Saturday, July 14, 2018

Constitutional Education Opportunity – Kavanaugh Confirmation

The impending confirmation hearings for Brett Kavanaugh’s nomination to the U.S. Supreme Court promise once again to be an education bonanza for the American people – as long as Senators do not muck it up with too much partisan bickering.

The Supreme Court history can be broken down, according to Cass R. Sunstein’s “Unanimity and Disagreement on the Supreme Court” into two periods: 1800-1941 and 1941 to present.  The earlier period was one of great harmony with a very high rate of unanimous decisions and almost no dissenting opinions.  After 1941 there was a major shift to a Court that was less based on consensus and more like “nine separate law offices.”  Consenting opinions, dissents, and 5-4 decisions were far more common.

Sunstein attributes much of this change and the level of harmony and consensus to the occupant of the Chief Justice seat.  Harlan Fisk Stone held that position in 1941 and brought about the present contentious era.

But the Court is not as divided as one might think.   Politicians and the media focus on the split decisions; however, over half of the Court’s decisions are unanimous.  In recent years as much as 63% were unanimous.  Split (e.g. 5-4) decisions tend to be less than 20 percent in any given year.

So, there is a significant thread of consensus within the Court even in these contentious times.   Those unanimous decisions result from Justices applying clearly stated law and jurisprudence to highly technical questions.