Recently the Supreme Court ruled that California could not ban church services indefinitely.
While I agree with the decision as good law (I practiced law for 20 years), I have a couple of issues with it: first, not all justices prioritized application First Amendment (religious liberty) standards, and second, it was decided 6-3.
Back in 2013, I wrote “Why 5-4 Decisions Are Unpatriotic.” Five to four decisions are still unpatriotic, but so are those that are decided 6-3, 7-2 and 8-1, for that matter.
The reason that I think this, and you should, too, is that non-unanimous opinions are usually divided along party lines: justices appointed by Democrats usually part company with justices appointed by Republicans. When this happens, the Supreme Court is not so much applying law as mimicking what Congress did, or what Congress would do if it fulfilled its responsibility to govern.
This is why appointments to the Supreme Court are so hotly contested, because it has come to function as a sort of super-legislature: a much smaller and less accountable congress, as it were. Call me idealistic, but the Supreme Court should decide the law, not politics.
Requiring unanimous decisions (with room for concurring opinions) would correct the power imbalance that currently favors the Court, and would put the actual act of governing back in the hands of Congress, which is all too eager to have unelected justices decide difficult matters so that it can campaign without having to explain its political baggage to voters.
Some will disagree, because the Court is now seen as protector of those liberties that Congress and the States might not guard so closely. But if nine people eminently qualified can’t agree what liberties to guard, and how to guard them, is it really guarding anything? Are we really better off with divided decisions in any real fashion beyond the next vacancy to be filled?
Consider three simple fixes to how government functions:
- Require unanimous Supreme Court decisions
- Eliminate executive orders
- limit congressional terms.
Think about it.
[Addendum: I would add the additional fix of eliminating, somehow, the current state of government by bureaucracy. Regulatory agencies, like the Supreme Court, are the way that elected officials pass off responsibility and accountability to govern, and to answer to the people for how they govern.]