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“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.
3 Comments
Dennis Doren
9/28/2020 06:22:50 pm
I found this fascinating, and have been thinking about it a while before responding. Although the concept of the jurists working out differences before publishing their opinions sounds good, I have to wonder if this is now a case of closing the barn door after the horses have escaped - political forces and biases in presidents and senators will likely cause them to continue picking "their side" no matter what the judges do in closed chambers. Instead, I recommend that the presidents and senators conspire to load up the court with more of their own - literally - until there are 16, 18, or 20 justices. At that point, the different political biases in the judges will have less effect on any given case, and the even number of justices will help give them reason to work with the other justices to find agreement to avoid a tied opinion. 9/28/2020 07:36:21 pm
Dennis, thanks for your thoughts on this. There is certainly talk of packing the court if both the White House and the Senate change to a new party's control. If this becomes standard procedure and it turns into an arms race, it seems there would be even less deliberation and consultation than now. My impression is that it's still a somewhat consultative body, in close relationship even across differences (RBG & Scalia most famously) and somewhat isolated from outside pressures - and I suspect that makes for better listening and better decisions. But my personal biases/temperament influence my views on that, and I may be wrong. Leave a Reply. |
AuthorI'm a historian who writes novels and literary nonfiction. My home base is Madison, Wisconsin. Archives
February 2021
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