Major Renovations at the Supreme Court or Just a New Coat of Paint? What Recent Unanimity Means for the Future

There's a lot of buzz about "unanimity" following the Supreme Court's most recent term. The justices issued more 9-0 opinions this go-around than they have since World War II.

So I asked court practitioners what this new sense of harmony means for the direction of the court.

Some said it stems from the chief justice's desire to wrench the court out of the limelight and fashion a bench that appears less politically motivated.

But others said it's just a façade that masks sharp ideological divide and is a harbinger of more divisiveness to come.

Narrow majority opinions and "concurring" opinions painted with reproach evidence a shaky consensus that's likely to break at the foundations, those practitioners say.

But only time will tell what kind of foundation Roberts has managed to build: one made of consensus or one that gives way, leaving the court perched on more conservative bedrock.

Here's what some of the people I talked to had to say:

  • We will continue to see ideological division play against Roberts's desire to forge consensus, suggested Noel Francisco, Jones Day.
  • Roberts, Breyer and Kagan are reaching for a middle ground, said Adam Winkler, UCLA.
  • There's an emerging split between Scalia/Thomas/Alito and Roberts/Kennedy, noted Andrew Pincus, Mayer Brown.
  • Resulting narrow opinions means "open season" for further litigation, said Robin Conrad, McKenna Long & Aldridge.
  • Weak precedent may live to see another day, but survival could just be a "way station" on the path to greater change, added John Elwood, Vinson & Elkins.

You can read more about what these and other Supreme Court watchers had to say about the term in my full "Term in Review" story: Roberts Bridges Court's Ideological Divde, But Shaky Consensus Reveals Depth of Split. (subscription material)

I also polled those I talked to about what they considered the "Top Cases" of the term, with Hobby Lobby and Noel Canning fetching the most votes.

Supreme Court Scorecard 2013-2014 PDF

Supreme Court Scorecard 2013-2014