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Speculating About the Unanimous Opinions:
Over at Bench Memos, Ed Whelan comments:
The emerging story of this Supreme Court term would appear to be how many supposedly controversial cases have yielded unanimous opinions. A honeymoon for Chief Justice Roberts? A testament to his leadership? Or something else?
Meanwhile, Marty Lederman comments on today's decision here.
CJColucci (mail):
Here's an idea. Maybe the opinions were unanimous because they were right. I know there are people who don't think results can be accounted for by such niggling concerns as correctness, but maybe there's more to the notion than is widely thought.
3.6.2006 12:19pm
Kate1999 (mail):
CJColucci,

Okay, then why did the Rehnquist Court have such a hard time achieving unanimity? Why did some Justices not see the light of correctness before, when they can see it now?
3.6.2006 12:21pm
CJColucci (mail):
Sample size. We have in a few months a handful of relatively easy cases that came out 8-0. The Rehnquist Court lasted a long time and issued a lot of opinions. Many of them were easy and unanimous. Over time, a lot of them were hard and genuinely controversial. And many of those, in the view of a large number of competent commentators, came out wrong. Some of them established themselves anyway, since one gets tired of beating one's head against a brick wall, and led to unanimous opinions in later cases including Justices who didn't agree with the earlier ones.
3.6.2006 12:29pm
Medis:
It may be too early to detect an overall trend. But in this case, at least, I note that Lederman also sees this decision as cutting back on Dale et al., and I am sure that implication did not escape those on the Court who dissented in Dale (Stevens, Souter, Ginsburg, and Breyer). Meanwhile, I suspect that the end result in FAIR would be identified as the "conservative" result.

So, it is perhaps not too surprising that this decision had unanimous support.
3.6.2006 12:32pm
Visitor Again:
Perhaps the justices writing these majority opinions are now leaving out unnecessary statements that provoked controiversy--and concurrences and dissents. Some opinions in the late Rehnquist era contained throw=away lines that practically invited separate opinions. And once a justice decides to write separately, he or she reexamines the whole case and even more disagreements with the majority opinion arise.
3.6.2006 12:33pm
Houston Lawyer:
Lets hope that the new chief has pressed his colleagues for fewer and shorter opinions. While I enjoy a strongly worded dissent from time to time, many dissents these days seem to be based upon the ego of the writer. Maybe with SOC gone we can also get away from the infinite shades of grey and get some clearer rules.
3.6.2006 12:43pm
Steve:
I think there was a strategic decision during the O'Connor/Alito changeover to focus on some of the easier cases where one swing vote wouldn't make any difference. That said, I always did feel like Rehnquist was a poor Chief Justice because he devoted little effort to achieving consensus or even a broad majority - once he had five votes for the result he favored, it seemed like that was all he cared about.

It's really too soon to tell, but perhaps Roberts will work on reversing this trend and helping the public to see that not every basic principle in American life depends on who is on the lucky side of a 5-4 judicial coinflip today. Of course, even though you can sometimes achieve unanimity by focusing on narrow procedural issues and the like, that doesn't really help clarify our overall body of jurisprudence at all. If all the Supreme Court cares to do with a case is remand it 9-0 because an i wasn't dotted, they could have just as well not taken the case in the first place.
3.6.2006 12:47pm
HeScreams (mail):
In the thread about FAIR, someone raised this question, and someone else answered it (I thought effectively). In summary, with the court in flux until just recently, the court has been putting off cases/opinions that are controversial or close. Now, with Alito confirmed, they can consider these cases. I can't imagine that this is some kind of trend.
3.6.2006 12:49pm
DJ (mail):
I think this was unanimous because it stated the general legal principles correctly and, where necessary, offered careful and plausible distinctions from earlier cases. What's more, its tone was modest and not bombastic (with the minor exception of pointing out--correctly--that the compelled speech argument here trivializes Barnette). I think it's an excellent example of cautious judicial craftsmanship.

