Prof. Questions Value of Supreme Court Consensus


Is consensus among U.S. Supreme Court justices a good thing? Adam Liptak of the New York Times says a new study by Cass R. Sunstein, a Harvard law professor, concluded that all of the usual reasons for seeking common ground were open to question. “The arguments in favor of higher levels of consensus,” he wrote, “rest on fragile empirical foundations.”

One of the standard justifications is that closely divided rulings may be perceived to be less legitimate than united ones. As Justice Ruth Bader Ginsburg recently said, “I don't think that 5-4 decisions have the same clout as a unanimous decision.” A divided opinion, Judge Learned Hand once wrote, “cancels the impact of monolithic solidarity on which the authority of a bench of judges so largely depends.” But Sunstein has concluded that “the idea that 5-4 decisions pose a serious problem of credibility or legitimacy remains an unproven hypothesis.”

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