Posted Aug 13, 2014 11:15 am CDT
Chief Justice John G. Roberts Jr. said during his confirmation hearings that he had an obligation to try to achieve consensus, a vow that may be having an effect.
In 2013, the rate of unanimous decisions by the U.S. Supreme Court was the highest since 1940, according to an article by Harvard law professor Cass Sunstein. He cites Roberts’ view that closely divided decisions make it more difficult for the public to accept the court as a nonpartisan institution.
But does unanimity make the public more likely to accept a court decision? Two experiments by Washington State University political scientist Michael Salamone suggest divided decisions are unlikely to threaten the court’s legitimacy, at least not in specific cases, Sunstein says in his article. The New York Times reports on Sunstein’s article and Salamone’s findings.
Salamone asked test subjects what they thought of the Supreme Court’s 2005 Kelo v. City of New London decision that upheld the use of eminent domain for economic development by a private developer. Salamone described the decision, but told some test subjects that it was a 5-4 decision (it was indeed), some that it was unanimous and some that it had a single dissent. Others weren’t told the vote. No matter what they were told, the study subjects disagreed with the decision at about the same rate.
In a second study using fake Supreme Court cases based on real disputes, Salamone found that when a decision triggered strong concerns, the subjects weren’t moved by the court vote. When the case mattered little to the test subject, large court majorities did affect test subjects’ attitudes.
Sunstein describes Salamone’s study and concludes, “The idea that 5-4 decisions pose a serious problem of credibility or legitimacy remains an unproven hypothesis.”