IN this week’s confirmation hearings, the Senate Judiciary Committee should explore not only Judge Sonia Sotomayor’s qualifications for the Supreme Court, but her views about the court’s increasing failure to do its job.
The modern court has issued rising numbers of 5-4 constitutional decisions — rulings that fasten virtually unchangeable rules upon the country, on matters of intense national importance, by a court whose members can’t agree among themselves about the decisions they’re issuing, or the reasons that justify them.
The court, that is, functions not as the “one supreme Court” envisioned by the Constitution, but as a collection of nine individuals who privilege their own self-expression above the constitutional role assigned to the court — namely, in Chief Justice John Marshall’s famous phrase, to “say what the law is.”
The high court’s constitutional decisions are final in a way that no other event in American political life is — forever beyond the possibility of change except by amendment or a judicial change of heart. That this “last word” power should be exercised by people who feel no institutional obligation to persuade one another that they’re right must be a matter of deep concern.
While long in the making, this situation is especially worrisome now: Chief Justice John Roberts tried at the start of his tenure to bring the court back to its historic practice of deciding constitutional issues only in unanimous or near-unanimous decisions — but got nowhere. Indeed, he has himself freely participated in 5-4 decisions on constitutional matters.
This behavior is an historical anomaly. Unanimity was the norm on the Court from Marshall’s time until well into the 20th century. Even justices now remembered as “Great Dissenters” — such as Louis Brandeis and Oliver Wendell Holmes — were critical of dissent in the Supreme Court and would doubtless be astounded to see how frequently and casually their successors now engage in the practice.
Moreover, a rule of unanimity for courts of last resort is the norm in many foreign countries, where the practice is to issue a single unsigned decision, and where — as once was true here — dissents are not only all but unknown, but considered a violation of the judicial oath of office.
Even within the US judiciary, the high court’s promiscuous resort to separate opinions stands in sharp contrast to, for example, the DC Circuit Court of Appeals — which disposes of a huge number of difficult cases over a wide range of subject matters by means of unanimous rulings at a far higher rate than do The Nine.
The baleful effects of this practice of sharply divided rulings in constitutional cases are many and varied. The justices’ indifference to speaking with one voice has meant, over the last 35 years, that a single “swing justice” has become the controlling voice of American constitutional law.
While it’s hard to think of any individual in American history who would be equal to such a daunting task, in fact the role has fallen to men and women who, although fine, well-meaning people, fall almost comically short of that stature. Anthony Kennedy, the incumbent swing justice, got onto the court based solely on his ability to get confirmed — after President Ronald Reagan’s first two choices for the seat went down in flames. To put it mildly, Kennedy was not chosen, or confirmed, in the expectation that he would personally hold the court’s power of deciding what the Constitution means.
And the practice of non-unanimous decision, particularly 5-4 rulings, has helped turn Supreme Court nominations into intensely partisan and divisive controversies — another historical anomaly. The “5-4 habit” means that each appointment can alter the course of constitutional history — making politically charged and often ugly hearings unavoidable.
The time seems ripe — if not overripe — for some careful public inquiry into whether the modern Supreme Court system of prizing self-expression above institutional integrity serves the public interest. The Sotomayor hearing is a perfect occasion to do so.
Senators should ask Judge Sotomayor whether she thinks the country would benefit if the court heeded the experience of 150 years of American legal history, and that of legal systems in friendly foreign nations — and returned to rendering decisions whose holdings and reasoning the justices can agree upon.
Wouldn’t it be a good thing if the court’s decisions reflected accommodation among men and women from different backgrounds, appointed by different presidents and adhering to different judicial philosophies?
Wouldn’t it be desirable to reduce the stakes associated with each judicial nomination, so that we’d see an end to the unseemly confirmation battles that have become a feature of our politics?
Shouldn’t the members of the court spend less time writing dissents and concurring opinions (ones that support the conclusion of a case while “dissenting” in some way from the reasoning of the majority) and more time actually deciding cases? Wouldn’t that enable the court to hear more cases, and give the country more judicial guidance?
And wasn’t Chief Justice Roberts right when, as he launched his unsuccessful campaign to return to unanimity, he expressed concern that unless the court “refocus[es] on functioning as an institution, . . . it’s going to lose its credibility and legitimacy as an institution”?
Michael W. Schwartz is of counsel with Wachtell, Lipton, Rosen & Katz. The opinions are the author’s, not his firm’s.