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Clarity vs. Unanimity in Supreme Court Decisions:

In this Slate column, Pepperdine law professor Doug Kmiec decries two recent 5-4 Supreme Court decisions because they undermine Chief Justice Roberts' effort to promote unanimity on the Court, which in turn makes Supreme Court decisions less clear. As Kmiec puts it, "[w]hen the justices work out their disagreements before they write opinions, unanimity has the potential to supply what practicing lawyers (and their clients) most often need—a clear rule."

My view is exactly the opposite: other things equal, the effort to achieve unanimity on the Court actually reduces the likelihood of decisions that establish clear rules. A unanimous decision requires the consent of nine different justices, people who in this day and age have widely differing ideologies and jurisprudential philosophies. An opnion that can command such a broad consensus is likely to require compromise between the preferences of conservative and liberal justices, originalists and living constitutionalists, and so on. Thus, any rule that is agreed to unanimously is likely to be riddled with exceptions, balancing tests, and other compromises that had to be included in order to win the support of all nine justices. This is especially likely to be true if the issue being decided is an important and controversial one that the justices disagree on.

Many of the complex balancing tests and complicated exceptions to rules that legal commentators like to make fun of in Supreme Court opinions are the result of the need to "count to five" - corral the five votes needed to create a binding Supreme Court decisons. Counting to nine is usually likely to require more compromise - and thus more complicated balancing tests and exceptions - than counting to five.

There may be other good reasons to value unanimity in Supreme Court decisions. For example, a unanimous decision that has the support of justices across the political spectrum is probably less likely to be wrong than a 5-4 decision that may have been reached on narrow ideological grounds. But, to the extent that we value clarity in legal doctrine, the quest for unanimity on the Court is likely to do more harm than good.

RBG (mail):
I've heard (and read) many people (including quite a few academic types) take either Kmeic's or Somin's position on this issue, and while both sides proffer plausible explanations for why their position makes more sense, this type of speculation accomplishes absolutely nothing--at least for casual observers like me, who remain no more enlightened than we were before. It seems to me that this debate might fairly easily be resolved by some skilled quantitative analysis, no? I--unfortunately like most lawyers and legal academics--lack the tools to do this, but it seems that somebody like Levitt, of Freakonomics fame, could develop a model for testing both hypotheses. One would, of course, have to control for variables, including the greater likelihood of unanimous decisions where the rule is clear ex ante, and so on, but in principle, it should be fairly straightforward to determine which side has the better argument. If I'm correct in this, the best that can be said of both Somin's post and Kmeic's essay is that they help clarify the hypothesis to be tested.

Nothing personal, of course, Ilya. It's an interesting question, and this is simply a blog post. But it does seem to me that this way of approaching such questions is an annoying feature of a good deal of legal scholarship. In other words, when the question is so plainly an empirical one, I just can't see where this type of theorizing gets us--beyond, as noted above, simply formulating or refining the hypothesis. Only when we have analyzed the empirical evidence would things get really interesting, as we could start arguing about which theory of judicial decisionmaking best explained the evidence.
2.23.2007 1:52am
Ilya Somin:
I entirely agree that empirical testing is desirable; in fact, I have written a number of articles that use statistical data to test hypotheses of various types. In this case, however, it would be difficult to do it, given the difficulty of establishing a definition of clarity consistent and (yes) clear enough to apply to a large data base of cases. It would also be difficult to create all the control variables.

In the meantime, however, there is still a difference between my theory and Kmiec's: I present a causal mechanism by which unanimity makes clarity less likely. By contrast, neither Kmiec nor (as a far as I know) anyone else has presented any reason to believe that unanimity will increase the clarity of legal rules.
2.23.2007 2:06am
Justice Stevens (mail):
Unanimity increases the stability and the apparent legitimacy of rules. To get to unanimity, a ruling's basis must be so narrow and universal that its articulation is necessarily simple and comprehensible, at least within the community of lawyers. How can a simply and comprehensibly articulated rule that is unchanging and respected be unclear?
2.23.2007 5:30am
Ilya Somin:
To get to unanimity, a ruling's basis must be so narrow and universal that its articulation is necessarily simple and comprehensible, at least within the community of lawyers.

Making a rule extremely narrow is itself a source of unclarity, because it's not clear how it will be applied in other cases that are only slightly different from the present case. Moreover, it's hard for a ruling's basis to be both narrow AND universal at the same time. Morrow, it's unlikely that nine justices with very different ideologies can agree on a rule that is both narrow AND clear, especially in a case addressing ideologically controversial issues.
2.23.2007 5:43am
volokh watcher (mail):
Roe v. Wade was 7-2 and set a fairly bright-line rule that has been in flux ever since.

