A Unanimous Court
What a remarkable situation is emerging on the highest court in the land. The Supreme Court issued five decisions yesterday, on topics including overtime pay for home-health aides, anti-tobacco litigation, the death penalty, employee pension plans, and the federal obligation to pay for the cleanup of toxic waste. And the remarkable thing is that, while there were some concurring opinions and quibbles over footnotes, all five cases were unanimously decided.
What's remarkable about it is that in was only last fall that Senate Democrats, left-wing advocacy groups like People for the American Way, and the editorialists at the New York Times were warning — hysterically, it would not be too much to say — that Justices Roberts and Alito were far outside the American legal mainstream. "The Court's balance may for decades be tipped radically in one direction," Senator Schumer said, explaining his vote against confirming Chief Justice Roberts.
The other senator from New York, Hillary Clinton, said in opposing Justice Alito, "This nomination could well be the tipping point against constitutionally-based freedoms and protections we cherish as individuals and as a nation. I fear that Judge Alito will roll back decades of progress and roll over when confronted with an administration too willing to flaunt the rules and looking for a rubber stamp. The stakes could not be higher. To be sure, Roe v. Wade is at risk; the privacy of Americans is at risk; environmental safeguards, laws that protect workers from abuse or negligence, laws even that keep machine guns off the streets; all these and many others are imperiled."
So what to make of the fact that, in the environmental case the court decided yesterday, Justices Alito and Roberts joined in an opinion for the entire court, written by Justice Thomas, siding against the Bush administration in ruling that the federal Superfund is obligated to pay for even a voluntary toxic cleanup? Or that Justices Alito and Roberts joined the unanimous opinion written by Justice Breyer, siding against Philip Morris's effort to get an anti-tobacco lawsuit moved from an Arkansas state court to a federal court?
Could it be that the Bush-nominated justices, and even Justice Thomas, aren't just pawns of the Bush administration or of corporate America but independent legal minds who are making a good-faith effort to apply the law to the issues before them? Or have the left-wingers on the court, Justices Stevens and Ginsburg, suddenly taken leave of their senses by joining five times with Justice Thomas, who, a New York Times "editorial observer" column complained just the other day, "regularly rules for the powerful over the weak, and has a legal philosophy notable for its indifference to suffering"?
Not all Supreme Court decisions since Justices Roberts and Alito acceded have been unanimous, of course, and there are points of law on which they disagree with their left-leaning colleagues. Some disagreements are to be expected. If, after all, a legal matter were entirely clear-cut, it would be unlikely to rise to the level of the Supreme Court in the first place. It is also possible for all nine justices to agree and to be wrong. But yesterday's five unanimous rulings are a reassurance that while the Congress may be polarized along partisan lines, the nine justices often see their duties to the law in similar ways.
