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Consensus on the Supreme Court?

Supreme courtOn Monday the U.S. Supreme Court will wrap up its term with decisions expected in two remaining cases.

In Burwell v. Hobby Lobby, Inc., the justices will decide whether the Affordable Care Act’s contraception mandate unconstitutionally impinges upon the company’s religious freedom. (Read more about the case here.)

In Harris v. Quinn, the justices will decide whether home healthcare aids who do not want to join a union can be compelled nonetheless to pay for the union’s contract negotiation efforts (“fair share” fees).  Read more about the case here.

With those decisions, legal experts and pundits can complete the ritual of devining trends and alliances on the court. And this year, so far, what’s stood out is the unanimity with which the justices have acted.  Of the Court’s 70 decisions this term, 47 have been unanimous. 

According to Neal Katyal, an attorney who argued four cases before the Court this term, the last time this happened was 1940.

Katyal casts that consensus in lofty terms in this New York Times op-ed:

The justices’ ability to cross partisan divides and find common ground in their bottom-line judgment in roughly two-thirds of their cases — including the two decisions handed down Thursday, restricting the president’s ability to issue recess appointments during brief breaks in the Senate’s work, and striking down a Massachusetts ban on protests near abortion clinics — should remind us that even in this hyperpartisan age, there is a difference between law and politics.

Unanimity is important because it signals that the justices can rise above their differences and interpret the law without partisanship. The best illustration of this in the modern era is Brown v. Board of Education, in which the court unanimously declared racial segregation in education to be unconstitutional. When the justices forge common ground, it signals to the nation the deep-seated roots of what the court has said and contributes to stability in the fabric of the law.

But Garrett Epps, a former Washington Post reporter who teaches constitutional law at the University of Baltimore, characterizes the justices’ unanimity this term as somewhat superficial, reminding us that deep partisan divides still linger beneath the surface.

Agreement this term may be more pragmatic, he writes in this Atlantic piece:

The unanimity refers to results. Equally important in a Supreme Court case is the reasoning on an opinion. A Court’s explanation of its decision will create a new precedent and narrow, expand, or overrule old ones. And in reasoning, the Roberts Court is sharply divided.

On one side is the four-justice moderate-liberal bloc: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. On the other is a hard-right gang of three—Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. Roberts and Justice Anthony Kennedy are both very conservative, but unlike the other three, they don’t always insist on total triumph, and sometimes make common cause with the moderate liberals.

That’s what happened Thursday in two “unanimous” cases. Nine justices agreed on the result, but they split 5-4 on the reasoning. In both cases, the moderate side wrote the opinion of the Court because Roberts or Kennedy joined it. In both cases, four conservative justices wanted to radically change the law; in both cases, a five-justice majority opted for incremental change.

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