Miranda v. Arizona was 5-4. No rule is clearer (given it stars in every cop show), but it has more exceptions than the 4th Amendment.

Plessy v. Ferguson was 7-1. Talk about clear rules.

Bright-line rules are fine. Well written statutes are fine.

The problem as I see it is opinions and statutes can only set standards that go so far (and sometimes the wrong way). But not every contingency can be accounted for.

Hence, 9-0 rules are no better than 5-4 rules. Either way, every case will turn on its facts.
2.23.2007 6:32am
msmith (mail):
...It might have been supposed that advocates of judicial restraint—er, umpires hoping not to be noticed during a ballgame—would be uncomfortable signing onto this judicially inventive enterprise, no matter how good an idea punitive damage limits are as a matter of policy....

Would have thought we are at least a couple decades or three from anyone believing there are real advocates of judicial restraint on the Court, or that the appointment of so-called conservative judges would lead to that judicial nirvana. Conservatives, and conservative judges, value judicial restraint exactly to the extent it doesn't interfere with their particular agenda in any given opinion. Judicial restraint if necessary, not necessarily judicial restraint.

Don't even think most of the general public is fooled by those conservative pleas for judicial restraint anymore, odd a professor of law would put any stock in the notion.

And the empirical evidence that limits on punitive damages
is a "good idea", or necessary, lies where? Right, another popular conservative bogeyman and assertion stated as fact. Anyway, saw Justice Roberts cheerfully admit months ago the "honeymoon is over", if that means more split decisions not at all clear that is a bad thing for clarity. Whether good or bad or indifferent, as long as Court appointments are seen by some as political draft day, our "team" has this next pick, don't think most of the public is fooled by any of it. Kind of remarkable the Court still enjoys the authority and respect it does, perhaps because most of the public studiously avoids caring much about the goings-on there. Rare exceptions like Bush v. Gore aside, speaking of conservative judicial restraint. Another good idea, in theory.
2.23.2007 6:53am
Justice Stevens (mail):
Moreover, it's hard for a ruling's basis to be both narrow AND universal at the same time.

No, I disagree. It just has to be more trivial than meaningful.

Making a rule extremely narrow is itself a source of unclarity, because it's not clear how it will be applied in other cases that are only slightly different from the present case.

I disagree here, too. It is clear how it will be applied, because narrow opinions are often written by including counterfactuals or hypotheticals in which the rule is declared not to apply. That is the price of brokering agreement.

Morrow, it's unlikely that nine justices with very different ideologies can agree on a rule that is both narrow AND clear, especially in a case addressing ideologically controversial issues.

Well, no. They agree to the uncontroversial stuff and agree to table the controversial stuff, which is left undecided.
2.23.2007 7:22am
Steve:
This post would be accurate if the Supreme Court reached an issue once and promised never to go there again.

But since that's not the case, a 5-4 decision can announce the brightest line in the world, but there's always going to be opportunities for future litigants to push for exceptions.

A 9-0 decision, on the other hand, might announce nothing more than a fact-driven balancing test, but you know the Court isn't likely to revisit the issue again, which counts for something.
2.23.2007 7:58am
magoo (mail):
"By contrast, neither Kmiec nor (as a far as I know) anyone else has presented any reason to believe that unanimity will increase the clarity of legal rules."

Perhaps when Kmiec says unanimity increases clarity in the law, he means stability. At the risk of saying the obvious, with a 5-4 ruling, instability (and thus lack of clarity) is introduced when a member of the majority dies or retires. Not so with a unanimous ruling. Also, if 9-0 opinions are the norm, 4-1-4 rulings might become less likely, which would increase both clarity and stability (compare the Marshall court with the Rehnquist court). If 5-4 rulings are tolerated or encouraged, it might increase the risk of 4-1-4 rulings, which reduce clarity.
2.23.2007 8:51am
Brian Church (mail):
I wouldn't be surprised if 9-0 decisions were more clear than 5-4 decisions as a matter of fact, simply because many of them may be relatively straightforward, "easy" cases (although I don't know how one would quantify something like this). Is it possible that Prof. Kmiec is confusing this correlation with causation in advocating more 9-0 decisions?
2.23.2007 8:56am
Anderson (mail):
The irony of course is that in the new punitives case, we got a 5-4 decision with a "rule" just as vague and impractical as we might've expected from a 9-0 decision.

That said, I agree more with Somin than Kmiec on this issue. "Unanimity" per se is only "desirable" in the sense that sunny days are desirable ... sometimes, there are good reasons why it's not going to happen, and no grownup should get upset purely b/c a decision's not unanimous.
2.23.2007 9:25am
anonVCfan:
I think it's silly to discuss Roberts's quest for unanimity in the context of some of this week's opinions.

