Balkinization  

Monday, January 15, 2007

John Roberts and an "Institutionalist" Court

Sandy Levinson

I will celebrate Martin Luther King Day by taking the day off from Bush-bashing (not that he doesn't deserve it, of course). Instead, I will devote this posting to a remarkable interview, published under the title "Roberts's Rules," in the current Atlantic Monthly. Although written by Jeff Rosen, a friend whom I much admire, the article is best described as a relatively unfiltered channelling of Roberts's views. This may simply be a way of saying that I see no good reason to be so admiring of Roberts as Jeff seemingly is. Perhaps this is because I've never met the man and thus have not been subjected to what most people who have proclaim is a very charming personality. I find Roberts's views in many ways perplexing, for reasons I will spell out.

It is clear that Roberts, like Rosen, is a great admirer of John Marshall. What he most admires is Marshall's ability to suppress the expression of independent thinking, also known as concurrences or dissents. "If the Court in Marshall's era had issued decisions in important cases the way this Court has over the past thirty years [i.e., where there have been lots of concurrences and dissents], we would not have a Supreme Court today of the sort that we have. This suggests that what the Court's been doing over the past thirty years has been eroding, to some extent, the capital that Marshall built up. I think the Court is also ripe for a similar refocus on functioning as an institution, because if it doesn't it's going to lose its credibilty and legitimacy as an institution."

As a sometime political scientist, I'd be curious to know on what Roberts is basing his theory of "credibility and legitimacy." Most studies seem to suggest that the public responds fairly directly to those very few Supreme Court decisions they know anything about on the basis of whether they agree with the result. The systematic unanimity of the Supreme Court following Brown seems to have had no affect, for example, on segregationist willingness to accept even the smidgen of desegregation (one cannot possibly call it "integration") in, say, Little Rock. But it's hard to escape the common-sense view that, overall, unanimous decisions are probably better than split ones from the perspective of the Court's appearing a "court of law" instead of "a court of men and women with quite different views on what the Constitution means.

Rosen writes, "In particular, Roberts declared, he would make it his priorty, as Marshall did, to discourage his colleagues from issuing separate opinions." Thus, said Roberts, "I think that every justice should be worried about the Court acting as a Court and functioning as a Court, and they should all be worried, when they're writing separately, about the effect on the Court as institution." Again, as a political scientist and student of Robert McCloskey, I am quite happy with the veiw that judges, as a descriptive matter, are concerned with protecting the institutional interest of the Court. But note well, this protection may come at the price of what can be described as the intellectual integrity of the given justices who are being discouraged to suppress their "Herculean view" (to use Dworkin's terminology) as to what the law "really" requires in favor of submitting to (the Chief Justice's?) view of what best serves the Court's institutional interest.

It's an interesting exercise to try to figure out how this institutionalist view accords with his "umpire view" that he so notably tried to sell to the Senate Judiciary Committee at his confirmation hearings. Umpires, presumably, are not supposed to be instrumentalists, concerned with the consequences of a given call for a given game, a pennant race, or even the overall "good of preserving the good repute of umpires," unless that is simply another way of saying that good repute means undeviating fidelity to honesty. But Roberts here is defending a quite instrumentalist conception of the judge that requires at least some deviation from unflinching devotion to "calling them as you see them, which also happens to be as you think they are." It begins by suggesting that it is perfectly proper for a judge, who after all has taken an oath of office to defend the Constitution--and not "the institutional interests of the Supreme Court"--to sign opinions that he/she doesn't agree with. It is obviously the case that many judges, including those we regard as "great," have done so; it is indeed required by the very idea of a court that has repudiated seriatim opinions, one of Marshall's most important achievements. But isn't there also something a bit dicey about the notion, at least for those who take "legal fidelity" with utmost seriousness? At the very least, wouldn't it have been desirable for Roberts, at the hearings, to complement his "umpire view" with his institutionalist view and address some possible tensions between them?

Rosen invites us to envision Roberts trying to encourage Scalia and Thomas to shut up, especially where they agree with the majority outcome but not its rationale. I would love to sit in on that ocnversation. But he would presumably be even more inclined to hope that they would shut up when they are in dissent (except, perhaps, when he would be joining them). But such submission would have deprived us, among other things, both of Scalia's genuinely eloquent dissent in Hamdi (which I agreed with) and Thomas's equally important dissent in the same case (that appalled me, but, as I have discovered when teaching it, sets out the underlying issues with tremendous clarity that has convinced a lot of students). Would the country really have been better off with such suppressions, in favor of the mush written by the O'Connor plurality in that case?

