In Defense of a Divided Court

When the U.S. Supreme Court scolded the Bush Administration last year for attempting to try suspected enemy combatants on the cheap, the ruling rested largely on one of the court's most honored precedents. It's the same opinion that helped force Richard Nixon to cough up those embarrassing tapes in 1974. And for more than 50 years it has guided the court in deciding whether a President has acted within his powers or whether he has stepped over the line.

The interesting thing is, it's not a majority opinion. It's a concurrence, a separate statement that a lone Justice, Robert Jackson, cooked up to accompany the court decision striking down Harry Truman's plan for taking over the steel mills in 1952. But its elegant reasoning long ago made it the go-to opinion when the court puts a President in his place.

The Jackson concurrence comes to mind because in several speeches and interviews since early last year, Chief Justice John Roberts has been pursuing a push for unanimity on the court. He wants the Justices to speak with one voice as much as possible, to decide cases 9 to 0, with no pesky dissents or concurrences. As he advised a crowd two weeks ago at Northwestern University School of Law, "The court functions most effectively as a judicial institution saying what the law is when it can deliver one clear and focused opinion of the court."

You figure that, coming from the cerebral Roberts, the argument probably makes sense. The court, after all, wisely achieved unanimity in Brown v. Board of Education, the landmark school-desegregation decision that left no doubt about what the law should be. By contrast, the splintered ruling in Bush v. Gore suggested that partisanship rather than the law guided the court's resolution of the 2000 presidential election.

But the price of unanimity is the loss of concurrence and dissent, the expression of views that can strengthen the law by showing us how it came to be, where it should develop and why the most important rulings are never easy. Sometimes the doubters are right, and if their voices disappear, so might the prospect of not-yet-recognized freedoms or protections for many Americans.

For instance--to sound self-absorbed--take journalists. They haven't fared well recently with the courts, but for decades reporters shielded their sources by citing a famous concurrence from Justice Lewis Powell. In 1972, Powell joined the court's majority in denying journalists an exemption from testifying before a grand jury. But in a separate opinion, he offered an alternative--a test balancing press freedom against the obligation to testify--that many courts used to keep reporters off the witness stand. The opinion no doubt encouraged sources to speak and so allowed us all to become better informed.

Court dissenters have also been crucial to the civil rights of African Americans. In 1896 the Supreme Court ruled that keeping blacks and whites separate but equal was just fine. Only Justice John Harlan found fault with that state of affairs, writing as the lone dissenter in Plessy v. Ferguson that "Our Constitution is color-blind, and neither knows nor tolerates classes among citizens." It would take more than a half-century, but the wisdom of his words finally persuaded the court to acknowledge in Brown that "'separate but equal' has no place" in public education.