Shortly after taking office, Chief Justice John Roberts embarked on a campaign within the Court and, unusually, in the press, to revive the tradition of unanimity in Supreme Court decisions. He has spoken of his concern that the Supreme Court is losing its legitimacy in the public ’s mind because of the frequency of dissenting opinions, arguing that this diminishes the respect and acceptance its decisions receive, and that the Court ’s public standing is enhanced if its decisions are unanimous, or nearly so. For example, in a lengthy interview with legal journalist Jeffrey Rosen published last year in the Atlantic, he suggested that “the Court is . . . ripe for a . . . refocus on functioning as an institution, because if it doesn ’t it’s going to lose its credibility and legitimacy as an institution.” The chief justice harked back to the early days of the Supreme Court under the leadership of John Marshall who, among other things, led the Court to adopt as consistently as possible the practice of speaking with a single voice. Not infrequently, the voice was that of Marshall himself, but the point is that the Court decided cases unanimously, without dissents and concurrences.
The chief justice’s campaign is conservative in the strict sense: There can be no dispute that fractionated decisions used to be a rarity and have become commonplace on the Court. Until the early 1940s, there were fewer than ten dissenting opinions for every 100 issued by the Court; after 1941, that figure increased sevenfold, and has remained at that level or higher ever since. The justices ’ work product increasingly consists more of composing dissents and concurrences than of writing opinions for the Court: until 1941, 80 to 90 percent of all opinions were opinions for the Court; now the number is less than 50 percent. More than a third of its 68 rulings in 2006–07 were decided by a 5–4 margin — and others by less lopsided, but still nonunanimous, votes — with separate opinions proliferating like mushrooms after a summer rain.
At the extreme, this proliferation of opinions makes a joke of the Court’s core function, “to say what the law is,” in Chief Justice Marshall’s phrase. Better than any statistics is the following verbatim excerpt from the Supreme Court ’s reports, published some years ago by the New Yorker, without comment, under the heading “The Jurisprudential Life”:
Blackmun, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts iii-a, iv, and v, in which Brennan, Marshall, Stevens, and O’Connor, JJ., joined, an opinion with respect to Parts i and ii, in which O’Connor and Stevens, JJ., joined, an opinion with respect to Part iii-b, in which Stevens, J., joined, and an opinion with respect to Part VI. O’Connor, J., filed an opinion concurring in part and concurring in the judgment, in Part ii of which Brennan and Stevens, JJ., joined. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Marshall and Stevens, JJ., joined. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Brennan and Marshall, JJ., joined. Kennedy, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Rehnquist, C. J., and White and Scalia, JJ., joined.
This was how the modern Court “decided” a case involving important issues relating to when a Christmas crèche could be displayed on public property.
In calling for consensus on the Court, Chief Justice Roberts has on his side the overwhelming majority of the people who have served as justices during its history. Indeed, so much was consensus the norm prior to the 1940s that there was a flavor of ethical breach associated with dissent. For example, Canon 19 of the 1924 Canons of Judicial Ethics directed the members of “courts of last resort” to “use effort and self-restraint to promote solidarity of conclusion and the consequent influence of judicial decision. ” The historical record as revealed in internal Supreme Court documents leaves no doubt that the common practice was for justices who had expressed disagreement with the majority ’s view in the Court’s conferences to refrain from doing so publicly. Justices who accepted this norm of consensus and adhered to it include men remembered today in part for their dissents, such as Louis D. Brandeis and Oliver Wendell Holmes. Thus Holmes, known to history as the “Great Dissenter,” actually viewed the practice with distaste, feeling it “useless and undesirable as a rule, to express dissent.” Nor did he like to be praised for his dissents: “I rather shudder at being held up as the dissenting judge and more or less contrasted to the Court, ” Holmes wrote in a letter to Felix Frankfurter.