"Roberts praised," writes Rosen, "justices who were willing to put the good of the Court over their own ideological agendas." But is this the way that the justices themselves describe themselves? I.e., how many of them, beginning with Roberts, have been willing to testify under oath, or, for that matter, elsewhere, that they have "ideological agendas"? Political scientists may believe that they indeed do, but I dare say that most justices, quite probably sincerely, describe themselves as being motivated by a duty to be faithful to the Constitution. Antonin Scalia sees a different Constitution than does John Paul Stevens, but that simply says that the Constitution is capable of being interpreted in different ways, not that Scalia (or Stevens) has an "ideological agenda" that the other does not. Then Roberts is quoted as saying, "A justice is not like a law professor, who might say, 'This is my theory . . . and this is what I'm going to be faithful to and consistent with,' and in twenty years will look back and say, 'I had a consistent theory of the First Amendment as applied to a particular area.'" Instead, "it would be good to have a commitment on the part of the Court to acting as a Court rather than being more concerned about the consistency and coherency of an individual judicial record."

So on what basis would Roberts have judtges in conference cast theiry votes? It's apparently not in terms of a "theory." One gathers that Roberts is a fan of Emerson and is rather cavalier about consistency. Judges are not law professors, after all. I'm happy to accept the notion that justices are indeed not law professors, but, then, what exactly does constitute the difference between a Justice and a legislator if not some believed commitment to the Constitution? Do we have any real idea what Roberts believes the Constitution to be beyond preserving the institutional power of the Court?

He suggested at his confirmation that he's a fan of precedent and narrow decisionmaking. But how does this fit with the early predictions by such experienced court-watchers as Linda Greenhouse and Joan Biskupic following the oral argument in the Seattle and Louisville cases, that Roberts (and Alito, let's not forget him) are raring to overturn decades of precedent and adopt, for the first time, a hard-core "colorblind" notion of the Fourteenth Amendment, at least where race is concerned?

Incidentally, would a "restrained" and "minimalist" Court have taken those cases in the first place? There was, after all, no conflict in the circuits, and it apparnetly took no fewer than seven conference sessions before the Court granted cert. Does anyone seriously believe that it was the "moderate four" who were raring to hear those cases? Was Roberts such a weak new CJ that he couldn't persuade even one of his conservative colleagues to wait? Or did he in fact support the grant, and will he in fact write a 5-4 opinion that will turn American public education upside down and lead to far more racial segregation even than now exists? (And, of course, will he vote, also in -4 decisions, to get rid of racial preferences not only at elite law schools, but also, and far more seriously, at the various US military academies?)

Roberts also indicated that he is unhappy with charts, as in the New York Times, Atlantic, and Harvard Law Review, among others, indicating judicial pairings and blocs. 'It is such an egotistical analysis of the Court.... I think it's bad, long-term, if people identify the rule of law with how individual justices vote." Well, there's a good institutionalist response to this problem: Follow the practice of the European Court of Justice and simply forbid any concurrences and dissents at all. The Irish Supreme Court follows a similar practice, as does, I believe, the Greek Constitutionial Court. Or, somewhat more moderately, simply issue all majority opinions as per curia, in the name of the institutional Court, so that we no longer identify a particular opinion as written by Chief Justice Roberts or anybody else. We could even have "anonymous" concurrences and dissents. So, if my call for a new constitutional convention is ever heeded and if Chief Justice Roberts is called upon to offer suggestions, what's wrong with these? As a matter of fact, I think there's a lot wrong, but I'd be interested in knowing whether Roberts agrees.

Roberts has apparently been reading some business motivation books, for he talks about the importance of "team dynamic." "You do have to [help people] appreciate, from their own point of view, having the Court acquire more legitimacy, credibility; [show them] that they will benefit, from the shared commitment to unanimity, in a way that they wouldn't otherwise. You do need some fluidity in the middle, if you are going] to develop a commitment to a different way of deciding things." Since many readers, including myself, might find this a perplexing notion, Rosen provides his own gloss: "In other words, on a divided Court where neither camp can be confident that it will win in the most controversial cases, both sides have an incentive to work toward unanimity, to achieve a kind of bilateral disarmament."

