“The court has no troops at its command. It doesn’t have the power of the purse. And yet, time and again, when the court says something, people accept it.”
- Ruth Bader Ginsburg on NPR’s All Things Considered, July 24, 2019
Isn’t it odd how the fate of a major legislative act can hang on a single vote in a 5-to-4 Supreme Court decision? People accept it because we envision justices above the political fray, guided only by wisdom, precedent, and the Constitution. Their decision stands until a future court overturns it, perhaps again by a single vote.
Such cases were extremely rare in the 1800s and early 1900s.* Courts strove for unanimity and consensus, debating behind closed doors until they could speak with a single voice. The proportion of closely split decisions rose gradually after the 1930s. Brown v. Board of Education (1954) was unanimous; Roe v. Wade (1973), 7 to 2; Citizens United v. FEC (2010), 5 to 4.
I wonder if the rise in 5-to-4 decisions heightens the frenzy around each Supreme Court nomination. Focus shifts from the whole court to individual justices, and from their wisdom and experience to their potential vote on a given issue. Gamesmanship increases. “Settled law” begins to look provisional. Over time, might this trend weaken the court’s perceived authority and our system of checks and balances? Might it be better to defer judicial action until the argument for change is so strong, the evidence so overwhelming, that at least seven of the nine justices can agree?
*A single vote decided an annual average of only 2.6% of cases in 1901-1910, compared to 23% in 1981-1990. Robert E. Riggs, “When Every Vote Counts,” Hofstra Law Review, 1993.
I'm a historian who writes novels and literary nonfiction. My home base is Madison, Wisconsin.