A couple years ago, in a Wall Street Journal op-ed, Peggy Noonan discussed The High Court’s Disunited State, regarding the Court’s increasing number of ideologically split decisions (typically split 5 to 4).
With the impending return to a full, and still ideologically divided Court, I would like to take that issue one step further. She pointed out that some of the most pivotal landmark cases of the past have been decided by unanimous opinion of the Supreme Court. Such as Brown v. Board of Education, which ended school segregation and Loving v. Virginia, which struck down prohibitions on mixed-race marriages. Issues that are now accepted and settled law.
Now, stop and think for a moment what we are talking about here. These are nine Justices whose sole purpose is to interpret the Constitution, the Supreme Law of the Land! Is a simple majority ruling sufficient to settle “Supreme Law?” Just a cursory look at past split-decisions makes it painfully clear that a split-decision on the Supreme Court actually settles nothing.
- Rowe v Wade (1973) the court split 5-4 and it is still being debated to this day.
- DC v Heller (2008) and McDonald v Chicago (2010) both 5-4 splits on 2nd Amendment gun rights and again it is still being debated to this day.
- Citizens United v Federal Elections Commission (2010) split 5-4 and campaign finance is still a hot topic today.
- Two rulings on “Obamacare” have both been split and the controversial healthcare law is still the subject of heated debate.
- Obergefell v Hodges was split 5-4 on same-sex marriage and has ignited a firestorm of debate and State pushback.
Ted Cruz elaborates on just one such example of the debate that continues despite a SCOTUS split decision
Scholars consider these narrow decisions to be the most political. Research indicates that 5-to-4 opinions are the most likely to be overturned by later Courts. They carry the same “LEGAL FORCE” and authority as more unanimous opinions, but NOT the same moral authority or acceptance.
It wasn’t always this way, though. From 1801 to 1940, less than 2 percent of the Supreme Court’s total rulings were resolved by 5-to-4 decisions. Since then, more than 16 percent of the Court’s rulings have been decided by “minimum-winning coalitions.” In the two most recent Courts, more than a fifth of all rulings were decided by 5-to-4 votes.
Due to the ideological split among the Justices, most recent split decisions typically come down to the opinion of just ONE Justice and that is typically Justice Kennedy. Justice Anthony Kennedy is not the Chief Justice of the Supreme Court or the President of the United States, but he is arguably THE Most Powerful Man in America.
Corrupt career politicians have inspired a movement for Term Limits and a call for a Constitutional amendment to impose them. The argument being that long term “public service” allows for an accumulation of power far beyond the intended enumerated powers delegated within the Constitution. Being founded as a “Nation Of Laws” would seem that you could apply the same argument to the Supreme Court. The rise of split decisions within Supreme Court rulings and their tendency to be overturned. The fact that those split decisions are Supreme Law unless or until they are overturned. The issue would seem to call into question a split decision even being Constitutional.
So, what if nine Justices cannot agree on an issue’s Constitutionality, based on the Constitution itself and the supporting literature defining its original intent? Then it is, by definition, either unconstitutional or a matter not governed by the Constitution and therefore a matter left to the States or individual discretion.
Politicizing of Supreme Constitutional Law is completely antithetical to the purpose of the Supreme Court’s separation of power from the legislative and executive branches. If a President can “stack the court” with Justices of a particular ideology and Congress consents to that ideological imbalance, then perhaps it is time to truly balance the ideologies. How? By enforcing unanimity in Supreme Court decisions. If opposing ideological forces can form a unanimous decision on a Constitutional issue, then perhaps some of the most divisive issues of the modern age can be resolved with some sense of finality. Or perhaps they can be returned to their proper jurisdictions within the States or within the control of The People themselves.
- Justice should be blind to politics and balanced in its application, because Law Is Force, The force of law, ENFORCED unjustly, benefits nobody in the end.