As I understand Roberts, he thinks that the court can achieve unanimity through narrow decisions--i.e. by focusing on what is necessary to decide the case. His point is that the least common denominator of agreement among all 9 justices is often a sufficient basis for a decision. Obviously, this isn't always the case.

In the Marrama case, for example, there was a very narrow question at issue with 2 viable answers, and not all 9 agreed.

This isn't a failure of Roberts, or even a limitation on his approach. I don't he's out to get as many 9-0 opinions as possible. Rather, he's out to avoid opinions like Vieth v. Jubelirer and Seminole Tribe, where the court unnecessarily writes several competing law review articles on an issue. Thus far, the court has done that, and where the opinions have split 5-4, the disagreement is at least focused around a narrow issue (admittedly more so in Marrama than Phillip Morris)
2.23.2007 9:49am
Loki13 (mail):
I think there are two issues here which are treated interchangably by some but need to be teased out:

1. The closer to unanimity (7-2, 8-1, 9-0) the court comes, the 'stronger' the decision in that it signals to the judicial system that the ruling is meant to be taken very, very seriously. But, in a controversial case, the ruling will most likely have to a narrow one which limits its applicability.

2. While the 5-4 case is also taken very, very seriously (it is just as good as law), it also sends the signal (because of the fractured court) that, well, if you can just frame the issue correctly you can 'revisit' (code for distinguish) the case.

So what is the preference- a stable, narrow body of law, or a less stable, less narrow body of law? Then there is also the question of stare decisis. If the justices give a great deal of credence to s.d., and are willing to hold to it as a core value, then the second option is more tenable because they will continue to uphold previous decisions that they may not agree with.

Example- the Rehnquist court was trying to form a coherent body of Federalism jurisprudence, both in 10th Am. and Commerce Clause areas. Unfortunately (IMHO) their commerce clause jurisprudence is a little jumbled. If you took the 5-4 decision in Lopez, you have some good rules. Then you apply those rules to Raich. Because the Lopez minority peeled some defectors away, they were able to craft a ruling contradictory to the rules of Lopez (while using it as an authority!). The problem, here, with using 5-4 decisions to advance jurisprdence in a specific area is that when you're unable to muster the 5 for a specific case, you can end up with cases that send inconsistent signals to the lower courts.

What I personally believe is that clear majorities (at least 6 justices) are a good thing. I also believe the proliferation of concurrences is a bad thing, and I hope that Roberts can rein that in. I do not know that he'll succeed- Justices have an ego, and everyone wants to get in the 2 cents. Look at this blog, for example!
2.23.2007 10:44am
frankcross (mail):
I would say the logic strongly favors Ilya here. Opinions generally have to be watered down to get unanimity. However, I think the big effect is in the significance of decisions. You're generally not going to get unanimity or anything close to it for a controversial new decision like Roe, or Lopez for that matter. A forthcoming article by Staudt, Friedman &Epstein presents some empirical support for this.

People have been suggesting for a while that there should be some supermajority rules at the Court, requiring 6 or 7 votes to declare a statute unconstitutional, etc.

Empirical testing could be done. While it's difficult to capture clarity, there are indirect measures. A clear decision could reduce future litigation in the area, or reduce the ideological role of judging in future cases, or maybe get less negative treatment in future opinions.
2.23.2007 10:54am
Lev:

Counting to nine is usually likely to require more compromise - and thus more complicated balancing tests and exceptions - than counting to five.


I don't see why that is "likely" the case. It seems to me it is extremely likely that the 5-4 decisions are going to have the most complex and complicated and tortured balancing tests and exception because the egomaniac geezers are trying to maintain their 5 or to increase their 4 to a 5.

It seems to me that rather than getting more complicated in reaching a 9-0, it is more likely one would get less complicated tests, because only the important things, the irreducible essence of the case, seen with maximum clarity - insofar as the egodriven geezers can see - will be the subject of the decision.

That is not to say that in the 9-0 followup cases there might not be exceptions, but the rule would be clear and the exceptions focused. Vis-a-vis Miranda, the totality may be confused and barely understandable, but the individual original case and the individual followup exception cases are not.
2.23.2007 1:45pm
Ramza:
You have to remember Roberts is a minimalist, he tactics on how to approach a problem has three major points:

1) He approaches a case on the most narrow grounds possible, thus not bringing up things that may create new precedents or disturb past ones.
2) He likes to get a lot of conformity and unanimous or near unanimous decisions. This reinforces number 1
3) Finally he doesn't want to tread on anybodies toes if he can. Thus he defers to legislative, the executive, he tries not to establish new precedent, he tries not to overturn old precedent, he tries not to create new civil rights.

