As the Supreme Court ends another Term the attention continues to be on the Justices themselves and their voting patterns. This past Term featured a higher than average number of unanimous opinions. But as Adam Liptak from the Times has noted, these opinions seemed to mask disagreements among the Justices. Why then the unanimity? One hypothesis is that the Justices are trying to shore up the institutional integrity of the Court having become more sensitive to or cognizant of the charge that the Court with its numerous sharply divided opinions along idealogical lines is a nakedly political institution. But does this sort of unanimity (some might call it unanimity for the sake of unanimity), if that is what it appears to be, really enhance the legitimacy of the Court in the long term?
One can argue that it does not. In its most benign form, the Court is simply “kicking the can down the road” in its refusal or inability to grapple with sensitive legal issues, even if doing so would lay bare the ideological fault lines within the institution. Another more cynical interpretation is that the “conservatives” on the Court, having made institutional integrity the central focus of the Court’s agenda, are challenging their more liberal colleagues to be the ones to blink first. “Dissent if you dare” may now be a common refrain by Chief Justice Roberts, the supposed architect of the Court’s recent approach toward greater unanimity. And the conservatives can afford to wait since they, more so than their liberal colleagues, are the ones who have prevailed in cases which have presented the most contentious issues of the day. Why fix it if it ain’t broke? or so the saying goes.
The downside of all this is that Court deprives the country of the guidance it needs to govern its affairs. Fostering unanimity means declining more cases or accepting more “easy” cases — ones that perhaps don’t carry the kind of political baggage that cases about gay marriage or contraception do — or delaying to another day a ruling on a broader but more contentious issue in a case that the Court has accepted in favor of a more narrow but less contentious point. There are sound reasons for these approaches, the details for which are beyond the scope of this post. But institutional legitimacy is not one of them.
It is foolish to think that fractured decisions deprive the Court of credibility. The cases that reach and are accepted by the Court are often ones that have already split the lower courts. Add to this the fact that judges by nature have their own predispositions and prejudices, it should come of no surprise that cases often end up being decided by a bare majority. And this is as it should be since fractured opinions also foster healthy debates among the justices themselves and in the public at large on the correctness of one view over another.
The Court’s legitimacy comes not from the actions of the Court itself but from the views and beliefs of the people whose rights and duties are the subject of the Court’s decisions. So long as the Court stays true to its duty of interpreting and when necessary making law that best reflects its view of what the Constitution requires, then its legitimacy as a governmental entity is sound. This is so even if one or more members of the public disagree with how the Court interprets the Constitution.
What is more important from the standpoint of the Court’s legitimacy is the public’s understanding and acceptance of the decisions that are actually issued. This necessarily takes time and it requires the involvement (in the form of outreach, education and so forth) of individuals and groups who often have no relation to the Court. But none of this is possible if the Court makes an effort to decide fewer cases or skirts an issue in a case just because it is one whose resolution would divide the Justices.
Invisible Man 