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Constitutional Principles

Those 5-to-4 decisions on the Supreme Court? 9 to 0 is far more common.

By Sarah Turberville | Filed under analysis | June 28, 2018

This piece was co-authored with Anthony Marcum from the R Street Institute, and originally appeared on The Washington Post.

Justice Anthony M. Kennedy’s announcement Wednesday that he would be retiring from the Supreme Court led to justifiable hand-wringing about his crucial role as the swing vote in 5-to-4 decisions. But while 5-to-4 decisions — including the Tuesday blockbuster upholding President Trump’s travel ban — draw deserved attention, they obscure an important truth: The court values consensus, and justices agree far more often than they disagree.

The ratio is staggering. According to the Supreme Court Database, since 2000 a unanimous decision has been more likely than any other result — averaging 36 percent of all decisions. Even when the court did not reach a unanimous judgment, the justices often secured overwhelming majorities, with 7-to-2 or 8-to-1 judgments making up roughly 15 percent of decisions. The 5-to-4 decisions, by comparison, occurred in only 19 percent of cases.

And the court’s commitment to consensus does not appear to be slowing. In the 2016-17 term, 57 percent of decisions were unanimous, and judgments with slim majorities (5 to 3 or 5 to 4) accounted for just 14 percent. This term shows a similar trend. Surprisingly firm majorities issued some of the most anticipated decisions. In Masterpiece Cakeshop — the case concerning a baker’s refusal to bake a wedding cake for a same-sex couple — the court issued a rather narrow ruling on the substance, but it drew seven of the nine justices’ votes. In Gill v. Whitford, the court unanimously agreed that a group of Wisconsin voters did not have standing to challenge their state’s legislative map, and seven justices concurred that the voters could take their case back to district court and try again.

Read the full piece on The Washington Post.

The Constitution Project

The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.

Author

  • Author

    Sarah Turberville

    Sarah Turberville is the director of the Constitution Project at POGO.

Related Tags

    Constitutional Principles Justice System Ethics Supreme Court of the United States (SCOTUS)

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