Record Unanimity on Votes Masks U.S. High Court Divisions

A U.S. Supreme Court term that set a modern record for consensus laid the groundwork for divisive showdowns ahead.

The justices this week closed a nine-month term in which 65 percent of the rulings were unanimous -- the highest in decades, according to Tom Goldstein, the founder of the court-tracking website Scotusblog. The court voted 9-0 to resolve weighty cases on presidential appointments, mobile-phone privacy, abortion protests, congressional power and shareholder lawsuits.

That surface harmony failed to mask the chasms on the nine-member court. Justice Antonin Scalia blasted the reasoning in the abortion and appointments rulings. And justices across the court sparred -- at times in personal terms -- over campaign-finance limits, affirmative action and religious rights.

“It’s almost like the justices were shadow boxing this term, waiting to engage in the next term,” said Michael Dorf, a constitutional law professor at Cornell University Law School.

The term that will start in October may bring a number of divisive questions to the court, starting with gay marriage and potentially including simmering legal battles involving gun rights and access to abortion.

The court ended the current term with two of its most contentious rulings. In a 5-4 decision that limited President Barack Obama’s health-care law, the majority said closely held companies can refuse on religious grounds to include contraceptive coverage in worker insurance plans.

In dissent, Justice Ruth Bader Ginsburg said the ruling had “startling breadth,” potentially letting companies opt out of covering blood transfusions and vaccinations or complying with gender-discrimination laws. A majority justice, Anthony Kennedy, countered that the decision “does not have the breadth and sweep” Ginsburg ascribed to it.

Inducing Anxiety

A second 5-4 decision raised doubts about a 1977 ruling that said public-sector employees can be compelled to pay for union representation. Although the court ruled narrowly in the latest case -- saying the Illinois in-home care workers at issue weren’t public employees -- the majority’s rhetoric suggested that the 37-year-old precedent was in jeopardy.

“What should have every union officer grabbing for a bottle of antacids is the thought process revealed by the majority,” said Mark Neuberger, a labor lawyer at Foley & Lardner in Miami. “They view compulsory union membership as a restraint of free speech.”

Ideological Divide

Both cases divided the court along ideological lines, with the five Republican appointees -- Chief Justice John Roberts joining justices Kennedy, Scalia, Clarence Thomas and Samuel Alito -- in the majority.

That same group formed the majority as the court invoked the Constitution’s free-speech guarantee to invalidate decades-old limits on the total amount political donors can give to federal candidates and parties. The ruling left intact a 1976 Supreme Court decision that allows caps on contributions to individual candidates.

The 5-4 decisions were the exception, rather than the rule. Only 10 of the court’s 72 rulings were decided by a single vote -- another record low in the modern era, says Goldstein, whose blog is sponsored by Bloomberg Law.

In several cases, the court’s four Democratic appointees agreed to a narrow ruling against the Obama administration, joining with one or more Republican appointees to fend off a more sweeping decision.

That happened when the court struck down a Massachusetts law that created a 35-foot protest-free zone around the entrances to abortion clinic. Justices Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan signed onto a Roberts opinion that said the state should have tried less-restrictive means to protect clinic entrances.

Abortion Speech

The other four justices agreed only with the result, not the reasoning. Scalia, writing for three justices, accused the Roberts group of creating an “entirely separate, abridged edition of the First Amendment applicable to speech against abortion.”

A similar coalition prevented more sweeping limits on the president’s power to make recess appointments. Joining this time with Kennedy, the Democratic-appointed justices said Obama violated the Constitution when he made appointments to the National Labor Relations Board during a three-day Senate break.

Again, Scalia agreed only with the result, saying the court should have gone further in restricting the president. He said the court was “aggrandizing the presidency beyond its constitutional bounds and undermining respect for the separation of powers.”

Roberts’ Imprint

The unanimity often bore Roberts’ imprint. In a case that might have proven divisive, he wrote the court’s opinion interpreting a federal chemical-weapons law so as not to apply to a woman who tried to poison her husband’s lover.

Roberts also steered the court in a case that threatened to wipe out class-action securities litigation. His opinion instead erected a new hurdle for suing investors -- one that Ginsburg wrote will “impose no heavy toll on securities-fraud plaintiffs with tenable claims.”

Roberts also was the author of the court’s groundbreaking - - and unanimous -- decision requiring police officers to get a warrant before searching the mobile phone of a person they arrest. That privacy-rights decision surprised many observers, in part because the argument session suggested the court would take a more cautious approach.

Finding Consensus

Roberts joined the court in 2005 promising to find consensus among the justices when possible.

“He would like, I’m sure, to have true consensus,” said Kermit Roosevelt III, a constitutional law professor at the University of Pennsylvania Law School. “But if he can’t have that -- and he can’t in many cases -- he’s willing to accept superficial consensus.”

Roberts’ efforts haven’t translated into public approval. According to a Gallup poll released this week, American confidence in the court has reached a new low with only 30 percent saying they have either a great deal or quite a lot of confidence in the institution. The poll, conducted June 5-8, has a margin of error of plus or minus 4 percentage points.

Roberts himself was in the middle of the court’s divisions when it voted 6-2 to uphold Michigan’s voter-approved ban on racial preferences. Sotomayor, the court’s first Hispanic justice, dissented with a passionate case for affirmative action.

‘Stark Reality’

Along the way, she criticized Roberts’ 2007 statement that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

“This refusal to accept the stark reality that race matters is regrettable,” Sotomayor wrote.

The volley prompted Roberts to defend himself. “People can disagree in good faith on this issue,” he said. It “does more harm than good to question the openness and candor of those on either side of the debate.”

That type of tension underpinned the nine-month term, even where unanimity prevailed.

“There seems to be something afoot, an effort by the court to try and come together even if it’s just nominally in the result and not in the reasoning,” Goldstein said. “It shouldn’t hide the fact that there are significant disagreements on the court.”