For years, particularly since the 2000 election, talk about the Supreme Court has centered on its bitter 5-4 divisions. Yet it is worth reflecting on a remarkable achievement: The court has agreed unanimously in more than 66 percent of its cases this term, and that figure will hold even if Monday’s remaining two cases, on the Affordable Care Act’s contraceptive coverage and on public-sector unions, are not unanimous.
The last time this happened was 1940.
The justices’ ability to cross partisan divides and find common ground in their bottom-line judgments in roughly two-thirds of their cases — including the two decisions handed down Thursday, restricting the president’s ability to issue recess appointments during brief breaks in the Senate’s work and striking down a Massachusetts ban on protests near abortion clinics — should remind us that, even in this hyperpartisan age, there is a difference between law and politics.
Unanimity is important because it signals that the justices can rise above their differences and interpret the law without partisanship. The best illustration of this in the modern era is Brown vs. Board of Education, the 1954 case in which the court unanimously declared racial segregation in education to be unconstitutional. When the justices forge common ground, it signals to the nation the deep-seated roots of what the court has said and contributes to stability in the fabric of the law.
The court has not always valued consensus so highly. At the nation’s founding, the justices each wrote separate opinions, leaving lawyers — and indeed the nation — to guess what the court was actually saying as a whole. It took Chief Justice John Marshall’s leadership, at the start of the 19th century, to bring the court together and establish the practice of writing a single opinion for the court. Marshall was not above using hard and soft persuasion, going so far as to invite his colleagues to live together in a Washington boardinghouse, where they bonded and discussed cases over Madeira.
Disagreement on the court in that century was rare, with dissents occurring only about 10 percent of the time. Chief Justice William H. Taft, in the first decades of the 20th century, presided over the apogee of concurrence. He reportedly talked his colleagues out of more than 200 dissenting votes with his formidable political skills.
The modern era has been something of a disaster for unanimity. Chief Justice Earl Warren was able to achieve unanimity only 36.1 percent of the time, Chief Justice Warren E. Burger a scant 35.8 percent. One of Chief Justice William H. Rehnquist’s final public acts was to express exasperation at the fractured court. In 2005, on the final day of his final term, a frail Rehnquist described his last majority opinion by first outlining his views, then the three concurrences filed, then the three dissents filed, and then joking, “I didn’t know we had that many people on our court.”
Compare all that to what Chief Justice John Roberts achieved this year with his colleagues.
People remember Roberts’ 2005 confirmation hearing for his statement that his job would be to call balls and strikes. Something else he said is worth remembering, though: that he would try to bring about “a greater degree of coherence and consensus in the opinions of the court.” He pointed to Warren’s leadership in Brown as an example.
Unanimity, of course, would mean little if it were reserved only for minor things. This term, however, the court was unanimous in cases that posed big central questions, such as whether the government can search your cellphone without a warrant, whether software can be patented, whether the rules for class-action securities lawsuits should change and many others.
These cases were not easy ones. In the cellphone case, the government made forceful points about the ways in which those searches were permissible, and indeed necessary, for law enforcement. The software industry and its foes argued vociferously about whether software patents were destroying the economy or creating it, and so on.
What’s more, the court wasn’t unanimous because the justices sat on their hands. To the contrary, they reversed the lower court 74 percent of the time this year.
Many justices have pointed out the importance of published dissent. There is no doubt that dissents can serve a useful role by explaining where a justice thinks the majority has gone off the deep end. Unanimity sends its own powerful message, however, one that might be eclipsed in the headlines by a sensational dissent, but could ultimately have a greater impact.
Take the abortion decision on Thursday, which was unanimous in its bottom line but not in its reasoning. Roberts joined four justices appointed by Democratic presidents, the same lineup that saved the Affordable Care Act two years ago, that time for a liberal result, unlike Thursday’s.
This path, of trying to forge places of agreement even among people who are inclined to disagree, is the essence of what the American experiment is all about.
In an era when the leadership of the House of Representatives is suing the president, when people across the aisle cannot even be in the same room with one another, the modesty and cultivated collegiality of the nine members of the Supreme Court this year remind us all that there is another way.
Instead of worrying about balls and strikes, Roberts has shifted his efforts to a new focus: making all nine justices play ball for the same team. The country, and the rule of law, are better off for it.
Neal K. Katyal, a former acting solicitor general, is a partner at Hogan Lovells and a law professor at Georgetown University in Washington.