Of course 3 is eventually contradictory, you can't be all things all the time, eventually you are going to have to side with a certain group on a certain issue.

Because of all three points Roberts is two things, first he is a pragmatist willing to get his hands dirty and deviate from his legal philosophy (for his legal philosophy is above all keeping things minimal) to get what he wants. Second he is an incrementalist, lots of small cases making small changes in the law and how people view the law. Eventually over the long haul this will cause a dramatic change of how we view things, but from the immediate now barely anything appears to change.

Of course I can be completely wrong with this, many people are fools when they try to read the tea leaves.
2.23.2007 2:17pm
Ramza:

Unanimity increases the stability and the apparent legitimacy of rules. To get to unanimity, a ruling's basis must be so narrow and universal that its articulation is necessarily simple and comprehensible, at least within the community of lawyers. How can a simply and comprehensibly articulated rule that is unchanging and respected be unclear?
It is very clear with those set of facts, in that situation the obvious choice is X. But with a new set of facts what would be the answer? If the test requires a lot of balance mechanisms with arbitrary weights and sides you have to re-balance the equation every time a situation comes up. Thus you actually cause more litigation and more court cases.
2.23.2007 2:21pm
Mark P. (mail):
To add a historical question/perspective: The CJ's who have most vociferously advocated unanimity on the Court, prior to Roberts, were John Marshall and Charles Evans Hughes. Each reigned over a Court with the perspective of a political philosophy that had been eclipsed politically (in the case of Marshall, the Federalists had been overtaken by the Jeffersonian, and then Jacksonian, Democrats; in the case of C.E. Hughes, the Lochner-esque Republicans (and many Democrats) were being overtaken by the Progressives). Is C.J. Roberts' outspoken advocacy for unanimity a sign that Federalist Society influence on our jurisprudence is now being eclipsed, or is this a different dynamic?
2.23.2007 2:26pm
Steve:
The irony of course is that in the new punitives case, we got a 5-4 decision with a "rule" just as vague and impractical as we might've expected from a 9-0 decision.

Well, actually, the "rule" was pretty simple: no punitives to compensate for harm to nonparties, period. But the more you understand the decision, the less clear the rule becomes, until you realize it means virtually nothing other than that the Court thought this particular award was too high but didn't want to say so.
2.23.2007 2:35pm
Toby:
Some of this strikes me as backward. If a case is so clear and so obvious as to be a 9-0 case, how in the world did it ever make it to the supreme court. It strikes me that a 9-0 case may well be a symptom of overreaching to make law...
2.23.2007 2:55pm
David M. Nieporent (www):
Some of this strikes me as backward. If a case is so clear and so obvious as to be a 9-0 case, how in the world did it ever make it to the supreme court. It strikes me that a 9-0 case may well be a symptom of overreaching to make law...
Two words: Ninth Circuit. (Or perhaps "Two words: Judge Reinhardt" would be more appropriate.)
2.23.2007 3:07pm
AK - Cleveland (mail):
I think you're exactly right. Compromises are for Congress, and it's their compromised language that causes the problems that the Court hears.
2.23.2007 3:30pm
Loki13 (mail):

Some of this strikes me as backward. If a case is so clear and so obvious as to be a 9-0 case, how in the world did it ever make it to the supreme court. It strikes me that a 9-0 case may well be a symptom of overreaching to make law...


Two words: Fifth Circuit. (Or perhaps the judges on the 5th fell asleep when the SCt is handing out their death penalty jurisprudence... which would be a similarity they share with counsel they appoint in those cases)
2.23.2007 3:30pm
Justice Stevens (mail):

It is very clear with those set of facts, in that situation the obvious choice is X. But with a new set of facts what would be the answer? If the test requires a lot of balance mechanisms with arbitrary weights and sides you have to re-balance the equation every time a situation comes up. Thus you actually cause more litigation and more court cases.



I actually anticipated this and answered it above when I wrote: It is clear how it will be applied, because narrow opinions are often written by including counterfactuals or hypotheticals in which the rule is declared not to apply. That is the price of brokering agreement.
2.23.2007 7:51pm
Duffy Pratt (mail):
There's too much emphasis on court's announcing "rules." That's not the function of a court. The system of precedent is different than the legislative program of rule announcement.

We would be much better off if the Court reverted to the old way and each justice wrote an opinion in every case, and the Court published the opinions together with a judgment.

Take a look at the 9-0 opinions of the court. They tend to be pretty sloppy, and often botch details or fail to see wrinkles, precisely because no-one on the court is really testing the opinion.
2.23.2007 10:52pm
Toby:
David M. Nieporent and Loki.

Agreed. Two circumstances that Prove (as in test) the rule
2.25.2007 1:25pm