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POLITICS: PennAve

Supreme Court not as unified as it looks

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Politics,Congress,Supreme Court,PennAve,Sean Lengell,Law,Samuel Alito,Antonin Scalia,John Roberts,Magazine

The Supreme Court ended its 2013-14 term with the most unanimous rulings and fewest split decisions in decades, suggesting at first glance an easing of the sharp and often bitter ideological divisions between the justices in recent years.

But such an assumption is risky and probably wrong, legal experts say.

“Don’t be misled by the apparent unanimity in the results when there are very significant differences in the means by which the different justices got to those results,” said George Washington Law School associate dean Alan Morrison. “It’s almost an asterisk."

Depending on how the docket is counted, as some cases are argued and ruled on collectively, the nine justices handed down about a dozen 5-4 decisions — about half of last year's total — and 37 unanimous decisions out of about 75 cases.

But in several of the unanimous decisions, the lopsided votes masked the divergent reasoning of the justices in reaching the same result. In many of those cases, the justices, while agreeing with the overall verdict, had significant concerns about specific aspects of the ruling.

Such differences often matter more than the margin of the vote, as the different paths justices take to reach their decisions can be treated as legal precedents by lower courts.

"Some of those unanimous decisions aren’t really unanimous decisions," said Stephen Wermiel, a constitutional law professor at American University.

In a 9-0 ruling that struck down a 35-foot protest-free zone outside abortion clinics in Massachusetts, two “concurring” opinions by conservative justices pushed back at the majority opinion. In one, Justice Antonin Scalia -- while agreeing with his eight colleagues that the state law imposing the buffer zone was unconstitutional -- complained that the court had failed to address what he said was an ongoing trend of state laws unfairly targeting anti-abortion activists.

The “opinion carries forward this court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents,” Scalia wrote.

The disagreement means the four liberal justices likely would be more inclined than their conservative counterparts to issue court orders creating buffer zones around specific clinics, Wermiel said.

“The interpretation [of the ruling] is more like a 5-4 decision, except as to the very narrow bottom line that you probably can’t use a wholesale approach through a state law to deal with this problem,” he said.

In another 9-0 ruling the same day, the court placed limits on the president's power to fill high-level administration posts during congressional breaks. The majority opinion defined the scope and timeframe of the breaks. But a concurring opinion by the bench's four most conservative-leaning members said the "recess appointment" authority, a practice established in the nation's early years when travel difficulties meant Congress was recessed for long periods, was an "anachronism" that should be abolished.

“I’m not sure I can remember, and I’ve been watching the court for a long time, so many cases in which the concurrences really were effectively dissents, except that they agreed on some narrow basis that the result was in most cases to reverse” a lower court, Morrison said.

Still, several unanimous rulings on lower-profile cases were reached without much contention, largely because they weren’t deeply political or ideological in nature, such as patent infringement and trademark dispute cases. In one such case, the justices allowed a lawsuit to continue between two rival juice makers over the labeling of the word "pomegranate."

Chief Justice John Roberts also in recent years has urged his court to work harder to find consensus, which may be contributing to the large number of 9-0 cases that lack true unanimity.

“Some of this may be, ‘if there’s a bottom line that we can all agree on, even if we’re getting there by different road, let’s do it,’” Wermiel said. “Then you can express what your differences are with the majority.”

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Author:

Sean Lengell

Congressional Correspondent
The Washington Examiner

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