Consensus at the Supreme Court

WASHINGTON

The Supreme Court is trying hard to reach common ground in the wake of the vacancy created by the death of Justice Antonin Scalia in February. But some justices are trying harder than others.

A burst of 11 decisions issued in just over a week in late May provided one telling snapshot of a court divided over the value of consensus. A series of public remarks last week from three justices delivered another.

The court seems to have split into two camps, with the four justices at its ideological center working diligently to deliver unified opinions. The remaining members of the court seem less committed to that project.

The recent run of rulings, accounting for more than a quarter of all decisions in argued cases this term, tells the story.

The court’s most conservative members — Justices Clarence Thomas and Samuel A. Alito Jr. — wrote eight concurrences or dissents. Its two most liberal members — Justices Ruth Bader Ginsburg and Sonia Sotomayor — wrote four.

The remaining justices make up the new center of the court. Three of them — Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy and Elena Kagan — voted together in every case, and Justice Stephen G. Breyer cast a single dissenting vote. None wrote a concurrence or dissent.

Two members of that core group last week offered public reflections on the court’s current state, declaring themselves satisfied.

“I try to achieve as much consensus as I can,” Roberts said at a judicial conference in White Sulphur Springs, W. Va. “We kind of have to have a commitment as a group.”

The resulting decisions can be narrow or nonexistent, as when the court unanimously returned a major case on access to contraception to the lower courts. That effectively deferred a Supreme Court ruling on the matter for at least a year and probably much longer. The chief justice acknowledged that “it’s been subject to some criticism that you can put things off.” “Some people think that’s bad,” he said. “I think it has something to do with judicial philosophy. I think we should be as restrained in when we decide the issues when it’s necessary to do so. I think that’s part of how I look at the job.”

The contraception opinion was unsigned, but some sophisticated observers suspect that Breyer played a major role in setting it in motion. “If you believe the Supreme Court should decide all the major issues for the country, you’d like them all decided,” he said. “I happen not to believe that.”

Ginsburg, the leader of the court’s liberal wing, sounded less content with the current state of affairs Thursday at a judicial conference in Saratoga Springs, N.Y.

“Eight, as you know, is not a good number for a multimember court,” she said.

In his own remarks, Breyer said an eight-member court is capable of deciding most cases, supporting the point with statistics from recent terms.

“We’re unanimous 50 percent of the time,” he said. “Twenty percent of the time we’re 5-4, and half of those are kind of random, not what the press would call the usual suspects.”

That was just about correct, although the fraction of 5-4 decisions that split along the usual ideological lines in recent terms was more like two-thirds.

But Breyer’s larger point was true: There is no reason to think the court is likely to deadlock all that often.

The recent run of 11 decisions followed the general pattern. None were 4-4 deadlocks. Five were authentically unanimous, while a sixth was unanimous about the bottom line but divided over the rationale. One split 5-3, another 6-2.

The three remaining decisions were 7-1, with Thomas in dissent every time.