Our Fractured Supreme Court

TL;DR: In the early days of the Supreme Court under the leadership of John Marshall, there were fewer than ten dissenting opinions for every 100 issued by the Court; after 1941, that figure increased sevenfold and has remained at that level or higher ever since.

Abstract: SHORTLY AFTER TAKING office, Chief Justice John Roberts embarked on a campaign within the Court and, unusually, in the press, to revive the tradition of unanimity in Supreme Court decisions. He has spoken of his concern that the Supreme Court is losing its legitimacy in the public's mind because of the frequency of dissenting opinions, arguing that this diminishes the respect and acceptance its decisions receive, and that the Court's public standing is enhanced if its decisions are unanimous, or nearly so. For example, in a lengthy interview with legal journalist Jeffrey Rosen published last year in the Atlantic, he suggested that "the Court is ... ripe for a ... refocus on functioning as an institution, because if it doesn't it's going to lose its credibility and legitimacy as an institution." The chief justice harked back to the early days of the Supreme Court under the leadership of John Marshall who, among other things, led the Court to adopt as consistently as possible the practice of speaking with a single voice. Not infrequently, the voice was that of Marshall himself, but the point is that the Court decided cases unanimously, without dissents and concurrences. The chief justice's campaign is conservative in the strict sense: There can be no dispute that fractionated decisions used to be a rarity and have become commonplace on the Court. Until the early 1940s, there were fewer than ten dissenting opinions for every 100 issued by the Court; after 1941, that figure increased sevenfold, and has remained at that level or higher ever since. The justices' work product increasingly consists more of composing dissents and concurrences than of writing opinions for the Court: until 1941, 80 to 90 percent of all opinions were opinions for the Court; now the number is less than 50 percent. More than a third of its 68 rulings in 2006-07 were decided by a 5-4 margin--and others by less lopsided, but still nonunanimous, votes--with separate opinions proliferating like mushrooms after a summer rain. At the extreme, this proliferation of opinions makes a joke of the Court's core function, "to say what the law is," in Chief Justice Marshall's phrase. Better than any statistics is the following verbatim excerpt from the Supreme Court's reports, published some years ago by the New Yorker, without comment, under the heading "The Jurisprudential Life": Blackmun, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, in which Brennan, Marshall, Stevens, and O'Connor, JJ., joined, an opinion with respect to Parts I and II, in which O'Connor and Stevens, JJ., joined, an opinion with respect to Part III-B, in which Stevens, J., joined, and an opinion with respect to Part VI. O'Connor, J., filed an opinion concurring in part and concurring in the judgment, in Part II of which Brennan and Stevens, JJ., joined. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Marshall and Stevens, JJ., joined. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Brennan and Marshall, JJ., joined. Kennedy, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Rehnquist, C. J., and White and Scalia, JJ., joined. This was how the modern Court "decided" a case involving important issues relating to when a Christmas creche could be displayed on public property. In calling for consensus on the Court, Chief Justice Roberts has on his side the overwhelming majority of the people who have served as justices during its history. Indeed, so much was consensus the norm prior to the 1940s that there was a flavor of ethical breach associated with dissent. For example, Canon 19 of the 1924 Canons of Judicial Ethics directed the members of "courts of last resort" to "use effort and self-restraint to promote solidarity of conclusion and the consequent influence of judicial decision. …