In a recent speech in Chicago, Chief Justice John Roberts stated that the Supreme Court functions best “when it can deliver one clear and focused opinion of the Court.” He lauded the importance of judicial “consensus,” arguing that cases should be decided “on narrow grounds” and that differences of opinion among the Justices generally should be expressed secretly in the Court’s private conferences, rather than in published dissenting or concurring opinions.
As one who does not share the very conservative inclinations of the majority of the current Supreme Court, I should heartily endorse the Chief Justice’s call for “narrow” decisions that reflect a “consensus” among the Justices. The more the Court follows the Roberts, the less damage it is likely to do to the fabric of constitutional law. My self-interest as a citizen should cause me to cheer Roberts on.
As student of constitutional law, however, I find his understanding of the role and responsibility of the Supreme Court disturbing. It reflects the same rather simple understanding of our constitutional system as his assertion during his confirmation hearings that Supreme Court Justices are like baseball umpires, whose job it is simply to call the balls and strikes of constitutional law.
Roberts maintains that the Supreme Court should decide cases “narrowly.” That is, the Court should decide each case on the basis of a principle or rule of law that decides no more than is necessary to resolve the particular dispute before it. In general, this is a fine aspiration for lower courts, whose primarily job is to resolve a specific controversy between the parties. But for the Supreme Court, which hears fewer than one hundred cases each year, this would be a serious abdication of responsibility. The Court’s role is not merely to decide the specific dispute between Joe and Mary, but to enunciate principles of law – especially principles of constitutional law – that will provide guidance to police officers, legislators, prosecutors, lower court judges and, of course, citizens about the nature and extent of the rights and duties.
Whenever the Supreme Court decides a case “narrowly,” resolving only the particular dispute before it, it leaves the rest of the society and rest of the legal system in the dark. When the Supreme Court leaves important issues unresolved, everyone else must guess about what they can and cannot do under the law. Lower courts are free to disagree with one other, with the result that the scope of constitutional rights will vary randomly from state to state and district to district throughout the nation. Unnecessary uncertainty is not a healthy state of affairs when it comes to the freedom of speech, the freedom of religion, or the right of the people to be secure against unreasonable searches and seizures. It may be easier for the Court to decide cases “narrowly,” but it creates chaos for everyone else in the system.
Similarly, Chief Justice Roberts wants to promote more unanimous opinions, burying disagreements among the Justices. This, too, is bad policy. The legitimacy of the judicial branch rests largely on the responsibility of judges to explain and justify their decisions in opinions that can be publicly read, analyzed, and criticized. Consensus opinions designed to hide real disagreements among the Justices fail abdicate that responsibility. The price of achieving consensus is inevitably to eliminate from the Court’s opinion anything that one or more of the Justices disagrees with. The result is opinions that say little of substance, mask the critical steps in the Court’s reasoning, and persuade no one of the wisdom of the decision or the quality of the reasoning. To make the point dramatically, the quintessential consensus opinion that decides a case narrowly would read: “We reverse.”
It is surely true that a proliferation of separate concurring and dissenting opinions can be annoying, confusing, and divisive. But such opinions often play a central role in the evolution of the law. By making public the disagreements within the Court, such separate opinions foster a vigorous discourse about the merits of the competing positions and energize robust debate about the different ways to resolve constitutional questions. This ongoing, public deliberation ultimately strengthens the Supreme Court’s work product and contributes to public understanding. To squelch such separate opinions in order to achieve the appearance of consensus would both degrade the quality of the Court’s work and undermine the public’s and the legal profession’s ability to evaluate the seriousness and persuasiveness of the Court’s reasoning. In the long run, it would undermine the Court itself.
It is also important to note that some of the most influential opinions in the history of the Supreme Court were concurring and dissenting opinions. Although they did not command the support a majority of the Justices at the time, the eventually won the day because of the force of their reasoning. Familiar examples, to name just a few, include Justice Harlan’s famous dissenting opinion in Plessy v. Ferguson, the pivotal dissenting and concurring opinions of Justices Holmes and Brandeis in a series of free speech decisions following World War I, and Justice Robert Jackson’s landmark concurring opinion in the Steel Seizure case. By opening the disagreements within the Court to the light of public scrutiny, these opinions exemplify the tradition that despite the principle of precedent, the work of the Supreme Court is always a work in progress that must be open to public scrutiny if it is to retain its legitimacy.
I do not mean to suggest, by the way, that there cannot be too much of a good thing. The Court has many responsibilities, and one of them is to produce majority opinions that state a rule of law. Certainly, if the Justices fell into the habit of issuing nine separate opinions in every case, that would create another form of chaos. Similarly, I do not mean to suggest that “narrow” decisions are necessarily a bad thing. If the Court is unsure of its ground and wants to preserve issues for another day, it should certainly exercise its prerogative to decide a case narrowly. But in the long run, the Supreme Court will better fulfill its most fundamental responsibility – to protect individual liberties and the rights of minorities against the intolerance, indifference, and self-interest of political majorities – if it is willing and able to act boldly, decisively, and confidently in the defense of those values. The greatest danger is not that the Court will act boldly, but that it will act boldly in defense of the wrong values.