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Roberts' Court Produces More Unanimous Decisions


Also here in Washington, there's a lot of talk about the Supreme Court and about how often the justices seem to agree. Since the court's membership began to change, about 70 percent of the cases decided in this term have been unanimous. Which leads to a question: is the court suddenly marching more in unison or is it a mirage?

Here's NPR Legal Affairs Correspondent Nina Totenberg.


The numbers are startling. Of the 44 cases decided by the end of last week, 29 were unanimous and only three opinions have been by a 5-4 vote, compared to 17 at this time last year. The unanimity is something Chief Justice John Roberts pointed to last week when he spoke to the prestigious American Law Institute.

Chief Justice JOHN ROBERTS (U.S. Supreme Court): I bring news from the front. About an hour ago we announced four decisions, and I'm happy to announce that across those four decisions, there was not one dissenting opinion.

Professor RICHARD LAZARUS (Georgetown University): They're doing something quite radical, at least something radical here in Washington, DC. They're agreeing.

TOTENBERG: Law professor Richard Lazarus directs the Supreme Court Institute at Georgetown University, and he attributes the new unanimity to the leadership of his old friend, Chief Justice Roberts.

Prof. LAZARUS: What you see happening in the result is a greater emphasis on the Justices talking to each other. And I think even more important than that, listening to each other. We've all been hearing about, there's more of that going on at conference.

TOTENBERG: The conference is the weekly meeting attended by the justices at which they discuss and vote on cases. By all accounts, the late Chief Justice Rehnquist ran these sessions with a steely eye on the clock. The Justices spoke briefly, voted, and left, often in less than an hour.

These days, the word is that Chief Justice Roberts allows the discussion to go on considerably longer, leading to speculation that this is the reason for greater consensus.

Mr. TOM GOLDSTEIN (Attorney): I think it overstates things to say that peace has broken out.

TOTENBERG: Tom Goldstein heads the Supreme Court practice at the law firm of Akin Gump. Yes, he agrees there's more unanimity so far.

Mr. GOLDSTEIN: That mostly has to do with the fact that when you get new people, just like we meet new people in our daily lives, we go out of our way to be as agreeable as possible. And the justices have done that this year by deciding as little as possible. But over the next few years that's going to change, and they're really going to confront these hard questions and they'll be back to the big five-four disagreements they've had in the past.

TOTENBERG: Not only is this a Supreme Court in transition, with two new justices this term, but Justice Sandra Day O'Conner served until her successor, Samuel Alito, was confirmed in February, and the Court tried hard to dispose of as many cases as possible before her departure so the cases wouldn't have to be re-argued.

The way to do that was clearly to decide cases on the narrowest grounds possible, so that even in an abortion case involving parental notification, the decision was unanimous.

A minimalist approach, however, doesn't explain everything, says former Solicitor General Ted Olson.

Mr. THEODORE OLSON (Former Solicitor General): Of course Chief Justice Rehnquist believed in that too, but a new, fresh justice coming in, to the extent that he can find, or the Court can find under his leadership, the narrowest ground upon which to decide a decision, that makes it easier to achieve unanimity.

TOTENBERG: In the last analysis, though, most concede that the court's unanimity is largely attributable to the fact that, with a couple of notable exceptions, so far the Roberts Court has not decided very much.

Last week, for example, in a patent case with billion dollar ramifications, the Court issued a unanimous ruling on the most limited of grounds. Two groups of justices, however, filed concurring opinions, indicating major disagreements on the larger issue in the case, and leaving that big issue to be resolved a year or two from now.

Former Deputy Solicitor General Carter Phillips, who worked with both Chief Justice Roberts and Justice Alito in the Reagan Justice Department, argued that case and sees this as something of a place holding term. Indeed, he says, both Roberts and Alito have said as much.

Mr. CARTER PHILLIPS (Former Deputy Solicitor General): They consistently say, and that's not just to me privately, that they're waiting for the summer. They want to get to that point in time where the cases are finished for this term and they can catch their breath again and have an opportunity to get into a groove of some sort so they can actually read the briefs in a more orderly fashion.

TOTENBERG: Roberts and Alito, remember, went immediately from confirmation to sitting on cases. For all these reasons, the unanimity of this term may be an anomaly.

Again, Carter Phillips.

Mr. PHILLIPS: I would be shocked if we were three years out and you're getting anywhere near this kind of a consensus.

TOTENBERG: In short, what you're seeing so far is a new court that's much like a baseball team with a new pitcher and third baseman. It's as if for the most part the new team has decided to spend this season avoiding real games and just honing its skills.

Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.