The Supreme Court's Skin-Deep Unanimity

Chief Justice John Roberts and Justice Anthony Kennedy are the Court's swing faction. (Larry Downing/Reuters)

In 2007, Chief Justice John Roberts told The Atlantic’s Jeffrey Rosen that he hoped to foster "a culture and an ethos that says ‘It’s good when we’re all together.'" Judging by the current term, he has come a long way toward his goal. Of the Court’s 70 cases this term, a whopping 47 have been unanimous. Even if (as seems likely) the final two cases are split, that’s still two-thirds; none of Roberts's previous terms has scored more than 50 percent. In addition, at most 10 cases this term will have been decided by a 5-4 vote, the fewest since 2007.

But the unanimity above refers to results. Equally important in a Supreme Court case is the reasoning on an opinion. A Court's explanation of its decision will create a new precedent and narrow, expand, or overrule old ones. And in reasoning, the Roberts Court is sharply divided.

On one side is the four-justice moderate-liberal bloc: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. On the other is a hard-right gang of three—Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. Roberts and Justice Anthony Kennedy are both very conservative, but unlike the other three, they don't always insist on total triumph, and sometimes make common cause with the moderate liberals.

That’s what happened Thursday in two “unanimous” cases. Nine justices agreed on the result, but they split 5-4 on the reasoning. In both cases, the moderate side wrote the opinion of the Court because Roberts or Kennedy joined it. In both cases, four conservative justices wanted to radically change the law; in both cases, a five-justice majority opted for incremental change.

In McCullen v. Coakley, the Court decided 9-0 that a Massachusetts statute imposing a 35-foot buffer zone around abortion clinics violated the First Amendment. Roberts joined the liberals and wrote the majority opinion. Clinic-entrance statutes, he said, are neutral regulations of conduct, not speech. The state has important interests in preventing congestion and crime and (quoting earlier cases) “protecting a woman’s freedom to seek pregnancy-related services”—in other words, choice. But the means used in Massachusetts—silencing everyone but patients and clinic employees on a large chunk of public sidewalk—went too far.

Roberts's opinion did not overrule earlier cases approving more narrowly drawn protections for clinics. The conservatives, however, were just one vote short of sweeping those precedents away. In a concurring opinion by Scalia, they argued that a buffer zone is aimed solely at “the suppression of speech opposing abortion.” That would be a major shift in the law; it would make any clinic-entrance regulation a “content-based” restriction on protected speech. In First Amendment lingo, that's a fatal diagnosis.

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Pro-choice groups are disappointed to lose McCullen, but anyone who read the oral-argument transcript knew the statute would not survive. The question was how Massachusetts would lose. There's a big difference between a defeat and a Waterloo, and Roberts's switch made that difference.

In the second case, it was Kennedy who crossed the line to preserve a narrow 5-4 result. The issue in National Labor Relations Board v. Noel Canning was when, if ever, a president may use his power (under Article II, § 2 cl. 3) to make temporary appointments to fill “all vacancies that may happen during the Recess of the Senate.”

By 2011, years of Republican filibusters had left the National Labor Relations Board devoid of members; to forestall recess appointments, the Republican House refused to allow the Democratic Senate to adjourn for the holidays (under Article I § 5, cl. 1, the two houses have to agree to adjourn). To comply with the Constitution, the Senate held “pro forma” sessions: One hapless member from the D.C. suburbs would drive in, gavel the empty chamber to “order,” then adjourn and head home for eggnog. Obama and his lawyers decided those were not “real” Senate sessions, and used the recess power to name a full complement of members to the board. The rejuvenated board began issuing orders. One of its targets, a Washington cannery, argued that the order was void because the appointments were illegal.

Again, the result was 9-0; Obama’s “pro forma” appointments were void. But the difference in reasoning, again, is huge and consequential. The majority opinion by Breyer (for himself, Kennedy, Ginsburg, Sotomayor, and Kagan) held, quite sensibly, that if the Senate says it’s in session, the president should back off. But, they added, the recess power is an important one; if the Senate does leave town, the president can make a temporary appointment, even if the “recess” is just an adjournment for 10 days, and even if the office was vacant before the recess began. “The Clause gives the President authority to make appointments during ‘the recess of the Senate’ so that the President can ensure the continued functioning of the Federal Government when the Senate is away,” Breyer wrote; it should be read in accordance with that aim.

No indeed, said Scalia. The clause, like the rest of the Constitution, was not written to make government work, but to cripple it. Presidential inability to fill offices, like other forms of interbranch standoff, “is not a bug to be fixed by this Court, but a calculated feature of the constitutional framework.” This is far-right ideology: Government that works well is a danger to liberty.

Scalia's proposed rule is that the president can only make recess appointments in the brief (a few minutes, usually) annual gap between formal year-long “sessions”; not only that, he can only fill vacancies that also arise during those few minutes or hours. In other words, the clause would be all but meaningless. Now that the Senate can return at a moment's notice, he says, the Recess Clause “is, or rather, should be, an anachronism” like, say, the appendix. It's inflamed now, let's cut it out.

Scalia would like the courts to step into tussles between White House and Capitol that they have previously wisely stayed out of. With one more vote, that cry of “Havoc!” would be law instead of dictum.

On Monday the Court will announce the public-employee-union case, Harris v. Quinn, and the contraceptive-mandate case, Hobby Lobby v. Sebelius. Unanimity in those results is, shall we say, unlikely. But even if the term ends with snarls, we should not underestimate Roberts’ accomplishment. Unanimous results are more durable and useful than 5-4 splits. The chief may in fact be forging the “team dynamic” he spoke of wistfully in 2007. But there are likely to be some brawls in the locker room; even when they agree, these justices are miles apart.

Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.


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