• In an age of divisiveness and partisan politics, the U.S. Supreme Court has proved remarkably resilient to political pandering and posturing.
  • Since 2000, 36 percent of the Supreme Court’s decisions have been unanimous, while only 19 percent have split at 5-4.
  • Even split decisions by the court do not always fall cleanly between Democrat-nominated justices and Republican-nominated ones.

The virtues of consensus

In an age of divisiveness and partisan politics, one institution is proving remarkably resilient to political pandering and posturing: the Supreme Court of the United States.

That, at least, is the argument made by R Street Fellow Shoshana Weissmann in a recent op-ed contending that politics is the shallowest way to interpret the U.S. Supreme Court.

It’s easy — and convenient — for advocates and members of the media to pin justices as more conservative or liberal on a one-dimensional left to right scale, Weissmann wrote. This kind of simplified analysis, however, fails to explain how the Supreme Court comes to a unanimous 9-0 decision more often than any other ratio. Since 2000, 36 percent of the court’s decisions have been unanimous, while only 19 percent have split at 5-4.

In an op-ed for The Washington Post last year, Sarah Tuberville, Director of The Constitution Project at the Project on Government Oversight, and Anthony Marcum, a research associate for the Governance Project at the R Street Institute, wrote that those who wish justices would be more willing to “pick a side” have misunderstood the role of the Supreme Court. The court’s frequency of unanimous decisions is a feature, they argued, not a bug. 

“American law relies heavily on judicial precedent. A unified voice from the Supreme Court provides more clarity for both lower courts and the public on what the law is, instead of what it is believed to be. Further, judicial consensus builds institutional trust. A strong judicial majority demonstrates that the issue at hand was honestly considered, strongly deliberated and fairly decided,” Tuberville and Marcum wrote. “The high court’s role is to interpret the law — nothing else. And lawyers, courts and the public are better served when the court speaks with a clear and unified voice.”

It appears the Supreme Court justices themselves understand this as well as anyone. Chief Justice John G. Roberts Jr. said during his confirmation hearing in 2005 that he would have “a particular obligation to try to achieve consensus” with his colleagues on the court. A year later Roberts stated that “division should not be artificially suppressed, but the rule of law benefits from a broader agreement.” He continued to affirm this in 2016 when he remarked about the court’s “commitment” to “talking about things, talking them out.”

“(S)ometimes,” Roberts concluded, this debate and deliberation “brings you a bit closer together.”

Similarly, Justices Sonia Sotomayor (an Obama appointee) and Neil Gorsuch (a Trump appointee) have joined together to promote civics education.

“It’s been well documented that the partisan discord in our country followed very closely on the heels of schools stopping to teach civic education,” Sotomayor said of their efforts. “One must remember why.”

Surprising alliances…and disagreements

While consensus is always the court’s goal, it’s also noteworthy that even split decisions do not always fall cleanly between Democrat-nominated justices and Republican-nominated ones. Weissmann highlighted several examples.

For instance, one difference between Trump-appointed Justices Gorsuch and Kavanaugh is that Gorsuch tends to err more toward a presumption of liberty, while Kavanaugh is more likely to err on the side of constitutionality. This difference showed up in United States v. Davis. In Gorsuch’s view, the law at issue in the case was too vague to be constitutional, but Kavanaugh argued that a “decision to strike down a 33-year-old, often-prosecuted federal criminal law because it is all of a sudden unconstitutionally vague is an extraordinary event,” adding that “[t]he Court usually reads statutes with a presumption of rationality and a presumption of constitutionality.”

In another case, Timbs v. Indiana, Gorsuch found himself on the same side of the ruling as Sotomayor. Both came out swinging against civil asset forfeiture, a practice criticized as “policing for profit,” on the basis of the Eight Amendment. Gorsuch led an aggressive charge during oral arguments, while liberal icon Ruth Bader Ginsburg wrote the majority opinion. 

Writing in Reason, Jonathan Adler goes so far as to describe these episodes as part of ongoing trends like “Kagan-Gorsuch Axis,” or “Kavanaugh v. Gorsuch.”

“Justices Gorsuch and Kavanaugh may both be conservatives, and they were both appointed by President Trump, but they are not clones of each other,” Adler wrote in an overview of U.S. Supreme Court decisions earlier this year, listing several examples. “Among other things, Kavanaugh does not seem to have the same formalist streak that leads Gorsuch to cross over in some criminal law cases, as Justice Scalia would sometimes do.”

Given that Gorsuch and Kavanaugh were both nominated by a president with a track record of valuing loyalty above all else, these divergences between the two are a remarkable example of judicial independence. 

This is not to say, of course, that partisanship never seeps into judging or affects the judicial process, but if there is a judicial “party line” to toe, the two newest justices are certainly not interested in doing so all the time. 

“And for that,” Weissman concluded, “we should all be grateful.”


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Image Credit: Photo by John Brighenti on Flickr