Given the power of unelected judges and the bluntness with which those of both liberal and conservative persuasion have been swinging away with it is it time to require a unanimous opinion from all justices hearing the case in order to void laws as unconstitutional? Perhaps so. After Marbury v Madison it was 2 generations before the Supreme Court again exercised this power in Dred Scott v Sandford. Obviously the pace of legislation and jurisprudence has accelerated considerably but nowadays it seems laws are struck down right and left. Judges should defer to the elected officials and step in only when representatives have without question overstepped their bounds.
Would a requirement of unanimous opinions help matters? I think so. Certainly partisan judges wouldn’t disappear and they would seek to interpret laws they couldn’t nullify in ways to block the legislative intent. But then the legislature could pass a clear clarification which judges might ignore only at their peril. If a constitutional crisis arises from judges clearly ruling that up is down and day is night then they could find themselves in hot water. Even clunky impeachment procedures might become viable.
Split decisions are much more often based on different legal opinions, not partisanship.
Further, requiring unanimity would make for a much higher bar for Constitutionality than it should be.
Lastly, and most damaging to the proposal, it would give partisan judges much more power to control a decision than they have now–worsening the problem you’re trying to avoid.
No. If anything, I can see a case for requiring unanimity to uphold laws – if there’s enough doubt about a law’s constitutionality to produce a split decision, that’s a sign that Congress needs to go back to the drawing board.
By that standard we’d still have sodomy laws, abortion bans, school-mandated Bible study, and police would have no obligation to inform arrestees of their rights.
Miller is correct. This would practically nullify judicial review, and remove a huge check on the power of the legislature.
Rhythmdvl is also correct that split opinions are quite often sincere differences of opinion on complex legal matters. Even the Supreme Court isn’t some partisan Thunderdome.
I don’t agree with the OP, but this is a bit of an exaggeration. There are lots and lots of unanimous decisions by the court, but we tend to hear only about the large, contentious ones.
There are unanimous decisions, but I’m not sure how many of those overturn laws. Anyway I would be interested to see a compilation of their recent votes to see how many were unanimous and how many were not. I did a few web searches, but I’m not familiar with the various Supreme Court blogs and tracking sites.
WOAH. Did anyone else see Reynolds v. United States, where Scalia and Ginsberg dissented, the rest concurred??? Scalia filed the dissent and Ginsberg joined in his dissent. That is honestly amazing.
This was also the only case where the phrase “as goes Scalia, so goes Thomas” did not apply last year.
OK, requiring six votes to keep a law would be enough to insure that laws don’t get thrown out based on an weak idiosyncratic argument, but only when there’s reasonable doubt that they pass constitutional muster.