In the American Bar Association Overview magazineElizabeth Slattery, Senior Legal Officer, Pacific Legal Foundation, wrote an article on the recently concluded Supreme Court tenure.
In the article, she focuses on two major themes: first, the Court has rendered a multitude of decisions that are both unanimous and ânarrowâ; second, that so-called conservative and liberal judges have often come together to form strange, cross-ideological decisions.
Turning to ânarrow unanimous decisions,â Slattery notes how Chief Justice John Roberts, like many of his predecessor Chief Justices, urged his colleagues to reach unanimous decisions wherever possible. The unanimous decisions of the Roberts Court are generally narrow, often avoiding revolutionary issues.
“Perhaps, however, [Robertsâ] the drive for unanimity is motivated less by a desire to increase the certainty of the law and more by a hope to deflect criticism from the media, activists and politicians and diminish the attention paid to judges.
Judges obviously vary in their political views. But imagine a scenario where politically diverse judges like Clarence Thomas and Sonia Sotomayor agree on the outcome of a case. Where the Court might otherwise be seen as partisan and political, a unanimous decision would reduce that perception and subsequent proposals for reform of the justice system.
Slattery also argues that the decisions are narrow because the court often uses them as âwarning shotsâ before later making more important decisions about the subject matter of cases.
âUnanimous decisions were rendered so narrowly, however, that they likely won’t provide much guidance to lower courts and could simply delay more contentious decisions a few years later. Yet the Roberts Court often takes an initial minimalist approach, followed by more decisive action. “
Slattery’s next theme is the ideological cross-agreements between âconservativeâ and âliberalâ judges. Against the backdrop of many commentators predicting that Amy Coney Barrett’s appointment to the Supreme Court would produce a more conservative court, Slattery demonstrates that so far the court has not swung to the right:
âOther close judgments have offered surprising couples: Judge Thomas joined byâ liberal âjudges; a majority opinion of Judge Barrett which dissented from Chief Justice Roberts and Justices Thomas and Alito; and Judge Barrett joined by Justices Sotomayor and Kagan in dissent. Is this evidence of strategic voting or call for bullets and strikes? “
She answers her own question by asserting that the ideological cross-decisions may be due to the court’s increased emphasis on textualism. Some believe that textualism generally produces conservative results, but she points to court rulings in the last term and suggests that “textualism is a methodology which does not produce predictable results from a political or partisan perspective, despite what its critics can claim. â
It’s hard to guess in which direction the Court will go, as Slattery points out. But she thinks the next session could be more tumultuous, with hot cases on the horizon.