I'm not sure I understand Marty Lederman's analysis of the Court's discussion of Dale. I'd think it is rather uncontroversial that Dale and its progenitors dealt in the first instance with laws that had the effect of regulating private associations' membership. No one questioned that principle in Dale, as far as I can recall. Rather, the issue there was whether the Scouts had, in Justice Souter's words, made sexual orientation the "subject of any unequivocal advocacy." And the opinions of the majority and minority turned on that question.

The FAIR opinion doesn't reach this question, of course, because the Court concluded that expressive association is not simply a question of advocacy, but requires some state regulation of membership. I suppose this could represent a retreat from some imagined full-scale application of the expressive association doctrine to employers, corporations, families or other non-membership group entities. But was such a libertarian revolution ever really plausible?
3.6.2006 12:57pm
Medis:
DJ,

There was another issue in Dale: whether requiring the Boy Scouts to allow a gay Scoutmaster would substantially impair their communication of their alleged messages on homosexuality. FAIR does reach a similar issue, because the question is not whether the law schools have their own messages to communicate about homosexuality, but rather whether being required to allow military recruiting would impair the law schools' ability to communicate their messages. The Third Circuit expressly based its decision on this issue on the deferential reasoning in Dale, and it appears that the Court in FAIR has cut back on this deferential reasoning.
3.6.2006 1:11pm
Dale Gribble (mail) (www):
the erstwhile dissenting justices slept through the arguments
3.6.2006 1:13pm
KeithK (mail):
Lets wait until at least June before we say whether there is a trend. It may be that the contentious cases haven't come out yet and we'll see some 5-4's and 6-3's at the end of the term. Or maybe not. Right now we're just speculating on limited data, which is all well and good as long as you don't put too much faith into the conclusions.

Better yet, lets wait until June of 2007.
3.6.2006 1:25pm
Wrigley:
Dale,


[T]he erstwhile dissenting justices slept through the arguments.


That has never stopped Thomas before.
3.6.2006 1:52pm
Arthur (mail):
This is just an artifact of the time of year. Opinions with dissents take longer to come out, simply becaue (1) more people have to finish writing amd (2) they have to circulate drafts an extra round or two to incorporate responses. The most divided opinions generally come out very late in the term. It's like getting your baseball news from the morning paper, and concluding that night games never go into extra innings.
3.6.2006 1:56pm
Dave Hardy (mail) (www):
The explanation is pretty simple. The Court deals with the easiest cases first. First decisions of the term are largely 9-0s, last decisions 5-4s.

I noticed that years ago when watching the docket for one of my own appeals. It ended as a 5-4, and was the very last ruling of the Term. I've observed the pattern in every term since. Get the easy ones out of the way first.
3.6.2006 1:56pm
WB:
I don't know if it "deals with the easiest cases first" so much as it just usually takes longer to get a 5-4 opinion done.
3.6.2006 2:56pm
JunkYardLawDog (mail):
If this is such a straight forward and correct decision, why did the 3rd Circuit get it WRONG? What's wrong with those judges.

Isn't ther a lot of overlap between the law professors who brought this case and so obviously (now according to commenters above) wrong on what the straight forward application of the law required and the law professors who assure us that the NSA terrorist surveillance program is unlawful.

Maybe military recruiters AND NSA Terrorist Surveillance are BOTH lawful straight forward applications of the law, that these politically motivated, as opposed to dispassionate review of the law motivated, professors got wrong on BOTH occassions.

Says the "Dog"
3.6.2006 3:51pm
Visitor Again:
I read sonmehwere recently that a huge proportion of the Califonria Supreme Court opinions have been unanimous. I could be wrong, but I think the story said something like 65 percent. That is as troubling as a court that issues splintered opinions.
3.6.2006 3:53pm
nc_litigator (mail):
If this is such a straight forward and correct decision, why did the 3rd Circuit get it WRONG? What's wrong with those judges.


Yes, I suppose they should have put been on the 9th Circuit.
3.6.2006 3:54pm
DJ (mail):
That's interesting, Medis. I suppose we'll have to leave for another day whether FAIR has, as you suggest, collapsed the speech accommodation and expressive association doctrines. Even so, I don't think that's a fair reading here, because the Court was careful to conclude that the law schools had no speech interest at stake (only speech incidental to conduct), and, of course, the Court punted on the expressive association question by holding that that doctrine doesn't come into play unless the state action has the effect of defining a group's membership.