As it happens, David Law and I have published an article, in the Richmond Law Review, explaining "Why Nuclear Disarmament May be Easier to Achieve than an End to Partisan Conflict over Judicial Appointments ." The analysis certainly holds as well for "disarming" the two camps on the current SupremeCourt. The problem is twofold: Who is empowered to "negotiate" the treaty; and then how is compliance to be enforced, given the temptations to defect? But for starters, we should try to figure out what Roberts (or Rosen) can possibly mean by "work[ing] toward unanimity." Presumably, he's not suggesting--or is he?--that justices should agree not to vote to grant cert unless it appears (when, and how, since HW Perry suggests that almost no serious discussion goes on with regard to most cert grants?) that the outcome will be unanimous. So let's assume that cert has been granted and oral argument heard. At the time of the conference, it's obvious who wins and who loses. What incentive do the winners have to make substantial concessions to the losers, especially if the winners do indeed believe that "the Constitution" compels their result (whether it's a "color-blind Constitution" or giving genuine due process to detainees)? And when should the losers be "good sports" and sign opinions that they in fact believe to deviate from the proper understanding of the Constitution and reach results that are not supported by any sound constitutional analysis?

Apparently, Roberts is going to use his assignment power, as Chief Justice, to prefer those who are "committed to broad consensus" rather than law-professor type ideologues. So does this mean that Scalia and Thomas will get no important opinions to write in the coming term? Will Roberts, like Marshall, start hogging the show as a means of disciplining his colleagues?

George Bush has "only" 736 days remaining in office. John Roberts may have upwards of 11,000 days remaining, should he serve for 30 more years. As readers of my book know, I believe that life tenure is every bit as indefensible as is the locked-in fixed-term presidency. In the nature of the case, no Chief Justice can possibly threaten us the way an incompetent President can, but it's still no small matter that he might remain on the Court in 2037. In any event, do we really have any firm basis for believing what kind of Chief Justice John Roberts will turn out to be, and do we like what we've seen so far (including the Rosen interview)?

Comments:

A small point on umpiring. I paid my way through graduate school as an umpire. Before every game, we had an umpires' meeting designed to ensure that we presented a united front to the world. Can't tell you how many times I said "I saw what my partner saw" while desperately trying to prevent my nose from growing bigger. So whatever other criticisms of Roberts might be made, he is behaving exactly as a crew chief of an umpire crew would behave. On the other hand, his description of an umpire as simply applying the rules demonstrates he has never been to an umpires' meeting.
 

Professor Graber: he is behaving exactly as a crew chief of an umpire crew would behave.

Perhaps, Sir, I am in the wrong school? I should be taking umpire training? B^) I don't believe for a moment that you hold the pursuits of being a Supreme Court Justice and umpiring to be sufficiently close as to warrant reasoning by analogy.

I'm a 2l in a non-ABA accredited school, so maybe my reasoning is suspect. But are we to believe Justice Roberts thinks Palsgraf would be as valuable a decision without Justice Andrews's dissent? Are we, and is Justice, truly better served by reducing matters to zero-sum, "winner-take-all", games? Or are there limits to when we can safely, or even legitimately, exclude the middle?

@Professor Levinson: Talk about "silencing dissent"! Nothing short of frightening to hear such a tune called by the most powerful jurist on the globe...
 

But are we to believe Justice Roberts thinks Palsgraf would be as valuable a decision without Justice Andrews's dissent?

Link 1, Roberts 0.
 

Professor Levinson:

As a sometime political scientist, I'd be curious to know on what Roberts is basing his theory of "credibility and legitimacy." Most studies seem to suggest that the public responds fairly directly to those very few Supreme Court decisions they know anything about on the basis of whether they agree with the result.

Perhaps the better question might be whether people think that Courts are more likely to interpret the law impartially or with a political agenda. Are you aware of any polling which asks this question?

I would think that if a majority of respondents today believes courts have a political agenda, then Justice Roberts might have a point.

An argument can be made that the deeply divided courts of the past 30 years renders the perception, perhaps correct, that the Court acts according to the political leanings of its members. The press constantly treats our divided court as composed of competing political blocks with cases being decided by which block O'Connor and now Kennedy decide to join. Our nomination process likewise treats the court as a super legislature by attempting to devine the political leanings of each nominee.

