Justices can agree without unity

  • Article by: David G. Savage
  • Los Angeles Times
  • June 28, 2014 - 6:03 PM

– Over the past two weeks, the U.S. Supreme Court’s justices have unanimously agreed on 12 of their 16 decisions.

At first glance, that seems a startling departure from the usual pattern, in which sharply divided Supreme Court decisions in late June are as predictable as heat and humidity in Washington.

But look more carefully, and it’s apparent that not all unanimous decisions are to be treated equally.

Sometimes, unanimous decisions stem from cases that seem easy: The justices agree that a lower-court ruling was wrong, and obviously so, and its decision must be reversed.

In one such ruling, an appeals court in Atlanta ruled that a former Alabama college official had no free-speech protection after he was fired in apparent retaliation for testifying about corruption. The Supreme Court ruled unanimously to revive his free-speech claim.

In other cases, however, the justices all agree one side deserves to win but sharply disagree about the law.

Thursday saw two such rulings. All nine justices agreed that President Obama went too far by appointing several people to senior federal positions when the Senate was on a brief break. They also all agreed that Massachusetts violated free-speech rights by creating a 35-foot no-talking zone on public sidewalks outside abortion clinics.

But in both cases, the justices split 5-4 on the underlying legal issues — whether presidents can ever make “recess appointments” and whether cities may generally enforce laws to shield abortion clinics from demonstrators.

The court’s majority answered both of those questions affirmatively, and the strongly worded opinions from the minority belied any suggestion that those were truly unanimous decisions.

“Unanimity can be exaggerated,” Washington attorney Paul Smith said. “On the ‘big’ cases, they are still often 5-4.”

Sometimes, however, the justices do issue unanimous decisions that make a major change in the law. Chief Justice John Roberts wrote one of those Wednesday — an opinion that set aside decades of law that had allowed police to search any objects found on a person put under arrest.

The outbreak of harmony may end Monday, when the justices announce two final rulings. Until last week, no one would predict those rulings cases would be unanimous.

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