Foreign practice also supports the chief justice’s concern about published dissent. In the legal systems of continental Europe, particularly those influenced by French judicial practice, dissent is nonexistent or vanishingly rare and considered “a violation of the oath of judicial office.” Although the American toleration for judicial dissent is often said to be a carryover from the practice of the British law lords in having each member of a panel read an individual decision, when Chief Justice Marshall enforced public unanimity, he was in fact following the existing practice of the highest English court available for cases from the colonies. Moreover, the House of Lords ’ jurisdiction does not extend to declaring acts of Parliament unconstitutional. Thus the lords ’ practice cannot result in the spectacle of a divided judicial ruling setting aside the wishes of popularly elected legislators and executive officers, as increasingly happens here.
It isn’t just precedent and foreign practice that support judicial consensus, however. There are good reasons why the Supreme Court, for most of its history, and the courts of other nations have disfavored dissenting opinions. There is, first and foremost, the fundamental value of achieving respect for the Court ’s — i.e., the majority’s — decision. The principal professional obligation of justices who may have disagreed on the issue in conference, but were outvoted, is to assure that the majority ’s decision is obeyed and accorded public respect. It is hard to see any practical effect of a dissent other than diminishing the respect accorded to the majority ’s decision. At least where constitutional decisions are involved, a Supreme Court decision is final in a way that no other public act in the American political system can be said to be: It is forever beyond any possibility of majoritarian change or any change at all, barring a constitutional amendment or a change of judicial heart. How can the dissenting justice justify withholding from so momentous a public action any possible quantum of support his or her status as a member of the Court may lend to it? How can the dissenting justice excuse his or her failure to accord the decision the same degree of respect and acceptance that everyone else in the country is obliged to give it?
Beyond the question of how many votes a particular decision receives, divided rulings are always accompanied by numerous opinions. This circumstance is wildly at odds with the basic purpose of a Supreme Court decision: not only to settle the immediate dispute between the immediate parties, but also to enable the rest of us — or at least our lawyers — to understand what the law is concerning related or similar issues. Indeed, Chief Justice William Howard Taft, the architect of the modern Supreme Court, in explaining why he sought a broad discretion for the Court to decide which cases it would hear and rule on, said — in testimony before Congress in 1922 — that the Court’s “function is for the purpose of expounding and stabilizing principles of law for the benefit of the people of the country, ” and — in an address to New York lawyers in that same year — “to help the public at large to a knowledge of their rights and duties and to make the law clearer. ” Obviously, the proliferation of dissents — and, as well, “concurring” opinions which, while joining the majority’s conclusion, dissent from its reasoning — have precisely the opposite effect. Indeed, it not infrequently happens — as in the crèche case made sport of by the New Yorker — that there is no opinion for the Court, not even one for which the bare minimum of five votes can be obtained.
Moreover, the justices’ dedication of important amounts of their time to producing dissents and concurrences may be part of the reason why, over the last several decades, the number of cases the Court has heard and decided has fallen far below historic norms. As recently as 30 years ago, the Court decided 176 cases, while last term it decided just 68 — this while by all conceivable measures the number of cases involving questions of federal law that were litigated in the state and federal courts multiplied enormously. It may seem almost too obvious to mention, but it would certainly come as a surprise to the drafters of the Constitution to learn that the Court ’s members spend nearly as much time preparing nondecisive opinions as they do actually deciding cases.
The Supreme Court’s immersion in separate opinion-writing stands in stark contrast to the practice of the federal Courts of Appeals, where “dissensus” is far rarer — even though a dissenting opinion at the Court of Appeals level can be justified by the possibility of further review of the case. Indeed, the chief justice ’s campaign for reviving the tradition of Supreme Court unanimity seems to derive in part from his own experience as a member of the Court of Appeals for the District of Columbia Circuit, “whose judges,” as legal journalist Benjamin Wittes has written in the New Republic, “span the range of American politics yet manage unanimity on a far wider array of cases — including very difficult cases — than do the justices.”
