The Patriot Post® · The Cost of the Court's Unanimity
When John Roberts was confirmed as Supreme Court Chief Justice in 2005, he spoke of “judicial modesty.” What he meant was relatively simple. “You don’t, obviously, compromise strongly held views, but you do have to be open to the considered views of your colleagues,” he said. In particular, he added, the chief justice “has a particular obligation to try to achieve consensus.”
Achieving consensus has been one of Roberts’ chief goals, and in the past year he succeeded in numerous cases – about half of the Court’s decisions last term. The Washington Post reports, “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.” In fact, Barack Obama has been on the losing end of an astounding 20 unanimous decisions. Of course, that speaks as much to Obama’s incessant overreach as it does to Roberts’ diplomacy.
The just-concluded term was particularly brutal for the White House. “President Obama has endured a painful Supreme Court term, suffering a series of bitter defeats at the hands of justices who, at times, took direct aim at his policies,” The Hill notes. “The White House found itself on the losing end of most of the term’s biggest cases.” Whether it was Hobby Lobby, free speech “buffer zones,” abuse of recess appointments, or warrants for cell phone searches, the former constitutional lawyer in the Oval Office was either directly rebuked or didn’t get what he wanted.
Unfortunately, Roberts’ penchant for seeking unanimity leads to needlessly narrow decisions and missed opportunities. For example, though it was a 9-0 decision, June’s ruling striking down a Massachusetts anti-pro-life speech law was too limited. Plaintiffs (rightly) claimed the 35-foot “buffer zone” around abortion clinics targeted only pro-life speech since clinic employees were not restricted in any way. Yet in order to win over the Court’s leftists, Roberts narrowed the opinion to hold merely that the zone was bigger than necessary. Though four justices thought the zones entirely unconstitutional, the “unanimous” ruling left in tact a precedent upholding more limited zones.
In the recess appointments case, the Court rejected the president’s claim to be able to determine when the Senate is in session only to have the justices determine when the Senate is in session. Justice Stephen Breyer, writing the unanimous ruling that was not at all unanimous in its reasoning, established a 10-day minimum for a Senate recess to allow for a presidential recess appointment.
Political analyst George Will explains why Roberts’ goal of agreement isn’t necessarily desirable: “Unanimity is not only spurious, it is injurious when purchased at the price of compromises that suggest disingenuousness. The Constitution’s purposes and architecture were sacrificed twice to produce 9-0 decisions. One denied the obvious – that Massachusetts’ law was written to impede anti-abortion speech. The other flinched from the fact that the Recess Appointments Clause requires judicial enforcement, not Breyer’s judicial embroidery to allow continuation of behavior that both elected branches under both parties have found convenient. Two conservative priorities, defending freedom of speech and curtailing arbitrary exercises of presidential power, were undermined by judicial minimalism – a.k.a. judicial restraint – that conservatives praise more frequently than thoughtfully.”
Such “judicial restraint” was at play in Roberts’ infamous gymnastic rewrite of ObamaCare in order to save it. That atrocious ruling remains in a class all by itself.
In short, John Roberts is far preferable as chief justice to many alternatives, but he’s not always the constitutional defender we’d like him to be. We appreciate his goal of presenting a united front to limit the political fallout of decisions, but the Supreme Court’s duty is first to uphold the Constitution.