Perhaps unanimous or near unanimous decisions would restore at least the illusion that the law has one meaning and the Court is impartially applying the law rather than its members' political leanings. I know this was the approach of the Florida Supreme Court during my law school internship for Justice Charlie Wells. However, Supreme Court Justices with lifetime tenures and the final word on the law are probably less likely to take to the halter and bit of subsuming their own opinions to those of the majority on a particular issue.

He suggested at his confirmation that he's a fan of precedent and narrow decisionmaking. But how does this fit with the early predictions by such experienced court-watchers as Linda Greenhouse and Joan Biskupic following the oral argument in the Seattle and Louisville cases, that Roberts (and Alito, let's not forget him) are raring to overturn decades of precedent and adopt, for the first time, a hard-core "colorblind" notion of the Fourteenth Amendment, at least where race is concerned.

If I had to hazard a guess, Roberts intends to use narrow decision making as a tactic to bypass ideological obstacles and assemble his sought after super majorities.

While I would like to believe that a Roberts Court will finally stop trying to walk the camel of state racial discrimination through the eye of the equal protection needle and establish a color blind bright line, I am unwilling to make such an assumption based on oral arguments. Let us wait for the actual decisions.
 

@Mark: Quite the compliment. Tried to google for an address to say "thanks" in private, but I can't convince myself you are this Mark Field. At any rate, thanks for the nod.
 

Attempting to limit dissents and concurrences could lead the majority to narrower rulings and less radical changes in the law. Which with a conservative majority foreseeable should make liberals happy. Not me, though. I want Roe v. Wade overturned even if it's by a five-four split.
 

Bart: Perhaps the better question might be whether people think that Courts are more likely to interpret the law impartially or with a political agenda. Are you aware of any polling which asks this question?

Whether or not some poll shows "the people" fear politicized jurisprudence, such jurisprudence is an easily observed fact, a fine examle of which is noted here. Like it or lump it such jurisprudence is here to stay. (I'm not the scholar to say whether one camp or the other is historically more prone to embarrassments such as the Scalia dissent discussed in the above link.)

Professor Levinson asks: ...do we really have any firm basis for believing what kind of Chief Justice John Roberts will turn out to be...

And the answer is, of course, "yes." We know who fought to put him on the bench. We know that the process of getting to the bench is highly politicized. How can actions on the bench then fail to be likewise, when that's what Roberts' (and Alito's and anyone else's) supporters were betting on in the first place?

It seems, then, that rather than asking, "How do we keep the bench from being (or seeming) politicized," we should be asking, "What can we do to counter this natural and unavoidable reality." The answer to that question, to my eye, would be the opposite of what Roberts suggests. Rather than creating what Bart rightly calls "the illusion that the law has one meaning", lets keep the transparency which shows the finely nuanced truths about and the legitimate difficulties of interpretation.

Bart: ...walk the camel..

Interesting. I have lamented the absence of this metaphor in recent debates, noting that the fans of tax-cuts-for-the-top-%1 never seem to remember the old saw about camels and needles and rich men getting into heaven. Count on you to stretch the metaphor so far from its original context in service of injustice disguised as "hard truths" about "black-and-white matters" of racial justice.
 

I can't convince myself you are this Mark Field.

Not very likely, but his name does assure that it's hard to find the real me in any google search. There's a comforting degree of anonymity in that, I guess.

Anyway, happy to extend the compliment, no thanks necessary.
 

Robert Link said...

(I'm not the scholar to say whether one camp or the other is historically more prone to embarrassments such as the Scalia dissent discussed in the above link.)

Justice Scalia, properly in my opinion, views the Establishment Clause as simply a bar to the establishment of a state religion like the Church of England and does not bar religious communication in the public sphere. In prior dissents, Scalia has repeatedly assailed the so called Lemon test as having no basis in the Constitution or history. Scalisa does so again in this case.

I do not see how this dissent is an example of justices writing their own opinions into the law. Quite the contrary, Scalia makes his usual case that the Court was imposing its personal opinions on the country when it created this inconsistent wall between church and state for the first time in the middle of the 20th century.

Professor Levinson asks: ...do we really have any firm basis for believing what kind of Chief Justice John Roberts will turn out to be...

And the answer is, of course, "yes." We know who fought to put him on the bench.


:::chuckle:::

Were it only so. If every justice nominated and supported by conservatives ended up being a conservative on the court, then Stevens, Souter, Kennedy and O'Connor would have been consistent conservative votes and the Court would be a far different place.