Last but by no means least, a Court that often divides sharply in deciding controversial issues invites the kind of nomination/confirmation controversies that have become such an unsavory staple of contemporary political life. When every vote counts, and the Court ’s power may come to reside as a practical matter in the mind of a single “swing justice” — until recently, Justice Sandra Day O’Connor; now, Justice Anthony Kennedy — it is hard to blame people for approaching each judicial selection with the fervor and partisanship of an ordinary political election. Although Chief Justice Roberts has not made this point, his preference for unanimity or near-unanimity may well rest in part on a belief that these recurrent political melodramas have a cumulative effect that is seriously subversive of public respect for the federal courts.
The case for dissent
Yet the reaction to the chief justice’s unusual public campaign in favor of unanimity has itself been far from unanimous. Edward Lazarus, a frequent commentator on the Court and author of Closed Chambers (Times Books, 1998), challenges head-on the chief justice’s idea that unanimity is a good thing. On this view, “split decisions and passionate dissents are sometimes better [than unanimity].” As Lazarus suggests, today’s dissent may be tomorrow’s majority opinion, pointing, as defenders of dissents inevitably do, to the first Justice John Marshall Harlan ’s famous dissent from the Court’s endorsement of racial segregation in Plessy v. Ferguson. Yet, even that talismanic dissent has never commanded a Court: Brown v. Board of Education was decided on different grounds, and Justice Harlan’s assertion that “our Constitution is color-blind” has been rejected by the Court’s toleration of race-conscious policies throughout American life.
There is merit to Lazarus’s point that “dispensing justice well simply isn’t a numbers game.” But it is really a stretch to try to defend the casual recourse to dissent among today ’s justices by invoking Justice Harlan’s cri de coeur protesting a decision that, as he saw it — correctly — simply gutted a core national commitment established by the blood of hundreds of thousands of soldiers in a civil war. Indeed, even though Justice Harlan has come to be known, like Holmes, as “the Great Dissenter,” he, no less than Holmes and Brandeis, routinely suppressed his personal views once they had failed to persuade the other justices, and joined decisions he had not supported in conference. In fact, Brandeis withheld fully written opinions in the interest of not compromising the Court ’s decisiveness.
Yet Lazarus is far from alone in questioning the importance of consensus. Many justices of the Court — men far apart from one another on the ideological bandwidth — have been enthusiasts for judicial dissent. Thus the liberal William O. Douglas told the Court in a memorandum quoted in David O ’Brien’s standard text on the Court, Storm Center (W.W. Norton, 1986), that he “defend[s] the right of any justice to file anything he wants,” and Douglas wrote in one of his books, America Challenged, that “the right to dissent is the only thing that makes life tolerable for a judge of an appellate court . . . the affairs of government could not be conducted by democratic standards without it. ” In another Court memorandum quoted by O’Brien, Douglas’s conservative contemporary, Justice Felix Frankfurter, dismissed unanimity as an “appealing abstraction” that should be rejected on the basis that it “smother[ed] differences” that “ought to be expressed.” Justice Antonin Scalia, in a 1994 address reprinted in the Journal of Supreme Court History, argued that the practice of issuing concurring and dissenting opinions constitutes an integral part of the Court ’s proper functioning: “the Court . . . is not just the central organ of legal judgment; it is the center stage for significant legal debate.”
Indeed, the chief justice’s campaign to restore the tradition of Supreme Court consensus challenges what appears to be a widely-held belief that the practice of individual expression of views by the justices is desirable. Justice Scalia ’s comment aptly evokes this view: The Court’s role is not simply to decide cases; it is to reflect varying views on questions of great national moment. The opinions issued by its members are valuable not solely as justifications of a particular decision but as documents produced by state actors attempting to shine the light of reason and logic upon controversial public issues that otherwise are matters of political maneuvering and speechmaking.
