In Defense of a Divided Court

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Or consider Japanese Americans during World War II. In 1944 a majority of Justices upheld the conviction of Fred Korematsu for resisting internment in a "relocation center." That prompted Justice Frank Murphy to write in dissent that the policy of relocating or incarcerating ethnic Japanese occupied "the ugly abyss of racism." His opinion helped lead a federal court to vacate that conviction 40 years later.

All of us can speak more freely, get counsel in a criminal case and keep the police out of our bedrooms because, at some point, maverick Justices stood up to a court majority. Roberts surely knows this, yet he barrels ahead with a campaign for unanimity that is already showing results. Over the past two terms, the number of majority opinions rose from 79 to 81, but the number of dissents dropped from 63 to 60, and concurrences from 61 to 35.

What's troubling is just how Roberts often gets to 9 to 0: by pushing for decisions on grounds narrow enough for each Justice to accept. That makes for some pretty thin rulings, like a 2005 nondecision on whether a New Hampshire law limiting abortions for minors could survive without an exception for the mother's health. All that the Justices could agree to do unanimously was dump the case back on the lower court.

This is not helpful. Fortunately, with the term's most contentious issues--like abortion, affirmative action and global warming--still ahead, the unanimity push may not get much further. As the new guy last term, Roberts could count on his colleagues to get along by going along. This spring should be different. As University of Chicago law professor Geoffrey Stone says, "In the end, the Justices are free agents." Maybe they will agree on the easy cases, but even that's doubtful. If the cases were truly easy, they wouldn't have reached the Supreme Court.