Advancing a Free Society

A Free Speech Year at the Court

Monday, September 19, 2011

The Supreme Court completed its 2010 term at the end of June with no blockbusters, few surprises, and an unbroken string of victories for free-speech plaintiffs. It was a year to take a deep breath before the onslaught of divisive cases next year: Same-sex marriage, the constitutional right of religious groups to choose their clergy without government interference, and enforcement of laws against illegal immigration are likely to be among them. We do not yet know whether the Court will tackle the health-care issue next year as well, but the fact that the two courts of appeals that have addressed the issue have come down on opposite sides makes it highly probable.

Despite the usual press rumblings about a “divided court,” almost half the cases—48 percent—were decided by a unanimous vote, and another 28 percent were decided with only one or two dissents. During his confirmation hearings, John Roberts declared his hope that the Court under his leadership would decide cases more narrowly, with greater consensus. This seems to be happening. For the last three years, the frequency of unanimous decisions has been steadily increasing.

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