June 27, 2014

I love the Supreme Court's emerging unanimity.

And so does former acting solicitor general Neal K. Katyal:
The justices’ ability to cross partisan divides and find common ground in their bottom-line judgment in roughly two-thirds of their cases... should remind us that even in this hyperpartisan age, there is a difference between law and politics....

This path, of trying to forge places of agreement even among people who are inclined to disagree, is the essence of what the American experiment is all about. In an era when the leadership of the House of Representatives is suing the president, when people across the aisle cannot even be in the same room with one another, the modesty and cultivated collegiality of the nine members of the Supreme Court this year remind us all that there is another way.
Do I detect a political agenda in the guise of anti-partisanship?

ADDED: The link goes to the NYT, where the editors flag reader comments they deem worthy of attention. The top editors' pick is:
"Unanimity" but at what price?
Court rulings have been less than nice,
The Koch boys must be
As proud as can be,
This "wedding" of minds? Don't throw rice!

19 comments:

Rob McLean said...

Apparently, even "nonpartisans" are wrong if they reach "incorrect" conclusions.

Left Bank of the Charles said...

Chief Justice Roberts and Justice Kennedy can promote unanimity just by being unpredictable.

The way you get 5-4 decisions is that you have 4 Justices who grant cert because they think they can get a 5th.

Let's say your 4 person team grants cert but doesn't get the 5th vote, that sets a precedent against the legal principle you hoped to establish.

In McCullen v. Coakley, Chief Justice Roberts had 4 votes to strike down the law from the conservatives. That gave him the power to go to the liberals and say, "you can join me or I can join them."

Quite possibly Chief Justice Roberts watered down the resulting precedent in McCullen v. Coakley, as his opinion for the court is not the one Scalia would have had become constitutional law.

But look at Roberts getting the 4 liberals to sign his opinion striking down the buffer zone around Massachusetts abortion clinics. That's really quite spectacular.

PatHMV said...

The reference to the House suit against the President is a tip off to the barely-hidden partisanship of the article. No mention of the President shoving through recess appointments in violation of the law, his routine declarations to use executive rule making to act where Congress refuses to do so, his terrorist horse-trading without the required Congressional notification, or the Senate Democrat Majority's implementation of the "Nuclear Option" to end the filibuster for certain nominees.

It's sad to see this type of hidden partisanship in the piece, because I think overall it's a good analysis and does credit to CJ Roberts' leadership. But it exudes the vibe, present in so many of then-candidate Obama's speeches in 2008, that the real problem is all that nasty partisanship (by the people in the other party).

Ron said...

"Bah, bah, bah!", NYT readers bleat,
"Our Enlightened Opinion Went Down to Defeat?"
"Don't those old coots see WE are the Elite?"
"Ah well, Saint Barack will usurp them, and won't THAT be sweet?"

Hunter said...

When is anti-partisanship ever not a guise for a political agenda?

It's almost always a form of concern-trolling one's political adversary.

Everyone thinks that the "bi-partisan" solution is the other side joining with them to do what is obviously right.

chuck said...

I usually find the comments at the NY Times and Washington Post depressing. I expect a lot of ignorance and bigotry in venues like HuffPo and Kos, but to find it in the papers supposedly read by the elite is disturbing. One curious exception seems to be the comments at Volokh Conspiracy, which tend to contain a mix of opinion, some of it even informed and thoughtful. That, even though the blog is published by the Post.

Saint Croix said...

They are unanimous that a corporation is a person and they are unanimous that a baby in the womb is not a person.

Also, they were unanimous in Pace v. Alabama and they were unanimous in Loving v. Virginia.

It's nice when 9 lawyers agree. On the other hand, they might be hateful bigots. Or dishonest oligarchs. Or desperately trying to avoid the stink of a baby-killer accusation.

Anonymous said...

"Hunter said...
When is anti-partisanship ever not a guise for a political agenda?
6/27/14, 4:09 PM "

http://avalon.law.yale.edu/18th_century/washing.asp

...
I have already intimated to you the danger of parties in the State, with particular reference to the founding of them on geographical discriminations. Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the spirit of party generally.

This spirit, unfortunately, is inseparable from our nature, having its root in the strongest passions of the human mind. It exists under different shapes in all governments, more or less stifled, controlled, or repressed; but, in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy.