There is even a certain romance associated with the practice of Supreme Court dissent. In a grandiloquent formulation, Chief Justice Hughes — who was nearly as successful as his predecessor, William Howard Taft, in discouraging published dissent — remarked that “[a] dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day . . . . ” Years ago, the liberal journalist Alan Barth published an encomium to the practice of dissent, titled Prophets With Honor (Vintage Books, 1975), describing the practice as a “form of prophecy in the Biblical sense of the term.” More recently, and on the other end of the jurisprudential spectrum, Regnery Publishing issued Scalia Dissents (2004), to broadcast the “writings” of the “Supreme Court’s wittiest, most outspoken Justice.” Whether this is what the Founders had in mind when their Constitution declared that there shall be “one supreme Court” may be doubted.
The modern proliferation of separate opinions is also an aspect of the broader change in American political life that has seen the politicization of the judicial process sharply increase: As Benjamin Wittes succinctly puts it, “For both sides in the war over the courts, [jurisprudential modesty] is a virtue to be embraced by the other. ” This view of the world is perhaps best captured by an anecdote law Professor Mark Tushnet recounts in his book A Court Divided (W.W. Norton, 2005) about Justice William Brennan, the spark-plug of the Warren Court: “Each year Brennan asked his law clerks to name the most important rule in constitutional law. Brennan gave them the answer after they stumbled around, naming one great case after another. ‘This,’ he said, holding up one hand with his fingers spread, ‘is the most important rule in constitutional law.’ Brennan knew that it took five votes to do anything, and, he may have thought, with five votes you can do anything. ”
Revolution in the Court
Chief justice roberts’ unusual public campaign for judicial unanimity involves much more than a nostalgic yearning for the halcyon days of John Marshall. The real question his argument raises is this: Why should we have a Supreme Court decision at all if the Court can ’t make up its institutional mind? What positive good is served by having a “decision” whose binding force is subverted by members of the Court itself?
The Court’s evolution into a body that feels no obligation to make up its collective mind before laying down the law has occurred without any real debate. No one decided to abandon the norm of consensus in favor of a norm of self-expression. Indeed, students of the Court cannot agree about what happened in the early 1940s, when the era of free-wheeling dissent began. Some put it down to the leadership deficiencies of Chief Justice Harlan Fiske Stone, whose tenure began in 1941, whose background did not include prior service on a Court of Appeals, and whose professional life as a law professor and law school dean — so some say — inclined him to value free, individual expression more than institutional solidarity. Stone, like his contemporary Douglas and his successors Frankfurter and Scalia (both also legal academics), highly valued dissent, and in sharpest contrast to Chief Justice Taft did not think it appropriate to try to dissuade members of the Court from dissenting. Others point to the fact that the Court Stone presided over — a Supreme Court of Roosevelt loyalists — was composed largely of men with no prior judicial experience, strong views on public policy issues, and professional backgrounds that put a high premium on self-expression.
Stone’s appointment as chief coincided with a sharp rise in dissents. But it remains something of a mystery why the Court ’s promiscuous resort to dissent has persisted, and indeed increased, long after Stone and his Court passed from the stage. It has been argued, with some force, that each succeeding generation of justices was socialized into a Court whose values did not include consensus, and whose routine practice included frequent dissents and concurrences. But there have been deliberate efforts since Stone — including, notably, President Truman’s selection of Stone’s immediate successor, Fred Vinson — to renew the tradition of Supreme Court consensus, and they have conspicuously failed. Some observers have laid the blame at the door of the justices ’ law clerks — each justice now has four — and, indeed, David O’Brien’s Storm Center reports the case of a justice publishing a concurrence for no other reason than that “it would break [his] law clerk’s heart” to suppress an opinion the clerk had worked so hard on. Yet it is hard to believe that the apprentices have so much sway over the sorcerers. The persistence of dissent remains something of a mystery.
But one thing is clear: The Court that has become so hospitable to judicial self-expression is in crucial respects radically different from the institution John Marshall led. The current chief justice ’s appeal to the example of the Marshall era fails to take account of enormous institutional changes in the Court since that time.
By far the most important, although little appreciated by nonlawyers, is the change in the Court ’s functioning — perhaps it is not too much to say in its essential character — that was authorized by Congress in 1925 at the insistent urging of then-Chief Justice Taft. In all the years prior to 1925, the Supreme Court had functioned as an appellate court to review lower court decisions, state and federal, rejecting claims of federal rights. Indeed, until 1891, it was the only federal appellate court for most such claims. It was obliged to hear nearly all claims that federal rights had been denied, whether by the lower federal courts or the state supreme courts.
But in 1925, for the first time, Congress gave the Supreme Court the power not only to decide cases, but also to decide which cases it would decide. Specifically, after lengthy and ardent lobbying by Chief Justice Taft, Congress enacted the justly named “Judges’ Bill,” which had been drafted by members of the Court and which gave the Court, for the first time in its history, the ability to decide which claims of federal right it would hear and which it would refuse to hear. Taft not only saw to the drafting of the bill, he also orchestrated congressional testimony to support it, procured backing from the American Bar Association for the proposed new law, and even wrote a portion of President Coolidge ’s state of the union address urging Congress to enact it.
Taft’s revolution in Supreme Court practice was accomplished by Congress’s adoption of a statute eliminating virtually all of the Court’s obligatory appellate jurisdiction. Where once the jurisdictional statutes applicable to the Court since the eighteenth century would have obligated it to reconsider a federal claim rejected by a lower court, now Congress empowered the Court to decide whether to grant or withhold, in its absolute discretion, an opportunity for Supreme Court review of a lower court decision. The device chosen bore the name “writ of certiorari,” for whose issuance a disappointed litigant had to file a “petition.” It would have been more direct to say that appeals simply became a matter of Supreme Court grace. While vestiges of obligatory jurisdiction lingered after 1925, in successive enactments Congress has eliminated all of the Court’s mandatory appellate jurisdiction. What’s more, by exercise of its own rule-making power and by other means, the Supreme Court itself largely rendered discretionary the small piece of its appellate jurisdiction that by statute was obligatory.
In granting the Court this discretionary certiorari power, Congress imposed no statutory limitations on how the Court might exercise it, neither in 1925 nor thereafter. In effect, Congress has made a wholesale delegation to the Court itself of Congress ’s constitutional authority under Article III to define the Court’s jurisdiction. As every law student learns, while Article III defines and grants to the courts the “judicial power” of the United States, it gives to Congress the power to limit the appellate jurisdiction of the Supreme Court, by granting it authority to provide “Exceptions” from, and “Regulations” of, the full constitutional power. The Judges’ Bill was, in substance, the enactment of a truly gigantic black hole of an “Exception” — excepting from the Court’s appellate jurisdiction any and all cases the Court chose not to hear — and an entirely contentless “Regulation” — leaving it to the Court itself to define its own jurisdiction. And in later legislation on the same subject, Congress has done nothing more than repeal statutes that imposed mandatory jurisdiction on the Court.