I agree that the Roberts Court might scale back on Dale's highly deferential approach (and maybe that's what Marty Lederman was getting at). But I see nothing in FAIR that would give us any hint that a majority of this Court is prepared to do so.
3.6.2006 4:00pm
SimonD (www):
I have a post here, from last week, which compares the first five months of the Roberts Court to the first five months of the previous four terms. I conclude that quite aside from the qualitative question (reading the opinions, this term just downright feels more collegial than previous terms) it can quantitatively be shown that this term has the lowest number of dissenting opinions in five years, by a margin of nearly 10%, and the second lowest number of dissenting votes in the same period, beaten by a hair by OT'02.
3.6.2006 5:06pm
Medis:
DJ,

You say: "the Court punted on the expressive association question by holding that that doctrine doesn't come into play unless the state action has the effect of defining a group's membership." But the Court actually stated: "FAIR correctly notes that the freedom of expressive association protects more than just a group's membership decisions."

The Court also specifically reached the issue that I noted, reasoning:

"The law schools say that allowing military recruiters equal access impairs their own expression by requiring them to associate with the recruiters, but just as saying conduct is undertaken for expressive purposes cannot make it symbolic speech, see supra at 16, so too a speaker cannot 'erect a shield' against laws requiring access 'simply by asserting' that mere association 'would impair its message.' 530 U.S. at 653."

So, it seems to me that the Court did not "punt" on this issue. Rather, they squarely reached it and then decided not to apply any sort of deference to FAIR's claims.

That said, I agree that after FAIR, one might be tempted to read the deferential reasoning in Dale as being limited to actual membership cases. But that in itself would be a very significant limitation, and it would imply that PruneYard remains the controlling case outside of pure membership cases. Which is basically what Lederman is pointing out.
3.6.2006 5:10pm
Silicon Valley Jim:
I read sonmehwere recently that a huge proportion of the Califonria Supreme Court opinions have been unanimous. I could be wrong, but I think the story said something like 65 percent. That is as troubling as a court that issues splintered opinions.

It may be, but I'd like to know what percentage of opinions in, say, the United States Supreme Court and the highest appellate courts in Texas, New York, (where, if memory serves, the highest court is the Court of Appeals and the trial court is named the Supreme Court), Florida, and Illinois (to pick the four other most populous states) are unanimous before I drew that conclusion.

Anybody have any data?
3.6.2006 5:33pm
Kovarsky (mail):
Where is the argument coming from that the Roberts court is going to cut back on Dale?
3.6.2006 5:34pm
WB:
I don't know, Dog, why don't you read the Third Circuit opinion?

As Judge Ambro (and Judge Stapleton, apparently) read Boy Scouts v. Dale, the Supreme Court essentially took the Boy Scouts at their word for what they said their expressive message was and invalidated the application of a New Jersey civil rights law to the Boy Scouts on the basis that it infringed on the Boy Scouts' right of expressive association.

Similarly, they felt bound in FAIR v. Rumsfeld to apply the same reasoning: (1) the law schools say that one of their core values is anti-discrimination, (2) BSA v. Dale says that the court has to take them at their word, (3) a law forcing them to have the military on campus undercuts that message and therefore infringes on their rights of expressive association.

Step 3 is a bit of a leap, and the Supreme Court basically said that there's a meaningful difference between allowing a recruiter on campus for a couple of days and being forced to admit members into your group. It's not the greatest distinction in the world. The Supreme Court also said that admitting members and choosing leaders in the Boy Scouts is an expressive activity, while campus recruiting isn't so much... and they added that Congress's power to raise and support armies favors deference.

Maybe the case wasn't argued well at the Third Circuit, or maybe the CA3 judges just read Dale more broadly than the current Supreme Court does.
3.6.2006 6:58pm
Mary Katherine Day-Petrano (mail):
"The emerging story of this Supreme Court term would appear to be how many supposedly controversial cases have yielded unanimous opinions. A honeymoon for Chief Justice Roberts? A testament to his leadership? Or something else?"

