# Is it Time to Require Unanimous Opinions to Overturn Laws? **URL:** \ **Category:** Great Debates\ **Created:** [April 5, 2012, 7:37pm UTC](https://boards.straightdope.com/t/is-it-time-to-require-unanimous-opinions-to-overturn-laws/617937 "2012-04-05T19:37:03Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![2sense](https://avatars.discourse-cdn.com/v4/letter/2/e47774/32.png) [@2sense](https://boards.straightdope.com/u/2sense)\ **Post date:** [April 5, 2012, 7:37pm UTC](https://boards.straightdope.com/t/is-it-time-to-require-unanimous-opinions-to-overturn-laws/617937/1 "2012-04-05T19:37:03Z")
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. ---
**Author:** ![just\_some\_guy5](https://avatars.discourse-cdn.com/v4/letter/j/5daacb/32.png) [@just\_some\_guy5](https://boards.straightdope.com/u/just_some_guy5)\ **Post date:** [April 5, 2012, 7:48pm UTC](https://boards.straightdope.com/t/is-it-time-to-require-unanimous-opinions-to-overturn-laws/617937/2 "2012-04-05T19:48:05Z")
So the Supreme Court would need unanimous agreement to overturn a law that passed the House by a margin of something like 219-212? Seems like you’d be tilting the checks / balances very strongly in favor of Congress. ---
**Author:** ![Rhythmdvl](https://avatars.discourse-cdn.com/v4/letter/r/85f322/32.png) [@Rhythmdvl](https://boards.straightdope.com/u/Rhythmdvl)\ **Post date:** [April 5, 2012, 7:49pm UTC](https://boards.straightdope.com/t/is-it-time-to-require-unanimous-opinions-to-overturn-laws/617937/3 "2012-04-05T19:49:51Z")
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. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [April 5, 2012, 8:06pm UTC](https://boards.straightdope.com/t/is-it-time-to-require-unanimous-opinions-to-overturn-laws/617937/4 "2012-04-05T20:06:57Z")
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. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [April 5, 2012, 8:14pm UTC](https://boards.straightdope.com/t/is-it-time-to-require-unanimous-opinions-to-overturn-laws/617937/5 "2012-04-05T20:14:39Z")
This would just about guarantee that no law would ever be overturned again. I’m not seeing how that is a good thing. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [April 5, 2012, 8:43pm UTC](https://boards.straightdope.com/t/is-it-time-to-require-unanimous-opinions-to-overturn-laws/617937/6 "2012-04-05T20:43:55Z")
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. ---
**Author:** ![shy\_guy](https://avatars.discourse-cdn.com/v4/letter/s/a6a055/32.png) [@shy\_guy](https://boards.straightdope.com/u/shy_guy)\ **Post date:** [April 5, 2012, 9:27pm UTC](https://boards.straightdope.com/t/is-it-time-to-require-unanimous-opinions-to-overturn-laws/617937/7 "2012-04-05T21:27:36Z")
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. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 5, 2012, 10:13pm UTC](https://boards.straightdope.com/t/is-it-time-to-require-unanimous-opinions-to-overturn-laws/617937/8 "2012-04-05T22:13:17Z")
> [@Marley23](#): > > This would just about guarantee that no law would ever be overturned again. I’m not seeing how that is a good thing. 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. ---
**Author:** ![Saint\_Cad](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saint_cad/32/18907_2.png) [@Saint\_Cad](https://boards.straightdope.com/u/Saint_Cad)\ **Post date:** [April 5, 2012, 10:32pm UTC](https://boards.straightdope.com/t/is-it-time-to-require-unanimous-opinions-to-overturn-laws/617937/9 "2012-04-05T22:32:57Z")
How about 2/3? 6 out of 9 Justices on SCOTUS. ---
**Author:** ![just\_some\_guy5](https://avatars.discourse-cdn.com/v4/letter/j/5daacb/32.png) [@just\_some\_guy5](https://boards.straightdope.com/u/just_some_guy5)\ **Post date:** [April 5, 2012, 10:41pm UTC](https://boards.straightdope.com/t/is-it-time-to-require-unanimous-opinions-to-overturn-laws/617937/10 "2012-04-05T22:41:40Z")
> [@Saint\_Cad](#): > > How about 2/3? 6 out of 9 Justices on SCOTUS. What would this accomplish? Should we require the same threshold for Congress to create laws? ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [April 5, 2012, 10:44pm UTC](https://boards.straightdope.com/t/is-it-time-to-require-unanimous-opinions-to-overturn-laws/617937/11 "2012-04-05T22:44:31Z")