Bart: ...walk the camel..

Count on you to stretch the metaphor so far from its original context in service of injustice disguised as "hard truths" about "black-and-white matters" of racial justice.


I am curious. Exactly what is unjust about prohibiting all state racial discrimination in favor of one race and against another race?
 

Did anyone else think that Roberts came across as ... well, not very smart? I mean, smart, but not *very* smart?

I mean, what strange little ideas to be worried about.
 

"Bart" DePalma:

Perhaps unanimous or near unanimous decisions would restore at least the illusion that the law has one meaning and the Court is impartially applying the law rather than its members' political leanings.

Oh, you mean like Brown (I and II)? Or even Swann v. Charlotte-Mecklenburg....

Oh. Right. Those didn't shut the RW foamer brigades up ... or even good ol' "Bart", just a few threads ago.....

Cheers,
 

I am curious. Exactly what is unjust about prohibiting all state racial discrimination in favor of one race and against another race?

Well, one could just as easily pose the question, what's just about deciding that we as a society should say, "Let's start from scratch and prohibit all state racial discrimination from now on." In a world in which previous state endorsements of racial inequity have fostered political and socioeconomic inequity, it seems rather ineffective and unrealistic to effect justice by calling things even in name and then starting over.

Certainly, one might reasonably argue that justice isn't served by racial discrimination of any sort. However, one might also, and in my mind more reasonably, argue that justice may be better served by permitting limited distinctions on race in appropriate situations, such as to remedy inequities of past discrimination. Of course, defining "limited" and "appropriate" is no easy task, but I believe it is a more useful direction to pursue than establishing a facade of race neutral law.
 

CJ Roberts is like the leader of an old time jazz orchestra who dresses differently than the members of the band so everyone will know who is the leader. (Did Roberts continue with CJ Rehnquist's fashion in Gilbert & Sullivan robes?) The side men in the band want solo time to express and distinguish themselves. When the band leader is strong, he limits the solos tightly so that the the audience will focus upon him. (Benny Goodman was referred to by other musicians as "The Ray" for this reason.) While the band leader may have strong control, especially economically, the Chief Justice does not. Perhaps Roberts is looking ahead to some 30 years on the Court and wants to make sure that he will have control of his life tenure and perhaps how history would look back on his career. Personally, with jazz bands, I look forward to solos, especially extended ones, by talented musicians. The great jazz band leaders (Count Basie, Duke Ellington, Woody Herman, etc) built up the reputations of their bands by having good sidemen and giving them space, not hogging the limelight for themselves. So let CJ Roberts lead his Court but he must give room to his sidemen, especially the talented ones. I can just hear CJ Roberts (a la Lawrence Welk): "A one, and a two, and a ..." while waltzing through a SCOTUS decision, concurrences, dissents, etc, as the band plays on.
 

Robert Link writes:'Professor Levinson asks: ...do we really have any firm basis for believing what kind of Chief Justice John Roberts will turn out to be...

And the answer is, of course, "yes." We know who fought to put him on the bench. '


Strictly speaking, who installed him on the court doesn't in and of itself predict his behavior.

Bart writes:I am curious. Exactly what is unjust about prohibiting all state racial discrimination in favor of one race and against another race?

At the face of it, I disagree the notion of racial preference incorporated into government, if even to favor disenfranchised minorities. This is a left version of right-wing movements to further disenfranchise minorities, like using the obvious ruse of protecting marriage to disenfranchise homosexuals. Neither strategy can achieve its goals because both have in common the notion that government can shape society in dramatic ways.

Logically however, the tyranny of the majority comes to mind. Racial equality isn't just about making society (and its government) color blind with respect to race, because such a utopian goal is not realistic and doesn't take into account human nature. Failing to take into account human nature is a formula for a failed society.
 

What is so wrong with prohibiting state racial discrimination of one race against another? Nothing. It is a great idea and a great ideal, which is probably why the 1964 Civil Rights law was passed in the first place. To further that ideal we will often need state racial discrimination of one race with-and-for another race. Whites desperately need blacks and browns and reds and yellows and their influences, in their offices, in their schools, or else the whites will have an increasingly hard time dealing with the rest of the world. All the races need all the justice we can arrange, and the state must justly discriminate for all the affected races, to save the underprivileged from poverty and despair and the realities of socio-economic immobility, and to save the privileged from the sin and shame of unwittingly contributing to the misery of their fellow man.