Gosh, I will have to withhold my beliefs about this, given the apparently unanimous SCOTUS case disposition of Mon. Mar. 06, 2006 upholding the Florida court's medical diagnosis without medical licensure of my 20/20 vision as establishing a new protected disability I did not know I have under the Americans With Disbailities Act of blindness, i.e., can't see. I am now by res judicata ruling substantially limited in the major life activity of seeing.

What is the world coming to? But every cloud has a silver lining, and life always teachs one dealt lemons to turn lemons into lemonade.

Simon writes on SCOTUSblog -- "I have to admit that, on the basis of her previous comments at SCOTUSblog, I approach the prospect of agreeing with Mary with some trepidation, but I have to admit that having read the Jones v. State opinion, my gut feeling is that the dissent has it absolutely right. Frankly, I have to admit that I'm confused by the majority."

I can understand Simon's "trepidation," but, based on the following, I dispute that such trepidation should be ascribed to me rather than America's lawyers and judges making medical diagnoses without medical licensure.

I am disabled, autistic. I also have traumatic brain injury from my father bashing my head against his walls to cover up drugging me and sexually abusing me when I was a minor child.

I have lived a life of Hell on Earth, no affordable housing. Lived in my car, in vineyards in California at nite, and in a rat infested chinchilla barn with no toilet, heat, or food facilities.

I tried to pull myself up by my bootstraps. Went to college on student loans, $200,000 at last count. Fought valiantly to graduate law school.

My father, who bashed my head, could not let the defective child become a lawyer and expose his National Security surveillance work for IBM. So he spent $100,000 on five attorneys and a family law psychologist to abuse me in the California courts in a grandparent visitation, taking away complete custody over my daughter just because he "could provide better" on his $12,600 per month income than I could being disabled -- never any finding of parental unfitness on my part.

The California courts refused to provide my necessary reasonable accommodations to access the courts to fight for my daughter, so my mother tried to help scribe my pleadings for me. Allowing a defective disabled autistic to actually participate in court was too much for the Court system and the attorneys, so they caused my mother (who was my caretaker and financial provider) to set herself on fire and die on my father's front law with public protest signs over the abuse, which I witnessed acquiring PTSD.

Immediately after she died, I was thrown on the streets homeless with no replacement caretaker or financial support of any kind. It was a terror-filled torture I cannot begin to describe. I begged everyone I still knew to help me get pleadings scribed to put before the California court that killed her to ask my father to pay disability adult child support, since after my mother died he was my only available guardian for purposes of my ability to communicate with courts and agencies for disability benefits.

The California courts have never in 16 years given me a day for that hearing, ever.

My father hired new attorneys to threaten me, knowing he was my guardian and had fiduciary duties to assist me with obtaining the disability adult support from him, who threatened that if I did not sign a paper dropping my necessary disability support, my father would destroy my California bar admission.

Immediately after my mother died, the California Bar revoked my previously granted good moral character clearance because I was disabled and my mother had self-immolated and I lost my caretaker and financial supporter. Even though I fought with them for 7 long years to get my necessary reasonable accommodations, and finally when I got them on the 4th bar examination and passed, they ruled I was not of the moral character to be allowed to become a California lawyer because I kept being homeless due to no housing in that area of California anyone on SSI disability could afford and because without a speech recognition assistive device I was unable to perform the tasks of working. They approved the good moral character of a murderer with 17 felony convictions who stabbed to death with scissors his sister.

When I tried to appeal, I was never to this day, 16 years later, allowed to have my appeal pleadings docketed, never given any appeal review, and they simply closed my case in a non-final status. When I asked the California Supreme Court for reasonable accommodations to file a petition to get an order requiring the appeal to be heard, I was told by the Clerk of Court on instructions of the Chief Justice Ronald M. George that people without arms, quadraplegics, and people with autism/learning disabilities who use speech recognition will not be licensed as attorneys in California.

I fled to Florida, to try to get my bar admission there. My father surreptitiously followed me closeby concealing himself just over the border in Georgia, and continued to prey on my daughter and myself to make sure I never get my bar admission.