> [@John\_Mace](#): > > 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. ---
**Author:** ![PrettyVacant](https://avatars.discourse-cdn.com/v4/letter/p/49beb7/32.png) [@PrettyVacant](https://boards.straightdope.com/u/PrettyVacant)\ **Post date:** [April 5, 2012, 11:08pm UTC](https://boards.straightdope.com/t/is-it-time-to-require-unanimous-opinions-to-overturn-laws/617937/12 "2012-04-05T23:08:50Z")
I don’t understand how a party politician gets to select any Supreme Court Judge in the first place - separation of powers, etc. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 5, 2012, 11:10pm UTC](https://boards.straightdope.com/t/is-it-time-to-require-unanimous-opinions-to-overturn-laws/617937/13 "2012-04-05T23:10:46Z")
> [@PrettyVacant](#): > > I don’t understand how a party politician gets to select any Supreme Court Judge in the first place - separation of powers, etc. The alternative being…? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 5, 2012, 11:16pm UTC](https://boards.straightdope.com/t/is-it-time-to-require-unanimous-opinions-to-overturn-laws/617937/14 "2012-04-05T23:16:54Z")
[Note how many decisions last year were unanimous.](http://en.wikipedia.org/wiki/2011_term_opinions_of_the_Supreme_Court_of_the_United_States) Some of those are overturning laws, but it’s difficult to tell how many. ---
**Author:** ![PrettyVacant](https://avatars.discourse-cdn.com/v4/letter/p/49beb7/32.png) [@PrettyVacant](https://boards.straightdope.com/u/PrettyVacant)\ **Post date:** [April 5, 2012, 11:19pm UTC](https://boards.straightdope.com/t/is-it-time-to-require-unanimous-opinions-to-overturn-laws/617937/15 "2012-04-05T23:19:16Z")
> [@John\_Mace](#): > > The alternative being…? Non-party political. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 5, 2012, 11:20pm UTC](https://boards.straightdope.com/t/is-it-time-to-require-unanimous-opinions-to-overturn-laws/617937/16 "2012-04-05T23:20:42Z")
> [@PrettyVacant](#): > > Non-party political. Like who? ---
**Author:** ![figure9](https://avatars.discourse-cdn.com/v4/letter/f/f0a364/32.png) [@figure9](https://boards.straightdope.com/u/figure9)\ **Post date:** [April 5, 2012, 11:23pm UTC](https://boards.straightdope.com/t/is-it-time-to-require-unanimous-opinions-to-overturn-laws/617937/17 "2012-04-05T23:23:41Z")
The U.N. ---
**Author:** ![Astral\_Rejection](https://avatars.discourse-cdn.com/v4/letter/a/258eb7/32.png) [@Astral\_Rejection](https://boards.straightdope.com/u/Astral_Rejection)\ **Post date:** [April 5, 2012, 11:31pm UTC](https://boards.straightdope.com/t/is-it-time-to-require-unanimous-opinions-to-overturn-laws/617937/18 "2012-04-05T23:31:12Z")
> [@figure9](#): > > The U.N. That raises any number of concerns, not least of which involves surrendering our sovereignty concerning the law of our own country. ---
**Author:** ![drewtwo99](https://avatars.discourse-cdn.com/v4/letter/d/d07c76/32.png) [@drewtwo99](https://boards.straightdope.com/u/drewtwo99)\ **Post date:** [April 6, 2012, 12:13am UTC](https://boards.straightdope.com/t/is-it-time-to-require-unanimous-opinions-to-overturn-laws/617937/19 "2012-04-06T00:13:52Z")
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. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [April 6, 2012, 12:59am UTC](https://boards.straightdope.com/t/is-it-time-to-require-unanimous-opinions-to-overturn-laws/617937/20 "2012-04-06T00:59:15Z")
> [@Saint\_Cad](#): > > How about 2/3? 6 out of 9 Justices on SCOTUS. 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. [Next page](https://boards.straightdope.com/t/is-it-time-to-require-unanimous-opinions-to-overturn-laws/617937.md?page=2)