This is not a nation of "Looking out for number one," "Greed is good," "Take the Money and Run." This is a nation of "promote the general welfare" and "secure the blessings of liberty." Not just for those lucky enough to be born with a penis and pale skin, but for all our brothers and sisters of all pigmentations. And, yes, part of the state's job is to help us all come to see each other as brother and sister. I will never understand why such a goal should so unsettle anyone of good conscience.

(Excerpted from, here , on repeal-aumf.org. The larger post attempts in part to deconstruct the strategies and tactics which drive conservatives to ask such skewed and disingenuous questions in the first place. Comments invited.)
 

bitswapper: Strictly speaking, who installed him on the court doesn't in and of itself predict his behavior.

I'm aware that the primary argument for life tenure is that over the course of decades a person who might have won the political nod from PNAC early in her career could grow a functioning conscience and moral compass later in life and start reading the law properly. So, no, the politics of getting elected are not causal, nor even determinative. However, I'd bet a pretty penny that in the end they correlate better than not. ;) If I'm wrong I'm sure someone will jump in with some links to correct me.

Peace.
 

Prof. Levinson [from the post]:

Thus, said Roberts, "I think that every justice should be worried about the Court acting as a Court and functioning as a Court, and they should all be worried, when they're writing separately, about the effect on the Court as institution."

If they were worried about the "Court as institution", they might have thought a bit about the execrable Dubya v. Gore opinion. That was the moment when the conservatives really jumped the shark.

I think that part of what is making for more seriously split decisions is the legacy of the liberal Warren court lingers on in precedent and approach, but the RW has been slowly chipping away with extreme RW ideologue Supreme Court appointments, in an effort not to sway the court and win the argument of ideas, but rather to overwhelm the court with numbers. It's apparent in the sharp opinions and dissents, not only when Scalia doesn't get his way, but in folks like Stevens (hardly a left-winger except in comparison) in his dissents when the RW manages to wrestle the court hard right, rather than cajole it over with persuasion and argument.

Then again, the court is just a microcosm of the political turf, and there as well, the battle lines have hardened considerably. "You're either with us, or you're with the Terra-ists...."

Cheers,
 

"Bart" DePalma says:

Justice Scalia, properly in my opinion, views the Establishment Clause as simply a bar to the establishment of a state religion like the Church of England...

Arguing against this, of course, is the fact that they considered and rejected language that would have made that specifically the case. See here, for example. Also see here for more of what Madison thought of "Bart"'s curiously cribbed notion of what the First Amendment prohibited.

Cheers,
 

I think you're at least misplacing the emphasis in his view and possibly misrepresenting it. He thinks it would be good for the Supreme Court to be more unanimous and not to have as many opinions issued on each case, whether concurrences or dissents. But there are two ways of achieving that. You're representing him as saying that those who disagree should violate their convictions and vote to achieve unanimity anyway and that independent thought would be discouraged. But the example of how he's done this seems to me to discount that interpretation.

Look what happened with the recent abortion case. They had a unanimous opinion because they decided narrowly on an issue that could have resulted in lots of opinions on things not necessary for settling the particular case. Roberts, I'm sure, was the one who got them all to agree to this sort of result. It's not that he was getting Thomas and Scalia to back down on their commitment to the unconstitutionality of Roe v. Wade and Casey v. Planned Parenthood or that he was getting the liberals on the court to back down on their commitments. What he did was find an issue they all agreed on and asked them to focus on that one issue, with an opinion that refuses to declare unconstitutional a law they all found generally ok with one minor problem. Send it back to the lower courts to figure out how to get the legislature to fix the problem. Keep the law. That doesn't sacrifice Scalia and Thomas' principles, really, and they're already on record about their views on the broader subject. The law can eventually be retained the way it would have passed muster among the liberals on the court. So they speak unanimously by finding what they all do agree on, and you don't have several opinions on issues not necessarily relevant.

Now he doesn't think that degree of unanimity will happen on every case, but if it can happen on an abortion case then there's some hope for decreasing all the additional concurrences and dissents from what it's been of late. That doesn't mean free thought it discouraged. It does mean the court is focusing on the most central issues and not trying to speak on everything they can think of related to the issue.

If that's right, I think a number of your criticisms do not apply.
 

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