This momentous change in the nature of the Supreme Court’s functioning was adopted without any serious debate in Congress or within the legal profession. As Frankfurter (then a professor at Harvard Law School) concluded in his classic study of Supreme Court jurisdiction, The Business of the Supreme Court, in enacting the 1925 Judges’ Bill, Congress “deferred to the prestige of the Supreme Court and its Chief Justice, whose energetic espousal largely helped to realize the Court ’s proposal.” Energetic, and somewhat disingenuous. Much of Taft’s presentation to Congress (in his own words and through surrogates) concentrated on the supposed unmanageability of the Court ’s appellate docket under the old jurisdictional dispensation. Yet it is clear that Taft ’s driving motivation was to redefine the role of the Court in American life. As Taft expressed his view of the Supreme Court in 1922 — a view, in effect, endorsed by Congress when it passed the Judges’ Bill — “The real work the Supreme Court has to do is for the public at large, as distinguished from the particular litigants before it. ” Professor Robert Post of the Yale Law School, in a deeply-researched study of Taft and his Court published in the Minnesota Law Review, quotes a contemporary article expressing the same view this way: “the specific rights of particular parties are no longer the essence of the controversies before the Supreme Court. . . . [O]ne might well say that the Supreme Court is abandoning its character as a court of last resort, and is assuming the function of a ministry of justice. ”
Lest this seem to treat rather high-handedly the rights of individual litigants, it should be remembered that at the end of the nineteenth century Congress created the federal courts of appeals, to which disappointed litigants had access as a matter of right. Taft ’s point was that one trial and one appeal were “all the hearings a litigant should have.” The business of the Supreme Court was no longer to assure all litigants of a hearing. “The business of the Supreme Court,” he stated, “should be to consider and decide for the benefit of the public and for the benefit of uniformity of decision. ”
But what has happened in the four score years since Congress enacted the Judges’ Bill cannot remotely be described as achieving “the benefit of uniformity of decision.” On the contrary, the increasing division on the Court has coincided with the establishment and legitimization, over and above the Court ’s constitutionally granted “judicial power” to decide cases, of another kind of power — the power to define its own legal agenda, free of any obligation to hear any given case. Moreover, it is free to exercise this power without being subject to any of the usual limitations on how courts act. Thus, when the Court grants or denies a petition for certiorari, it does so without receiving full briefs, without hearing oral argument, and without issuing a written explanation of its action.
Nor does the Court consider certiorari petitions according to any meaningful standard. There is a rule listing the criteria that guide that consideration, but they are so vague and open-ended as to amount to no real rule at all. H.W. Perry ’s Deciding to Decide (Harvard University, 1992) quotes an (unnamed) justice as follows: “You know, they say that the British acquired the empire in a fit of absentmindedness, and speaking for myself, I sometimes think that is the way we create our agenda. ” Perry’s book and the writings of other social scientists who discuss how the Court has exercised the certiorari power Taft won for it read a little like the work of ancient augurers, attempting to divine from judicial notebooks and off-the-record interviews what drives the Court ’s certiorari decisions. So far as the entrails reveal what goes on behind the velvet curtain, it appears that (a) the justices by and large make their certiorari decisions independently, and not as a Court, and (b) the justices act on the basis of their own subjective sense of what issues are “important” and how the Court should use its judicial power. The question of whether the Court can reach an institutional view on the issue presented by a petition does not seem to arise at all.
Which brings us back to Chief Justice Roberts’s campaign for consensus. He has presented his effort to reestablish Supreme Court consensus as an attempt to persuade individual justices to subordinate their individuality to the best interests of the institution. The underlying assumption seems to be that the question of whether the Court decides cases institutionally or as the sum of nine distinct voices is a matter for the members of the Court themselves to decide.
But this assumption is deeply problematic. It is pointless to leave the reinstitution of consensus to the very men and women who have jettisoned it, and who benefit from the regime of self-expression. At a recent conference at Pepperdine University School of Law (October 19, 2007), Jeffrey Rosen reported that Justice Scalia “snarled sweetly ‘Good luck,’” when asked about the chief justice’s campaign for unanimity; and said that others reacted as negatively, if less sarcastically. (A tape of the conference may be viewed at http://howappealing.law.com/ 112807.html#030139 [accessed January 21, 2008].)
Indeed, the results of the most recent term make clear beyond doubt that the achievement of unanimity is out of the Court ’s reach even with a chief justice as explicitly and publicly committed to it as is Justice Roberts. The ink was hardly dry on a June 12, 2007 New York Sun editorial congratulating the Court on deciding a number of cases unanimously and expressing satisfaction that “the nine justices often see their duties to the law in similar ways,” when a virtual torrent of divided decisions — decisions by a 5–4 Court — came cascading down the steps of the marble palace. The Court last term decided nearly three times as many cases by a 5–4 vote than it had just the year before (24 vs. nine).
