In the past week, the U.S. Supreme Court has issued unanimous decisions in two cases. The thing I like about both of these decisions is that the government makes clear, common sensible arguments admonishing various parts of the federal government for its nonsensibility.
The first was for Arkansas Game and Fish Commission v. United States, in which the court ruled that when a federal project floods somebody’s land even temporarily, it can be considered a taking under the Fifth Amendment.1 Here, the Solicitor General (SG) tried to argue that the government can flood your land any time it wants, so long as the flooding is temporary, without any remuneration. “Temporary” could mean literally years. The court is all like, “Nah, brah.” Ilya Somin at The Volokh Conspiracy muses that the unanimity of this decisions may have been at the expense of clarity, since the court did not offer any tests to determine when such “temporary” actions may be considered takings. But those types of tests usually take awhile to get worked out anyway. In the meantime, it’s good enough to know that the federal government has one less loophole for impinging on your property rights.
The second was for Kloeckner v. Solis, in which the government said that federal employees have a clear statutory right to bring certain kinds of issues directly to district court rather than using the Merit Systems Protection Board (MSPB) — a specialized board created by the Civil Service Reform Act to review various federal employment cases related to such things as demotions and alleged discrimination. Rather than taking a clear reading of the statutes involved, the SG took, in Justice Kagan’s words, “a mazelike tour” through the relevant statutes to come up with “a bifurcated scheme.” As Josh Blackman says, the SG got “bench slapped.”
I may be a little disingenuous pointing to only the latest two SCOTUS decisions, since in reality all five of the decisions issued so far in the 2012 term have been unanimous. This might come as a shock to anyone who does not follow the Supreme Court and only hears about contentious cases. “Five unanimous decisions?” they might say. “FIVE!?” Believe it or not, this is fairly common. In the 2011 term, five of the first six opinions delivered by the court were unanimous, and in 2010 all of the first six were unanimous decisions. Earlier this year, Forbes staff writer Daniel Fisher noted that for the 2011 term, more than half of the Supreme Court’s decisions were unanimous. This is higher than in other recent years, but even in 2006, which was apparently a rather contentious year, unanimous decisions outpaced the much-maligned 5-4 split. There’s probably a few obvious reasons for why so many unanimous decisions are issued up front — because they’re based on clearer precedents or principles, easier to decide, quicker to write, etc. — but it doesn’t change the fact that in a goodly number of cases, all of the justices agree.
(Note that I’m not arguing that all unanimous court decisions are good. The unanimous decision in Wickard v. Filburn is, in my opinion, one of the most egregious examples of a court gone wrong. In most instances, however, unanimous decisions tend to either overturn asinine rulings by lower courts, or [in many fewer cases] establish sensible precedents to build on later.)
So, what am I getting at here? I’m saying we should recognize that not everything is controversial. It’s easy to get bogged down by the sensationalism of the media and political pundits who barrage us with stories about “divided courts” and so-forth. But the polarization of the Supreme Court is, it seems, not as complete as some would have us believe. Earlier this year, a paper by Lee Epstein, William M. Landes & Richard A. Posner studiedthe role of ideology in unanimous Supreme Court decisions. They found that in many cases, justices are willing to set aside ideological differences, when stakes are relatively low, in order to achieve consensus. This goes against the mainstream commentary that the court is so highly politicized that it’s borderline dysfunctional.
Which is to say that Supreme Court justices are just like most people. I’m a libertarian, which means I have family, friends and acquaintances with views that differ quite radically from mine (or, perhaps my views differ radically from theirs…). That doesn’t mean we don’t get along at all and that we can’t have conversations, even political conversations, wherein we don’t agree on anything. In fact, most of the time I’ve found that once you get past absurdly inconsistent and uninformative political labels such as “liberal” and “conservative,” most people tend to agree about most things.
So, the next time you read about the latest “controversial split decision” from the Supreme Court, please take a moment to remember: It’s not always that way. Either in the courtroom or the dining room.
1. Justice Kagan did not participate in the voting for this opinion, since she worked on the during her tenure as Solicitor General. It is still considered a “unanimous” decision since all voting justices joined the court’s opinion.