Supreme Court Unanimity

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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14 Responses

  1. Dan Cole says:

    Gerard: I’m not exactly sure whether you are talking about a case’s legal force or political salience. But Abrams v. US (1919) was a 7-2 decision that is much better remembered now for Holmes’ dissent (joined by Brandeis). I suppose the political salience of the case was diluted to some extent by the fact that it arose to the Court after WWI had ended. And I have no idea whether any effort was made to obtain a unanimous decision on an important issue concerning the limitations of free speech. Nevertheless, the dissent unquestionably (or so it seems to me) diluted the force of the majority’s ruling.


  2. Orin Kerr says:

    I’m not sure what you mean by “failed,” but a dissent can help stir up opposition to a decision. See, e.g., Ginsburg’s dissent, read from the bench, in the Ledbetter case.

  3. Gerard says:

    Sorry–I should have made clear that I was referring to constitutional cases, not statutory ones.

    Failed=quickly overruled or limited to its facts.

  4. Orin Kerr says:

    Gerard, maybe I’m just missing something, but I thought the concern with dissents in cases like Brown was about political backlash. If so, why should the test for failure be subsequent judicial treatment?

  5. JHP says:

    Forty-one years after Roe v. Wade, you have to ask that question? The desire to overturn what was a 7-2 decision has overshadowed the political agenda of this country for decades. Subsequent decisions chipping away at Roe’s core suggest it has failed as an opinion. The presence of dissenters in the original opinion fueled the political argument that Roe was fashioned cut from whole cloth, not from the Constitution itself.

    The presence of three dissenters in Korematsu v. United States undoubted contributed to the subsequent perception, now the accepted wisdom, that the case was wrongly decided.

  6. Gerard Magliocca says:

    Roe would have been less controversial now if it had been unanimous? Really?

    Orin–What I’m asking is whether there is any case where the presence of a dissent made the resulting backlash worse to the point that the Court’s opinion was rejected or significantly curtailed. Now I can think of one example (Schechter Poultry) where unanimity might have convinced the President to back down, but I’m hard pressed to think of the opposite situation actually occurring.

  7. Howard Wasserman says:

    Would Bush v. Gore have gone down better if it had been unanimous? Would Democratic/liberal outrage have been more muted if even Ginsburg, Stevens, and Souter thought the decision correct?

  8. Joe says:

    “Subsequent decisions chipping away at Roe’s core suggest it has failed as an opinion. ”

    A lot of cases must have “failed’ though since many cases have somehow “chipped” away earlier cases in various ways. I don’t know what “failed” means here. I wonder if the tens of millions of girls and women who had LEGAL abortions since Roe think it was a “failure” that abortion is broadly legal even though it is burdened more than it should be.

    Also, the “Roe caused it” trope has been addressed by Linda Greenhouse and others. As to “full cloth,” one dissenter joined in multiple opinions in the right to privacy line including Griswold. Many who oppose Roe itself are not against the right to privacy, of course, which make Justice Rehnquist’s broad dissent not to their liking really. The opinion was 7-2 with two Nixon appointments joining in. The existing anti-choice movement would have grew either way.

  9. Bill Araiza says:

    Gerard: I’m not completely sure this is responsive, but I wonder if Stone’s dissent in Gobitis made it possible for other justices to reconsider their positions, with the result that the Court turned around only three years later in Barnette. Maybe that change would have happened anyway, but I wonder if it would have been significantly harder for the Court to reverse itself if Gobitis had been unanimous?

    • Joe says:

      That’s an interesting example. A few justices were new to the Court and they later noted that being new and the little time they had to ponder the dissent led them to join the majority without properly thinking about it. Three justices quickly voiced their opposition before Barnette, which along with newcomers (Jackson, e.g., not on the bench when Gobitis was decided) provided an opening for the lower court to rather brazenly assume Gobitis was on weak ground and rule for the students. Finally, Stone had weight since not only was he a Republican nominee, but he had experience as someone who was on a conscientious objector status review panel during WWI.

  10. Gerard says:


    That is a good point. Thanks.

  11. Brian Clarke says:

    How about Bowers v. Hardwick (1986)? A sharply divided 5-4 opinion with 2 dissents (Blackmun, joined by Brennan, Marshall and Stevens; and Stevens, joined by Brennan and Marshall). Fairly quickly overruled (in con law terms, anyway) by Lawrence v. Texas (2003) in a way that largely adopted the views of the dissenters in Bowers.

  12. Scott Dodson says:

    It’s kind of hard to prove causality. For example, Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), had only 7 in the majority, but it’s quite probable Jackson would have disregarded it even if unanimous.

  13. Michael Plaxton says:

    Your question hints at the answer. We can generally rely on the government and private actors to follow the narrow ratio of a high court judgment. But sometimes the court wants to settle more than that – it wants to set down broad legal rules or principles that should inform decision-making in a wide range of contexts in the future. In such cases, the court will understandably want to discourage actors from reading the ruling in a narrow way – if they do, the decision could be said to “fail”. The court, to avoid or minimize that possibility, will want to send an unambiguous signal that the (strictly speaking) obiter parts of the opinion cannot be seriously contested in the future. That may only be necessary, though, if there is a significant risk of “narrow reading”. So, yes, Roe v Wade is a good example of a case that needed to be unanimous to truly succeed, as was Brown.