by Matt Barr

Breaking: Supreme Court decides hard cases

Recaps of the Court's now-completed October Term 2005 without fail are seizing on the fact that the last decisions released were contentious and included strong differing opinions. Law.com:

There, on the final day of the Court's term, June 29, was Justice John Paul Stevens, calmly defiant as he read from his landmark opinion in the Guantanamo Bay, Cuba, detainee case Hamdan v. Rumsfeld. The 73-page ruling against the Bush administration's military commissions thoroughly trashed an appeals court ruling joined by the man sitting next to Stevens, Chief Justice John Roberts Jr., when he was on the U.S. Court of Appeals for the D.C. Circuit.

Then came Justice Antonin Scalia, reading his dissent with a mournful tone of disgust, as if he were disowning a child. "I vigorously dissent," he said, pointedly omitting the word "respectfully," which justices usually recite in dissent, even if they don't mean it. Justice Clarence Thomas was next, also in dissent, and he joked bitterly that the Court was more willing to heed the Army Corps of Engineers' definition of navigable waters than it was to defer to the president of the United States in wartime.

So much for unanimity at the Supreme Court.

The New York Times intones, Roberts Is at Court's Helm, but He Isn't Yet in Control:

In the court's most significant nonunanimous cases, Chief Justice Roberts was in dissent almost as often as he was in the majority. His goal of inspiring the court to speak softly and unanimously seemed a distant aspiration as important cases failed to produce majority opinions and members of the court, including occasionally the chief justice himself, gave voice to their frustration and pique with colleagues who did not see things their way.

The term's closing weeks were particularly ragged. The court issued no decision in a major patent case that had drawn intense interest from the business community, announcing two months after the argument, over the dissents of three justices, that the case had been "improvidently granted" — they should not have agreed to decide it — in the first place.

That does sound ragged. But I think Prof. Althouse makes the most important point about all this:

The Court knows it has a termful of cases to resolve, and it is natural to sort through difficult work this way. Eliminate the things you aren't going to work on seriously, get through the things you can resolve simply and by consensus, and take the longest to work through the most difficult problems where there is the most divergent opinion.

Sho nuff. Recall that at comparable times during the last two terms it was clear that the last Rehnquist Court was far more fractious, and that it was clear the first Roberts Court was seeing more consensus and even unanimity.

Linda Greenhouse's assertion that "in the court's most significant nonunanimous cases, Chief Justice Roberts was in dissent almost as often as he was in the majority" is probably technically true, but misleading. You can dither over how precise a measure this is, but the fact that in the Term's first 50 cases Roberts voted with the majority 92 percent of the time is significant. His predecessor, through OT 2004's first 38 cases (28 of which he participated in), was in the majority 75 percent of the time, and no Justice was in the majority as often as nine times out of 10.

Tough cases, with Justices possibly not having made up their minds (because they're tough cases), or perfecting an opinion, or jostling to pick up a vote or two, come out at the end. This is true every Term, and seizing on this wholly unremarkable phenomenon to declare "so much for unanimity at the Supreme Court" is irresponsible.

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