Academic highlight: Sunstein and Supreme Court unanimity (or lack thereof)
on Oct 21, 2014 at 11:30 am
Last Term, the Supreme Court issued a higher percentage of unanimous decisions than in any Term since 1940. The Court was unanimous 62% of the time, and there were dissenting opinions in only 39% of the cases. Was the 2013 Term an outlier, or is it a harbinger of a new consensus among the Justices? Cass Sunstein tries to answer that question in his recent article Unanimity and Disagreement on the Supreme Court.
Sunstein explains that the Court’s voting patterns can be divided into two distinct eras: Before 1941, the Court issued a large number of unanimous opinions, with few concurrences and dissents, and even fewer 5-4 opinions; after 1941, it became commonplace for the Court to issue closely divided decisions containing multiple concurring and dissenting opinions.
The numbers show a clear divide between the two eras. From 1801 through 1940, the Court was unanimous in over 91% of its cases, and Justices wrote separate concurrences in fewer than 2% of the cases. After Harlan Fiske Stone became Chief Justice in 1941, the Court’s practice changed radically. In 1941, the dissent rate jumped to 29%, increasing to 43% in 1942 and then to 52% in 1943. Since then, the dissent rate has rarely fallen below 50% (the 2013 Term is one of the handful of exceptions). During the same period, concurring opinions also increased exponentially to an average of 37% of cases.
Sunstein contends that these two distinct decision-making styles can be attributed in part to the leadership of two charismatic Chief Justices: Chief Justice John Marshall promoted consensus; Chief Justice Stone did not. Although Sunstein acknowledges that the leadership of these Chiefs, standing alone, probably cannot fully explain the change, he thinks they played an important role. These Chief Justices established norms that became part of the institutional culture of the Court, lasting long after they left the bench.
So should Chief Justice John Roberts get the credit for a newly unified Court? In a 2006 interview, the Chief Justice said that he hoped to avoid fractured opinions, but until last year he had not been successful. Like other commentators, Sunstein is not sure that the change is a permanent one, or that the Chief Justice has succeeded in changing the Court’s decision-making culture. Sunstein notes that in many of the unanimous decisions the Court was united as to the result in the case but remained deeply divided in its rationale, leading some describe 2013 as displaying a “faux unanimity.” (SCOTUSblog’s Kedar Bhatia provides a detailed breakdown of the 2013 statistics in this blog post, which sheds further light on that issue.) But if history is any guide, Roberts may be able to influence the degree of consensus, perhaps in ways that outlast even his tenure on the Court.
More interesting, however, is Sunstein’s conclusion that consensus on the Court is not necessarily a good thing. A dissenting or concurring opinion can have influence, leading a future Court to reverse itself, or inspiring Congress to override the decision. Sunstein also questions whether unanimity improves the legitimacy and public acceptance of those opinions, as has often been assumed. Perhaps it is just as well if the 2013 Term was an aberration after all.