A recent poll by the Pew Research Center found that only 52 percent of Americans have a favorable opinion of the US Supreme Court, the lowest rating since the center began conducting that poll in 1987. The reason for this decline in respect could be the ever-increasing number of 5-to-4 decisions and bitter dissenting opinions. These dissents undermine court decisions, diminish the court’s moral standing, and contribute to cynicism about the court and the judicial system itself.
When the court announces its much anticipated decision on national health care, expected in the next few weeks, there is the real prospect of another 5-4 decision, which means, once again, a case where dissenting justices are likely to write scathing separate opinions. Perhaps it would be more constructive for the court to decide cases by majority vote and issue a single opinion in the name of the court without publishing the votes or opinions of individual justices.
By eliminating dissenting opinions, which are sometimes longer than the majority opinion, the justices could focus more on crafting one clear opinion than on framing contentious responses. Any loss of egocentric exposition or subjective satisfaction caused by ending separate opinions would be more than compensated for by the added force, weight, and dignity unified Supreme Court decisions could command. The focus would be upon the rule of law, not upon judicial personalities.
Frequent fractured opinions — especially in controversial and politically charged cases, like election challenges, campaign financing, or strip search practices — create the impression that those decisions may be politically motivated or agenda-driven and do not deserve the same respect and vitality given decisions rendered by greater majorities. They lead to charges of judicial activism and result in increasing partisan intrusion into the judicial process. Too often significant decisions are determined by one swing justice, giving the impression that Supreme Court precedent can be influenced merely by filling a vacancy with the right judge.
If by some rare chance the Supreme Court were to consider issuing one opinion in its cases, it would not be the first time. Chief Justice John Marshall, who served from 1803 to 1835, established the practice of issuing one opinion, presumably to add force and impact to court pronouncements. Considering the recent proliferation of harsh dissents, the court should think about bringing it back.
By eliminating dissenting opinions, the justices could focus more on crafting one clear opinion.
The US Constitution vests the judicial power in one Supreme Court, not in each individual justice. Court decisions, not personal opinions, are the law of the land. Is it unreasonable to ask the majority to produce one opinion announcing the decision, and ask the others to be silent? Is it too much to expect the justices to exalt the majority view over minority dissents?
Although publication of the rare unanimous opinion or large majority decisions may signify a likelihood of longevity, publishing one decision in each case would give all cases the same sense of permanence. Of course, there have been some notable dissents in the past 200 years, but the cost of dissenting opinions today is too high for the hope of occasional brilliance. Even if dissents were helpful and contributed to the development of the law, they do not seem worth the price extracted by fractured opinions.
The public is already cynical about government and weary of political contentiousness. The people deserve one clear decision. They deserve opinions that are not undermined by dissenting personalities. They deserve precedent that does not appear to depend for permanence upon the next judicial appointment.
It seems to me that exploring a new approach would be not only valuable and productive but also interesting and energizing. At worst it would be harmless.
But that’s just my opinion. Others, of course, may dissent.
Joseph P. Nadeau is a retired associate justice of the New Hampshire Supreme Court.