I was hit in a car accident by a speeding driver who admitted not looking at the road while she was driving, and a Florida court refused to accommodate my disabilities to enable me to participate in the traffic hearing, used but never let me see a transcript, never let me cross-examine witnesses against me, lost more than 650 pages of my disability documentation showing I had 20/20 vision and a perfect driving record the previous 10 years without even a parking ticket on it -- and diagnosed me without a medical license as being unable to see, i.e. blind.

Having diagnosed and ruled I am blind and that is why I should lose my driver's license, the Florida courts all the way to the Florida Supreme Court held appeal review without providing me any way to complete pleadings knowing they ruled me blind!! If I am ruled blind, how could I even know the charges against me without brail??? No problem, I was convicted of a lesser included civil infraction of a criminal traffic offense I did not commit, which is not allowable as any infraction or offense existing under Florida law -- and upon this non-existent infraction/offense I have lost my driver's license and any independence I could have hoped for now for four years and it is ongoing.

I petitioned the United States Supreme Court, ruled blind, and no one there bothered to ask if I could "see" the pleadings I was ordered to file, and then, on the above facts, my petition was denied certiorari (US SUP. CT Docket No. 05-7287), leaving me now res judicata (all other courts and agencies must accept) that I am ruled with a new disability, I cannot see, i.e., am blind. I have been chastised before for seeing this like Dred Scott, so, not to despair, this new ruling give me new hope -- to be the first blind person in America to pursue a driver's license.

Now, I guess that also makes me eligible for all blind disability benefits of the States and Federal government, and retroactively to the Aug. 11, 2002 period in which I was ruled blind, but how can I explain to them when I apply how I can see with 20/20 vision but I have been ruled by the United States Supreme Court disposition of my case as blind, and all other courts and agencies must accept this diagnosis? Meanwhile, the Florida Department of Highway Safety and Motor Vehicles has no reasonable accommodations on its driver's licensing tests to accommodation people ruled and diagnosed blind!! Even though I can see.

Now I am being denied my Florida bar admission for more than four years, because I cannot access the Florida Board of Bar Examiners web site Florida Bar Application since I use speech recognition device and have simultaneously been ruled diagnosed blind and cannot see. The FBBE's web site application is not provided in brail, nor would I be able to understand the brail to fill the bar application absent brail training now being provided me by the State of Florida. So, again, I am locked out.

When I pursued my cases for my disability rights, while minding my own business, a Vessel surveillance platform was docked adjacent to my husband and I, where we lived on a decrepid sailing vessel (due to no affordable housing in Florida), and was recklessly tied during 2004 Hurricane Jeanne ensured to kill us. And to prey upon a disabled person ruled by the United States Supreme Court's case disposition as blind!! A most despicable act. Why? Because I tried to enforce my disability civil rights?

Even though, upon arresting the imperiled recklessly tied Vessel in admiralty, the Magistrate ruled we have a meritorious six-figure salvage claim, the other side (who can only substantiate ownership of the offending Vessel with unreliable xerox copies), brought forth an admitted perjurer who committed perjury under Oath in Federal Court about his licensing, to conceal the whereabouts of the person who homicidally tied the Vessel. See, Petranos v. The Vessel Mistress, M.D. Fla. 04-cv-2534.

So, to crush disability rights of a person who has 20/20 vision but ruled by the highest Court in the land's case disposition to be diagnosed blind, the perjurer brought forth to conceal the person who tried to kill my husband and I to stop my disability rights lawsuits, has been allowed by the Bush administration's FBI, US Coast Guard, and Federal District Court Judge James D. Whittemore to masquerade with false licensing credentials -- thereby threatening the National ports security in light of the UAE/Dubai crisis.

I just wanted everyone to know that even when a disabled person tries to help themselves to be independent, working, and productive, the only fate the Bush administration and America's courts system intend to allow is their death and destruction.

And I have been ruled and diagnosed blind!! When is Florida getting me my seeing eye dog?
3.7.2006 1:42pm
E (mail):
Someone noted on another forumthat "his private sector job for the past decade was to convince these same 7 Justices to side with him."

Interesting point.
3.7.2006 6:45pm