The case for consensus
No, if the chief justice’s goal of restoring the norm of Supreme Court unanimity is to be achieved, change will have to be imposed from the outside, which means by Congress. As is evident from the history sketched briefly above, at the time Congress gave the Supreme Court its certiorari discretion, it was taken for granted that the Court was governed by an internal norm of consensus. Of the more than 1,500 full opinions rendered by the Court under Taft’s leadership, 84 percent were unanimous. He could hardly have anticipated that 70 years after the Court was empowered to confine itself to clarifying the law the corresponding figure would be, as it was for 1993–95, a mere 27 percent. As detailed in Robert Post’s able study of the Taft Court, Taft himself was a great foe of dissenting opinions, being of the view that “it is more important to stand by the Court and give its judgment weight rather than merely to record my individual dissent. ” Post quotes him stating that “most dissents elaborated are a form of egoism”; “[t]hey don’t do any good, and only weaken the prestige of the Court,” adding that Taft went so far as to lobby President Harding against appointing a prominent state court judge to the Supreme Court on the basis that the candidate “evidently thinks it is more important that he should ventilate his individual views than that the Court should be consistent. ”
And, having particularly in mind the conception of the Court that Taft sought to realize by procuring enactment of the Judges ’ Bill, it is instructive to consider his observation that “It is much more important what the Court thinks than what any one [justice] thinks. ” Taft’s conception of the Court’s “main purpose [as being] to lay down important principles of law . . . and to make the law clearer ” can hardly be squared with the now endemic practice of the justices in failing to arrive at a consensus as to “what the Court thinks” while devoting extensive resources to telling readers of its decisions “what any one [justice] thinks.”
In short, Chief Justice Roberts’s campaign for consensus should prompt reflection not on how the magic of John Marshall and his day can be recaptured, but on whether the modern Court has wisely and properly used the discretion it was granted under successive congressional enactments, starting in 1925, to set its own agenda. And, if the conclusion is reached that it has not acted wisely — that it has not used the power Congress granted it for the purposes Chief Justice Taft envisioned of “mak[ing] the law clearer” and assuring “uniformity of decision” — a more effective remedy than the chief justice’s appeals to his colleagues may well exist: namely, amending the certiorari statute to require the Court to grant review only of cases it concludes it can decide unanimously or nearly so. Congress would be exercising its explicit constitutional authority to regulate the Court ’s jurisdiction so that it would be directed to do just what Chief Justice Taft contemplated when the Judges Act was passed. It would be using its power to make exceptions to that jurisdiction for cases that are, for one reason or another, not susceptible of being decided on a clear and uniform basis.
Such an amendment of the certiorari statute would likely also lead to an extensive reform of the Court ’s rules detailing the process by which it decides whether to “grant cert.” But more deliberation and transparency in this important phase of the Court’s work — its decision to place a given issue on the nation’s legal/political agenda — would seem to be an unalloyed good thing.
It may be objected that the Court cannot be sure at the cert-granting stage of a case whether it will be able to decide the case unanimously. But that is no good reason for not considering the issue at all. Nor does the grant of certiorari require that the Court go ahead and decide the case. There already exists a practice at the Court of dismissing petitions after briefing and even after argument if it is determined that for some reason the case should not have been accepted for review. This procedure is known, in a rare instance of judicial self-criticism, as dismissing a petition as “improvidently granted” (acronymically, “ digging a case”). While it is now resorted to infrequently, it is readily available should the Court decide not to act at all.
