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Unanimity rules the year on Supreme Court, but dissent remains cornerstone of justice



Published: Mon, July 7, 2014 @ 12:00 a.m.

Many legal scholars have been quick to boo the U.S. Supreme Court for hamming it up a bit too much. Specifically, critics have panned the court for upstaging the legislative and executive branches of government through overly activist, highly divisive and politically charged performances unbecoming of its austere supporting role as the third branch of the federal government.

To an extent, the critics have a point. In some of the most highly visible hot-button issues before the highest court in the land over the past year, the tensions between its liberal and conservative wings have been placed on very public and unflattering display. Nonetheless, objective observers of the court’s just-concluded 2013-2014 session must acknowledge that collectively it has emerged as one of the most unified Supreme Court panels in American history.

In fact, one would have to travel back in time more than 60 years to find a Supreme Court in which a higher percentage of unanimous decisions were rendered. As The Christian Science Monitor reported last week, “Overall, the high court decided 67 cases after hearing oral arguments, and resolved five others through summary decisions. In the process, the justices set a new standard for unanimity – voting 9 to 0 or 8 to 0 in 65 percent of their cases. It is a level of agreement unheard of since the early 1950s.”

RESOUNDING REINFORCEMENT

Such unanimity is heartening because in many of those cases, the justices spoke with one powerful and resounding voice to reinforce bedrock American principles of liberties and First Amendment freedoms.

For example, the justices unanimously bolstered Americans’ rights to freedom of speech and assembly when it recently invalidated a Massachusetts state law that required a 35-foot buffer zone around abortion clinics within which pro-life and other demonstrators could not gather. The court struck down the law because it amounted to unjustifiable government censorship of all speech within a zone on a public sidewalk and public street.

In another encouraging unanimous decision, the court reaffirmed hallowed Fourth Amendment privacy protections by requiring that police obtain formal warrants before searching the content of a cellphone seized from an individual during an arrest.

In another 9-0 ruling, the justices rightfully scorned President Barack Obama for overreaching the constitutional balance of powers by his unilateral declaration that the Senate was in recess [when it was not] so he could bypass legislative opposition to install his hand-picked favorites onto the National Labor Relations Board.

Despite its track record of unanimity, justices differed — sometimes vociferously so — on some of the most emotionally charged cases before its bench. Such disagreement, of course, is nothing to scoff at, as the right to dissent remains another of America’s most cherished values and the primary one on which the nation was founded.

PREDICTABLE 5-4 SPLITS

In three of the most passion-filled cases of the term — religious freedom, campaign finance, public prayer— the court split in predictable 5-4 fashion. Republican appointees — Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Samuel A. Alito Jr. — were pitted against the dissenting Democratic appointees of Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

In those cases, we most often have sided respectfully with the minority on the court. As we have argued in this space in the past, unlike the high court’s majority, we do not believe corporations are people that deserve First Amendment citizen protections. Justices who believe companies are somehow human tipped the scales in last week’s Hobby Lobby ruling that declared that closely held, family-run companies do indeed enjoy First Amendment protections of their religious rights, and that the Affordable Care Act infringes on those rights in its contraception mandate.

The high court’s conservative majority also further diluted campaign-finance reform laws it views as too restrictive of free-speech freedoms. The court voted 5-4 to invalidate limits on the total amount of money someone can give to federal candidates in an election cycle. That only opens the door wider to letting monied interests determine the outcomes of elections and the occupants of high offices.

And, in this spring’s 5-4 split ruling to permit Christian prayer at town meetings, justices erred on the side of outdated tradition in finding that the First Amendment is not violated when government favors one religion over another unless coercion is involved.

Clearly, ideological divisions remain and likely will remain on the highest court of the land. Those divisions, however, should not undermine the overwhelming consensus that justices have built on the vast majority of their interpretations and applications of constitutional law. Nor should such disagreement be viewed in a negative light as dissent more accurately reflects the wide spectrum of ideological thought among the increasingly diverse population that the justices are sworn to represent.


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