After the Supreme Court’s draft opinion rejecting a right to abortion was leaked, public confidence in the Court dropped to its lowest level in the past 50 years. And with additional controversial decisions on guns and climate change, concerns about the court’s legitimacy have increased. To more and more people, the justices operate as political partisans rather than neutral arbiters.
While Chief Justice John Roberts has argued that disagreement with the justices’ decisions should not undermine the Court’s legitimacy, he needs to do more. As he contemplates the harm to the Court’s standing, Roberts would do well to follow the example of one of his most influential predecessors, Chief Justice John Marshall. Marshall came to the court in 1801 at another time when the court’s legitimacy was at an ebb.
During its initial years, the court had followed the British practice of each justice writing a separate opinion. But that approach made it difficult for lawyers, lower court judges, and the public to know what the court actually held. As University of Chicago Law School Professor M. Todd Henderson has written, this resulted in “a weak and divided Court unable to assert any real authority.”
Chief Justice Marshall instituted a policy of a single opinion for the court, so the justices could speak with a unified voice. In Marshall’s first four years as chief, all of the court’s opinions were issued for the Court as a whole, with one concurring opinion and no dissenting opinions. During this important period, the court decided Marbury v. Madison, establishing judicial supremacy on the interpretation of the Constitution. The court’s norm of consensus lasted until 1941, and over the 140 years, the court decided more than 90 percent of its cases unanimously.
Reviving the practice of unanimous decisions—and requiring it for all cases—would do much to restore the court’s legitimacy. When national policy on critical issues like abortion, gun control, and climate change can be decided by a court majority, the losing side can easily feel that the decisions are based on ideology rather than legal principle. That is an important reason why the court has in the past favored consensus decisions. Perhaps the most famous example occurred in Brown v. Board of Education of Topekawhen the Court held that segregated schools violated the Equal Protection Clause by a 9-0 vote. While the Court could have decided the case with a 6-3 majority, the justices recognized the importance of unanimity in landmark cases and therefore scheduled a reargument of the case to secure the support of all nine justices.
It’s not surprising that unanimous decisions would enhance a court’s legitimacy. The example of the jury is illustrative. When judicial decisions are made by juries, the Supreme Court has generally required consensus. The justices have required unanimous jury decisions in federal and state criminal cases, and they also have required juror unanimity in federal civil cases.
In requiring unanimous juries, the court has identified a few key considerations that reinforce judicial legitimacy. We should have a fair cross-section of the community participate in the decision-making process, and the members of the jury should reach a consensus decision after careful deliberation. These considerations also apply to decisions by the Supreme Court. It is important to have justices with a range of backgrounds and ideological perspectives who reach a consensus decision after careful deliberation.
When people with different perspectives come together for a thoughtful and reasoned exchange of ideas and arguments, they become more aware of the strengths and weaknesses of the opinions of others, as well as of their own views. As a result, they make better decisions.
Empirical studies of decision making come to the same conclusion. When people with different perspectives make decisions together, they can identify solutions that none of them acting alone would have recognized. Their different ideas can combine to identify new approaches. Thus, rather than merely splitting their differences, they can discover win-win outcomes that make for better overall results.
And unanimous decisions are fairer decisions. Because the Supreme Court’s decisions reflect the philosophical leanings of the justices, and decisions can be determined by a majority on one side of the ideological spectrum, our judicial system denies an impartial hearing to parties on the other side of the ideological spectrum. That is fundamentally unfair in a constitutional system that promises litigants a neutral judicial process.
As the Brownschool integration decision indicates, a unanimous court will still issue pathbreaking decisions. The court also voted unanimously when it struck down bans on interracial marriage in Loving v. Virginia, recognized the right to counsel for criminal defendants in Gideon v. Wainwright, and limited presidential executive privilege in United States v. Nixon.
We need not worry about gridlock from a requirement of unanimity. As mentioned, the Supreme Court decided cases unanimously more than 90 percent of the time under its norm of consensus, even when not required to do so, and European high courts function effectively today under a norm of consensus. This experience reflects the fact that there always will be common ground on which the majority and minority can settle.
In addition, the court has an obligation to resolve critical legal questions, and we can expect justices to fulfill the duties of their position. As Justice Elena Kagan observed when the court had a 4-4 ideological split between the death of Justice Antonin Scalia and the appointment of Justice Neil Gorsuch in 2016-17, the justices had a greater need to find common ground, and they worked harder to do so. The justices also would have a strong personal incentive to find common ground under a requirement of unanimity—their desire to leave an important judicial legacy. Coming to consensus would allow them to make a difference in resolving major legal questions.
While the Supreme Court’s practice of deciding cases by majority vote may seem natural, it lacks grounding in legal principle or empirical value. With unanimous decision-making, the Supreme Court would reach better decisions and do so in an impartial way. And that is essential for preserving the court’s legitimacy when it decides critical issues like reproductive rights, public safety, and climate change.
David Orentlicher, MD, JD, is Judge Jack and Lulu Lehman Professor and director of the UNLV Health Law Program.