The New Republic, October 1, 2007
It’s the first Monday in October, the day the Supreme Court begins its term, and I’m supposed to be salivating. For legal writers, after all, this is opening day of a new season. And the justices have some big cases on their schedule: the fate of Guantanamo detainees, the constitutionality of lethal injection, and voter-identification laws. They’re sure to add more in the coming days.
And yet my salivary glands are on strike.
In fact, thinking back on the last term, I can’t help a certain feeling of dread about this coming one. It’s not the decisions with which I expect to disagree–though there are certainly some of those. It’s the sense, rather, that the court has embraced the most childish and cartoonish kind of ideological divisions. It’s the sheer volume of 5-4 decisions we saw last term and should fear again this one, combined with the needless paucity of unanimous opinions.
Most of all, it’s the fact that not a single justice seems to be standing against the trend.
Chief Justice John G. Roberts Jr. has spoken eloquently about the importance of unanimity and the corrosive effect of separate opinion-writing on the court’s institutional capital. For example, in a speech at Georgetown last year, he emphasized that while “division should not be artificially suppressed … the rule of law benefits from a broader agreement. The broader the agreement among the justices, the more likely it is a decision on the narrowest possible grounds.” And a year ago, I was all ears. The first term of the Roberts Court had raised hopes that, perhaps, with new leadership, the court could break through its sterile ideological line-ups more frequently and speak more often as a court, rather than as a collection of individual justices. Last term dealt that dream a severe blow. Some issues–most notably global warming and the execution of the mentally ill–produced wins for liberals. Other issues–abortion, affirmative action, and campaign finance–yielded victories for conservatives. But it’s hard to identify important areas in which the court spoke with a strong voice that rose above the polarized views of its members. The court, rather, performed exactly as believers that it is nothing more than a political institution would have predicted. And it made fools of those of us who believe in it as something more elevated: an institution that aspires to rule based on principle. It was depressing, and the most depressing part is that sinking feeling that the justices will do the same thing again beginning today.
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