“In a democracy, dissent is an act of faith.”
— J. William Fulbright
“Discussion in America means dissent.”
— James Thurber
I have written before in this space about the remarkable agreeableness of the United States Supreme Court term which came to an end two weeks ago. Now that the term is over and all seventy decisions have been issued, the incredible depth of that agreeableness is now apparent. In part, the sparse dissents were dictated by necessity — with only eight Justices, the Court was working hard not to split 4-4 and fail to provide clarity to the courts below.
To a large extent, however, the harmony on the High Court is part of a concerted effort by the Chief Justice to restore the American public’s faith in the Court — to convince us that these nine men and women are working hard to provide fair and equitable decisions based in law, and not as another hyper-political branch. In this year, at least, he succeeded, perhaps nowhere more clearly than in the final decision issued by the Court this term.
In all, 67 percent of the Court’s decisions this term were unanimous (47 out of 70), meaning that there were no dissents, or that one or two Justices may have differed in logic, but they all came to the same conclusion on the holding of the case. Thirty-three of those were by a vote of 8-0 (before Justice Gorsuch joined the Court), two were by a vote of 7-0 (with another Justice recusing themselves), and twelve were by a vote of 9-0 after the Court got back to its full membership.
Four more decisions had only one dissenting vote and twelve more had only two dissents. That meant that 63 of the court’s 70 decisions were by a vote between 6-2 and 9-0. That’s 90 percent of the term’s cases. Four cases split 5-3 and only three cases in the entire term were 5-4 decisions. Those three cases, all decided, obviously, after Gorsuch was sworn in, addressed when an indigent defendant in a criminal case is entitled to a mental health expert, the effect of the statute of limitations in securities transactions, and the procedure by which a criminal defendant can claim ineffective assistance of post-conviction counsel. The Court’s “conservative wing” was in the minority in one of those cases, and the “liberal wing” in the minority in two.
With the exception of Justice Gorsuch, who joined late in the term and wrote only one decision, the authorship of the Court’s cases was remarkably evenly split. Every single one of the other eight Justices authored either seven or eight of the Court’s decisions. Nine decisions were issued “per curium,” or without attribution to a particular Justice.
The same cannot be said about dissents. Once again, Justice Thomas, who is famous for saying nothing during oral arguments, said plenty in dissent. He departed from the majority in
eleven out of seventy cases. Justices Alito and Ginsburg dissented eight times each. Justice Sotomayor was next with seven, then Breyer with six, Kagan five, the Chief Justice four, and Gorsuch two. Justice Kennedy, who is known to provide the ‘swing’ vote in close cases, dissented only once all term- in a case about copyright protection of two-dimensional designs, in which he joined Justice Breyer in dissent.
There were clear patterns in those dissents too. Every one of Justice Alito’s eight dissents occurred in concert with Justice Thomas (Thomas dissented twice on his own, and once with Gorsuch). Justices Sotomayor and Ginsburg dissented together on six occasions — all but one of Sotomayor’s dissents. As he is the swing vote, it’s not surprising that Justice Kennedy authored the most decisions that generated dissents, with five. Amazingly, none of Justice Sotomayor’s seven decisions generated a full-throated dissent.
No case demonstrated the effort toward unanimity and in avoidance of political partisanship than the Court’s 70th and final decision, which allowed most of the President’s Executive Order on immigration to go into effect. Despite the politically sensitive nature of that issue, the Court’s decision in that case was issued per curium and was unanimous. The only crack in that unanimity was that two Justices wrote to say that they would have gone a step further, and not placed any restrictions at all.
This term was largely absent the hot button social issues. The 2017-18 term will revisit some of those contentious issues and the Court will tackle them all with nine Justices on the bench. Whether this new era of unanimity can hold will be strongly tested next term.
David Hejmanowski is Judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas.