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The New Roberts Court: More Unanimity, Less Dissent


The United States has a new Chief Justice of its Supreme Court. And things are changing. So far perhaps the most marked difference between the Rehnquist Court to the Roberts Court has been a change from fractious dissent to surprising unanimity.

During late Chief Justice William H. Rehnquist’s 20 year reign, Justices often wrote separately to express even slight disagreement with the majority. Many decisions were accompanied by concurrences and dissent. In the Samuel Alito confirmation process, much was made of the number of 5 - 4 decisions affected by Justice Sandra Day O’Connor who was portrayed as a swing voter. Justice O’Connor provided the deciding vote in twenty (20) of the most important Supreme Court cases in the last ten (10) years. There were many more 5 - 4 decisions as well.

John Roberts was confirmed as the Supreme Courts’ seventeenth Chief Justice on September 29, 2005, twenty-six days after Rehnquist’s death. Twenty-nine (29) signed rulings have been issued since Roberts’ confirmation. Twenty-one (21) were unanimous. Only six (6) concurring opinions have been written this term.

Roberts is claimed to be more accessible to Supreme Court staff, and allows far more debate than Rehnquist in private case discussion conferences among the Justices. The extended discussion seems to enable more agreement on written opinions.

Former U.S. Solicitor General, Theodore Olson, relayed private comments by the other current Justices to Tony Mauro of the Legal Times. “One of the Justices told me, ‘I think that he could be one of our greatest Chief Justices’” Olson said, declining to name names. “Another said, ‘I think he is going to be great; he’s been wonderful so far.’” Tony Mauro, Legal Times, March 15, 2006.

Practitioners and lower courts often found it hard to follow and apply Rehnquist era decisions because they were so fragmented by dissenting and concurring opinions. At the very least, unanimity provides more certainty for lawyers and lower courts in the daily work of the law.

Olson has been quoted as saying that current Justices speak about Roberts “as if he was born to be Chief Justice of the United States, much like Tiger Woods was born to be on a golf course.” Id.

The unanimity could easily change. Chief Justice Roberts wrote a bitter dissent in a March 22, 2006 warrantless search decision – described as “pointed, personal and acerbic.” Linda Greenhouse, The New York Times, March 23, 2006. Roberts was joined by Justices Scalia and Thomas, while Justice Breyer wrote a concurrence to provide the deciding vote in a 5-3 majority. (Justice Alito did not vote in the case, Georgia v Randoph, No. 04-1067) because he joined the court after the oral argument).

Whether the newfound agreement between the “original text” and “living constitution” factions of the Court continues or breaks down will be a trend worth watching.

March, 2006

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