This raises the question whether no decision is better than a divided decision. If the Court ’s power were limited to hearing cases on whose decisions its members could agree, it is conceivable that many cases it now hears would go unheard — but not inevitable. Once a new congressional mandate had taken hold, it is reasonable to expect that the Court ’s members would accept as their core responsibility the decision of cases on terms to which all of them could agree. More extensive discussion among the justices than now occurs would become common, as would a more flexible — and probably narrower — approach to articulating constitutional norms. The Court would tend to become a more deliberative body than it now is, reflecting the variety of views people hold on controversial issues, while adding what has increasingly been lacking — the articulation of a resolution that all “sides” can tolerate. Sitting justices who could not accept this regime could, of course, resign — the modern practice of justices holding onto their seats decade after decade has itself recently come in for sharp criticism, including calls for the imposition of judicial term limits.
It also is reasonable to expect that judicial centrism would characterize future designees for seats on the Court. Men and women committed to — and temperamentally capable of — achieving consensus on difficult issues would be sought out and nominated. We might well witness an end to the spectacle of presidential campaigns turning significantly on which “side” would be able to lock in control of the Court for a generation. Gone would be the peculiar senatorial hearings which seek to expose, without discussing them, how nominees would deal with future judicial issues. It is hard to believe they would be mourned.
What about a world in which the Court’s members simply denied review rather than accepting the mandate that they decide cases unanimously? What would the effects of that be? The simplest answer is that there would be more variety in the way the same questions were decided in different parts of the country: To the extent that state Supreme Court decisions went unreviewed by the justices, they would be final within the state ’s borders; and to the extent that the decisions of federal Courts of Appeals were denied cert — assuming Congress were to retain that arcane and obscure terminology — their decisions would be final within the boundaries of their judicial circuits.
This hardly seems cause for alarm. Even now, it is common for the Court to deny review in cases where the petitioner claims there is a “circuit conflict” among the federal Courts of Appeals or even that a state court has failed to follow federal law. Indeed, Justice John Paul Stevens and other present members of the Court have actually argued that such intercourt conflict is desirable, permitting what they call “percolation” of difficult issues within the lower levels of the country’s judiciary. In addition, careful research by Arthur Hellman of the University of Pittsburgh Law School strongly suggests that the problem of intercircuit conflict is much less extensive or long-lasting than some have claimed. And, of course, to the extent that the Supreme Court ’s members perceive that such conflict is intolerable, the new jurisdictional statute would not forbid them from intervening — it would only require them to act on a basis that commands unanimous concurrence. Even those, like Alan Barth, who have praised dissents, concede that dissenting opinions do not “always, or even very often, embody great wisdom.” Against the first Justice Harlan’s dissent in Plessy — which, as noted, proposed a “color-blindness” standard that the modern Court has refused to endorse — must be set the vastly greater number of instances in which, as Barth put it in Prophets With Honor, “a dissent expresses no more than an aberrant view arising out an individual justice ’s prejudices.”
In the larger perspective, a statute requiring Supreme Court unanimity could well have an inhibiting effect on certain kinds of constitutional litigation, as proponents of aggressive judicial action on subjects of political controversy internalized the notion that they could not achieve a national result that was not broadly acceptable to an ideologically diverse Supreme Court. Justice Brennan ’s “five-finger exercise” would become a relic. A congressional mandate of unanimity might go a long way toward depoliticizing the Supreme Court and the American judicial process more generally.
The fact that the Judges’ Bill of 1925 was enacted with barely a ripple of dissent, as were the later statutes excusing the Court from any jurisdictional obligations, probably reflects a perception that issues of judicial jurisdiction are technical and of no general public interest. As this article has tried to suggest, nothing could be further from the truth. It would be unfortunate indeed if the circumstance that the issues raised by Chief Justice Roberts ’s campaign for Supreme Court consensus involve matters of legal procedure failed to win them the public attention they deserve. The great nineteenth-century legal historian Sir Henry Maine famously observed that the substantive law that governs our everyday lives has the look of having been “gradually secreted in the interstices of procedure.” A similar thought may well apply to the constitutional law that the Supreme Court has been handing down in its modern era.
