Lessons in Unanimity

Bruce I. Petrie, Jr.

In its post-Scalia interregnum, the 8-Justice Supreme Court just isn’t acting the way the Blue/Red Gogglers (i.e. those who view the Court only through the political lens of divided politics) predict they act. The 8-Justice Court isn’t just deadlocking 4-4, liberals versus conservatives. We are seeing a Court of Eight that is not always automatically deadlocking along 4-4 lines. The Eight are navigating pathways to do its job of deciding cases and moving its docket along at a time when the other two branches of government are bound up with election season politics.

Unanimous. That was the Supreme Court vote this week in the voter rights case of Evenwel v. Abbott. Justice Ginsburg held “based on constitutional history, this court’s decisions, and long-standing practice, that a state may draw its legislative districts based on total population.”  The Court rejected the argument that you can’t include in that drawing of districts those who lack the right to vote (e.g. immigrants, prisoners, children). Justice Ginsburg was joined by Chief Justice Roberts along with Justices Kennedy, Breyer, Sotomayor and Kagan, with Justices Thomas and Alito agreeing with the outcome for different reasons.

Unanimity. Has a nice ring to it, doesn’t it, in a democracy still constitutionally dedicated to forming a more perfect Union.

Unanimity of outcome doesn’t have to include unanimity of reasons for reaching that outcome. Decision-making that moves forward rather than deadlocks allows room for pluralism of reasoning.

In law or business or any number of pluralistic civic and social groupings that successfully make decisions and move forward, there’s often a process of letting others keep their own backpacks of reasons while crossing over the bridge to consensus.