right, and if their voices disappear, so might the prospect of not-yet-recognized freedoms or protections for many Americans.

For instance--to sound self-absorbed--take journalists. They haven't fared well recently with the courts, but for decades reporters shielded their sources by citing a famous concurrence from Justice Lewis Powell. In 1972, Powell joined the court's majority in denying journalists an exemption from testifying before a grand jury. But in a separate opinion, he offered an alternative--a test balancing press freedom against the obligation to testify--that many courts used to keep reporters off the witness stand. The opinion no doubt encouraged sources to speak and so allowed us all to become better informed.

Court dissenters have also been crucial to the civil rights of African Americans. In 1896 the Supreme Court ruled that keeping blacks and whites separate but equal was just fine. Only Justice John Harlan found fault with that state of affairs, writing as the lone dissenter in Plessy v. Ferguson that "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." It would take more than a half-century, but the wisdom of his words finally persuaded the court to acknowledge in Brown that "'separate but equal' has no place" in public education.

Or consider Japanese Americans during World War II. In 1944 a majority of Justices upheld the conviction of Fred Korematsu for resisting internment in a "relocation center." That prompted Justice Frank Murphy to write in dissent that the policy of relocating or incarcerating ethnic Japanese occupied "the ugly abyss of racism." His opinion helped lead a federal court to vacate that conviction 40 years later.

All of us can speak more freely, get counsel in a criminal case and keep the police out of our bedrooms because, at some point, maverick Justices stood up to a court majority. Roberts surely knows this, yet he barrels ahead with a campaign for unanimity that is already showing results. Over the past two terms, the number of majority opinions rose from 79 to 81, but the number of dissents dropped from 63 to 60, and concurrences from 61 to 35.

What's troubling is just how Roberts often gets to 9 to 0: by pushing for decisions on grounds narrow enough for each Justice to accept. That makes for some pretty thin rulings, like a 2005 nondecision on whether a New Hampshire law limiting abortions for minors could survive without an exception for the mother's health. All that the Justices could agree to do unanimously was dump the case back on the lower court.

This is not helpful. Fortunately, with the term's most contentious issues--like abortion, affirmative action and global warming--still ahead, the unanimity push may not get much further. As the new guy last term, Roberts could count on his colleagues to get along by going along. This spring should be different. As University of Chicago law professor Geoffrey Stone says, "In the end, the Justices are free agents." Maybe they will agree on the easy cases, but even that's doubtful. If the cases were truly easy, they wouldn't have reached the Supreme Court.