Slate told us yesterday how to interpret those two nine-to-nothing SCOTUS rulings: They only seemed unanimous. The front page headline of an article by Laurence H. Tribe reads, “The Justices Weren’t Actually Unanimous in Those Unanimous Decisions.” The reason? There were concurring opinions that disagreed with the rationale behind the majority opinion. Except, concurring opinions have been prevalent in SCOTUS decisions since the era of the Marshall Court (1801-1835). Long have justices been able to agree with an outcome while strongly opposing the majority opinion.
On Wednesday, the court decided Riley v. California, which . . . unanimously held that police cannot search the cellphones of people they arrest without a warrant. On Thursday, the court handed down two of its major opinions of this year—National Relations Board v. Noel Canning (about the president’s recess appointment power) and McCullen v. Coakley (about abortion clinic buffer zones). And, in a development that deserves to make headlines, both judgments were unanimous.
What should we make of all this unanimity?
Well, certainly not that the rulings were actually unanimous.
The simple answer is that unanimity means that the court is largely in agreement. Sometimes this is true, as is the case in Riley. But that answer misses a key fact: Even when the court agrees 9–0 over a case’s holding, it can divide, sometimes sharply, over the reasoning and rule to be applied. And it is precisely this sort of division that we see in both Noel Canning and McCullen.
While language like Scalia’s sometimes appears in dissents, it isn’t common in concurrences. The fact that he took the rare step of quoting at length from his concurrence from the bench leaves me feeling that his concurrence is in fact a dissent in sheep’s clothing.
To be fair, Tribe does acknowledge that concurrences are agreements with the ruling, not with the reasoning. He concludes,
These cases make clear a point that I’m reminded anew of every term: the peril of counting votes rather than reading opinions. Too many observers (though, thankfully, nobody at our Breakfast Table!) fall prey to the temptation to draw conclusions based on vote counts alone. . . . I suspect this is the case in Noel Canning and McCullen, unanimous opinions with fierce concurrences signal only that two very different lines of judicial reasoning happen to lead to the same outcome. No more, no less.
So what is this article trying to prove?
— Celina Durgin is a Franklin Center intern at National Review Online.