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U.S. Supreme Court

A ‘specious unanimity’? Concurrences in some unanimous SCOTUS cases are as angry as dissents

Posted Jul 2, 2014 11:18 AM CDT
By Debra Cassens Weiss

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On the surface, the Supreme Court appears to be less divided than in the recent past.

The court was unanimous in 65 percent of its decisions this term, the highest percentage since 1953, the New York Times reports. Despite the increasing unanimity, angry concurrences show the fault lines remain, according to the Times, the Washington Post and the Wall Street Journal (sub. req.).

The articles point to the influence of Chief Justice John G. Roberts Jr., who said during his confirmation hearings that the chief justice “has a particular obligation to try to achieve consensus.”

Some unanimous rulings this term avoided broad pronouncements, and some were in cases with “low ideological stakes,” according to Washington University law professor Lee Epstein. “This term, about 36 percent involved questions of rights and liberties, compared with 57 percent in the three previous terms,” she told the New York Times.

Concurring justices sometimes urged the court to go further, though they agreed with the result. Some concurrences “were as stinging as dissent,” the Washington Post says.

Court watchers have coined terms for the 9-0 phenomenon, such as "faux-nimity" and "un-unanimous," the Washington Post reports. Justice Antonin Scalia used another term—“specious unanimity”—when he concurred in a decision striking down a 35-foot buffer zone around abortion clinics. Scalia wanted to strike down a precedent allowing any protest restrictions around clinics.

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