John Roberts: Unanimity and Minimalism

About a week ago I pointed to an article on Chief Justice John Roberts which in part said that he's been good at getting unanimous opinions from the court. So far this term has seen 44 decisions, 29 of which have been unanimous. This time last term there were only 17 unanimous decisions. He's apparently done this by encouraging narrow rulings and having longer, freer conference debate. Seems like a good thing, though today two articles came out on this topic.

The first by Edward Lazarus of FindLaw says this is probably just an anomally because of two things: a grace period of two new judges and the fact that they haven't yet tackled the hard divisive cases. He points out that while unanimity has been important in such cases as Brown v. Board of Education and US v. Nixon, dissents have also been important such as Harlan's dissent in Plessy v. Ferguson which helped make Brown unanimous. Lazarus says the real issue isn't the statistical count of votes but how clear the courts ruling is and then points out that the Rehnquist court had a lot of 4-1-4 and 4-3-2 decisions as well as 5-4 decisions. To avoid making that look like more counting he says the first give no majority and therefore little clarification the second makes the court look ideological (e.g., Bush v. Gore). So after saying unanimiity isn't so important, he says Roberts is pursuing a good goal of acheiving clarity, by having unanimous decisions.

The second article was an Op-Ed in the LA Times by University of Chicago Law School professor Cass Sunstein. In a commencement speech Roberts recently gave he stated his preference for broad consensus or unanimiity which probably requires narrow or minimal rulings so that justices could agree. If you have a broad sweeping decision, it's more likely that ideologically different justices will disagree than If you rule only on the specifics of a single case. This is a classic Supreme Court debate, just like being strict or loose contructionist. The interesting thing is that Sandra Day O'Conner was also a minimalist but Scalia is not. It also means Roberts answered the questions in his confirmation hearing accurately. He kept saying it would depend on the specifics of the case, and if you're a minimalist, it would.