07/08/2014 04:29 pm ET Updated Sep 07, 2014

One or Two Cheers for Unanimous Supreme Court Decisions

A leading story line of the just-concluded Supreme Court term is celebration of the fact that the Court has rendered unanimous rulings in about 2/3 of its decisions, the highest percentage in almost 75 years. Leading Supreme Court advocates, journalists who specialize in the Court, and opinion leaders in prominent media have declared -- also unanimously -- that the Court's growing unanimity deserves three cheers. Chief Justice Roberts, they say, has made good on his initial pledge to get the Court to speak with one voice more frequently. Even more important, according to these pundits, it shows that we can come together as a nation even at a time of sharp political polarization in Congress.

In truth, unanimity on the Court is a mixed bag. On the plus side, a 9-0 decision gives clearer guidance to lower courts and lawyers, making the law more predictable. The general public may have more respect for the rule of law if it associates unanimity with correctness and consensus. A sharply-divided decision, by exposing its fragile underpinnings, might reduce its persuasive force. After all, the logic runs, if only a single justice had voted the other way, the result -- and thus the law's status -- would have been entirely different. The legitimacy of a law whose meaning or indeed its very validity depends on what a single person on a particular day happens to think is doubtful. Unanimity avoids that problem and yields clearer and less contestable legal rulings, which is no small thing.

But unanimity has other problems, which its celebrants usually ignore. First, some 9-0 decisions are unanimous only as to the narrow result in those particular cases; the underlying legal rationales for the recent abortion picketing and recess appointments rulings, for example, were all over the lot. Second, unanimity on the Court is a false measure of political consensus; it does not mean that we have come together on the issues that a 9-0 vote on the Court resolves. In fact, Americans are -- and remain -- sharply divided on the values and policies expressed in the statutes and regulations being challenged. The deep polarization on display in Congress today largely reflects these underlying popular disagreements: the causal arrow goes from opinionated voters to uncompromising politicians, not the other way around. A unanimous Court can only resolve a specific dispute; it cannot lay the underlying disagreements to rest.

Third, judges are no different in their tendency to disagree about the law. The disputes that come before the Court are very hard cases -- after all, they are almost always cases in which lower courts around the country disagreed about how the law should be interpreted and applied. Thus, divisions among the Court's members are to be expected. Indeed, if the justices do not divide on cases, we can draw either one of two conclusions -- that the cases they select for review are too easy in that the correct decision is rather clear, or that the justices achieved unanimity only through give-and-take in drafting the opinion. Last week's abortion picketing and contraceptive coverage decisions suggest that latter conclusion is much more likely: the justices negotiated their way to unanimity. If so, that unanimity comes at a high price: it is gained only by turning putatively principled, detached justices into a more cloistered version of compromise-seeking advocates -- what Justice Stephen Breyer terms "junior varsity politicians." And once the public learns that some of what goes on in justices' chambers amounts to high-minded haggling, its respect for a Court that had seemed oracular and apolitical will be diminished. Recall how the Wizard of Oz's mystique vanished once he was revealed as just a manipulative lever-puller behind a curtain.

Finally, dissenting opinions are almost always good both for the law itself and for public understanding of it. They should not be disparaged as obstreperous division. To the contrary, they usually reveal valuable information that unanimous decisions tend to conceal: the flaws in the majority's reasoning; the functional costs and normative tradeoffs that the majority may have suppressed or overlooked; the complexity of the relevant legal and factual materials that the majority may have over-simplified; and much else. Perhaps most important, dissents may also prefigure future changes in the law, showing future policymakers and judges how to make it better. In these ways, some of our greatest judges such as Holmes, Brandeis, Stone, and Brennan wisely rejected unanimity in order to point the way toward a more just future.

Peter H. Schuck is an emeritus professor at Yale Law School. His new book is Why Government Fails So Often And How It Can Do Better (Princeton).