Requiem for 5 – 4 Supreme Court Decisions

Chief Justice Roberts gave an address at Georgetown in which he lauds the virtues of deciding cases, where possible, narrowly and unanimously:

 "If it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case," Roberts said. "Division should not be artificially suppressed, but 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."

Its not clear that Roberts' prediction (that consensus on the Court yields clarity, precision, and narrowness) is right.  Consensus-building in Congress, another multi-member voting body, is purchased at the price of legal fuzziness.  The more amorphous and open-ended the statute--the more the statute defers tough questions--the more members of Congress agree to add their names to it. 

While consensus building on the Supreme Court is a simpler prospect, there's no reason to think the same basic dynamic won't apply here too:  Supreme Court justices will purchase broad agreement at the price of clarity, harming the rule of law. 

Indeed, as I discuss at the end of this online debate, this may be the lesson of one of Roberts' earliest opinions (in Rumsfeld v. FAIR).  There, the Court was asked to decide whether Congress violated law schools' free speech rights by threatening to withdraw federal funding unless the schools sponsored JAG recruiters on campus.  The Court unanimously rejected the law schools' First Amendment claims.  But in the course of doing so, it reached a question it didn't have to reach:  the scope of deference owed to Congress when it regulates "military affairs."  Worse, the Court's cursory discussion of military affairs deference is exceedingly unclear and could be read to mean that judicial enforcement of the Bill of Rights is at a vanishingly low ebb when Congress raises and supports armies.  

As even the National Review admits, this aside is troubling and deserves clarification.  But it may also be a by-product of Roberts' drive for consensus:  Some justices may have joined the Court's ruling on the First Amendment only if there was some hedge that allowed them to distinguish the First Amendment ruling in a later, different case.  Adding in a bit about military deference may have been the hedge that brought those justices on board, allowing them to rule differently in a case that didn't involve national security.  But other justices may have been wary about the scope of deference in this area.  Therefore it was necessary to discuss military deference in a vague way in order to belay these fears.  The result:  an opinion that inadvertently muddies the scope of civil liberties in the shadow of military-related legislation, inviting envelope pushing by Congress and the President.

The lesson:  Sometimes being narrow requires hedging.  And sometimes consensus requires wishy-washiness.  Hedging and wishy-washiness in turn make the law less clear.  That may give government officials more discretion to boss us around, while leaving the rest of us in the dark about the scope of our rights.