The alternate domination of one faction over another, sharpened by the spirit of revenge, natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities, is itself a frightful despotism. But this leads at length to a more formal and permanent despotism. The disorders and miseries which result gradually incline the minds of men to seek security and repose in the absolute power of an individual; and sooner or later the chief of some prevailing faction, more able or more fortunate than his competitors, turns this disposition to the purposes of his own elevation, on the ruins of public liberty.

Without looking forward to an extremity of this kind (which nevertheless ought not to be entirely out of sight), the common and continual mischiefs of the spirit of party are sufficient to make it the interest and duty of a wise people to discourage and restrain it.

It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms, kindles the animosity of one part against another, foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which finds a facilitated access to the government itself through the channels of party passions. Thus the policy and the will of one country are subjected to the policy and will of another.

There is an opinion that parties in free countries are useful checks upon the administration of the government and serve to keep alive the spirit of liberty. This within certain limits is probably true; and in governments of a monarchical cast, patriotism may look with indulgence, if not with favor, upon the spirit of party. But in those of the popular character, in governments purely elective, it is a spirit not to be encouraged. From their natural tendency, it is certain there will always be enough of that spirit for every salutary purpose. And there being constant danger of excess, the effort ought to be by force of public opinion, to mitigate and assuage it. A fire not to be quenched, it demands a uniform vigilance to prevent its bursting into a flame, lest, instead of warming, it should consume.

It is important, likewise, that the habits of thinking in a free country should inspire caution in those entrusted with its administration, to confine themselves within their respective constitutional spheres, avoiding in the exercise of the powers of one department to encroach upon another. The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism.

Ambrose said...

I am shocked that all nine have become racists so quickly.

n.n said...

Saint Croix:

A democratic society or group should not be judged on its ability to realize a consensus. A consensus does not preclude corruption and may trump moral and natural principles.

The problem occurs when there are overlapping or convergent interests. For example, business or social interests, or some other dominant sector in a society, will mandate a consensus through order or decree, which selectively invalidates principles to suit their interests.

This form of corruption is ever present. It did not start with the normalization of abortion, but that was stark evidence of extraordinary corruption. In order to mitigate a dysfunctional convergence, a healthy society prevents formation of monopolies and other structures which reduce or marginalize competing interests.

Having failed to legally recognize the evolution of human life from conception to death, their motives are forever suspect. While our society may choose to arbitrarily assign value to an evolving human life, its inconsistent treatment engenders a general distrust. We can at least acknowledge the nature of what we are doing. It is unbecoming for an advanced civilization to selectively deny reality.

Saint Croix said...

I am shocked that all nine have become racists so quickly.

I'm not calling them racists now. They were racists in the 19th century. They're baby-killers now. Try to keep up.

Brent said...

Professor,

Seem to recall several mainstream articles about Chief Justice Roberts wanting to work consensus as much as possible. Many commented that he wanted that for a legacy.

Your thoughts.

Norman Conquest said...

Gee, think Obama might now be regretting insulting the justices at his State of the Union? To their faces?

I think a Yankees fan may have taught the other liberals the importance of brushback.

Mid-Life Lawyer said...

It almost gives you faith. Almost.

Smilin' Jack said...

people across the aisle cannot even be in the same room with one another

Ummm....

Smilin' Jack said...

Unanimity" but at what price?
Court rulings have been less than nice,
The Koch boys must be
As proud as can be,
This "wedding" of minds? Don't throw rice!


Is that Dylan?

DKWalser said...

My fear is that Roberts may have horse-traded with the liberal justices to get unanimity on the two recent cases by giving them what they want in the Hobby Lobby case.

Saint Croix said...

It's unfair for me to suggest that Scalia, Thomas, Roberts or Alito are baby-killers. They're not baby-killers. They just don't know what a person is. They're like the Missouri Compromisers of the Judiciary.

Christopher Regan said...

The thing to remember is that the nine justices have much more in common with each other than anything resembling an ordinary American. Every one of them is a lawyer who came up in the service of corporations or government or both. Rarely have any of them represented individuals in civil cases as a way to make a living, or defended accused persons. They all work one side on their way up and all think basically the same way. The 5-4s are marginal disputes in a vast territory of their complete unanimity.