OEDEL: Are 5-4 rulings bad?

June 30, 2013 

Last week, the Supreme Court issued 5-4 decisions in three high-profile cases. Those rulings prompted astute WMAZ-TV reporter Randall Savage to ask me a probing question. Is it bad for the country that such decisions are decided 5-4?

I didn’t answer his question fully in that setting. Here’s a more complete response.

It can be surprisingly good for our country and legal system when a difficult case can successfully be resolved by a narrow margin, so long as the final decision rests on a sufficiently shared, coherent rationale.

Three factors support that view.

First, the public benefits from getting informed guidance on profound legal problems. The “big” cases are usually so important because they highlight inherent conflicts between core competing values.

Congress has the natural habit of getting stalemated when it gets close to big issues, too often leaving tough questions to languish unaddressed. The High Court has less flexibility to avoid dealing with the few tough matters that it agrees to hear. Even a 5-4 court vote typically produces something that Congress is increasingly incapable of producing: a workable, respected decision on a difficult issue.

So the first virtue of a well-constructed 5-4 court decision is that it produces an authoritative, workable resolution.

The second advantage of 5-4 decisions stems from the fact that, behind the scenes, they’re typically argued hardest. The court’s internal dance of spirited discussion and sharing of drafts has the effect of moderating the winning position in order to assemble the critical five votes, while generating better answers to opposing counter-arguments. We tend to get less extreme, more careful decisions in the hardest cases. That’s appropriate when the value judgments are so close to begin with.

Third, the court’s divisions often reflect divisions in society about the questions at stake. That suggests that the justices, though appointed for life, are actually lots more democratically grounded in the public’s reality than you might think. Photos of those stern, distant oldsters in their imperious black robes can be misleading.

By the measures I cite -- agreement by five thoughtful justices producing decisiveness, argument-tested moderation and sensitivity to the public’s views of the competing values at stake -- the three 5-4 decisions last week were good.

The Windsor decision, striking down part of the federal Defense of Marriage Act, found five justices acknowledging that people married in their states have a constitutional right of personal dignity associated with their marriages. The decision also reflects a deep-rooted presumption of “federalism,” meaning here that states should be allowed leeway to define marriage for their residents without undue federal interference.

In the decision about California’s Prop 8, a different coalition of the court, this one including Justice Antonin Scalia and Chief Justice John Roberts, produced a narrow ruling restoring gay marriage to California. It was on technical grounds that won’t extend to other states.

So the decisions together allow states experimenting with gay marriage to continue to do so, while letting other states alone. The two cases calm, for now, the seemingly intractable questions of gay marriage enough to permit the most vocal partisans to feel genuinely heard.

Likewise, the Shelby County decision striking Section 4 but leaving Section 5 of the Voting Rights Act provided a workable answer to an act that Congress had inartfully “updated” in 2006 -- while bizarrely relying on pre-1975 data. The court’s decision freed nine states, including Georgia, from endless federal presumptions of bad-boy status.

Many will reasonably disagree with the decisions in these cases, but when 5-4 rulings like these are as carefully and moderately crafted as these were, the critics would be lots unhappier with the results if one view controlled without any restraint.

All 5-4 rulings aren’t created equal, though. When Chief Justice Roberts almost single-handedly cooked up his superpower theory of taxation to break the tie in last year’s fractured health care ruling, it violated the rule that a good 5-4 opinion should be based on a central logic shared by five justices, a rationale that out-competes the alternatives.

Still, when 5-4 rulings are well constructed, they can be very good indeed.

David Oedel teaches constitutional law at Mercer University.

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