Consensus reigns in high court's early decisions

The Associated Press
Friday, March 11, 2011; 3:24 AM

WASHINGTON -- A couple of angry dissents aside, the Supreme Court has shown a remarkable degree of consensus in the nearly two dozen opinions issued so far this term.

Fifteen of the 23 decisions have been unanimous and four have drawn just one dissenting vote. No case has ended in a 5-4 split in which the liberals and conservatives are on opposite sides. But the term is young, with 50 or so decisions to come.

Broad agreement is not that unusual in the court's early decisions. Indeed, a major reason they're issued more quickly is that there is general accord about the outcome.

But the decisions to date include four unanimous opinions in cases in which the U.S. Chamber of Commerce supported the losing side. The cases involved claims of workplace discrimination, retaliation concerning alleged discrimination, an automaker's negligence involving seat belts and corporate rights under the federal open records law. The votes are notable if only because some critics have complained that the court - the conservative-leaning justices, in particular - is too business-friendly.

Robin Conrad, head of the chamber's legal team, said too many cases important to the business world have yet to be decided, including a major class-action sex discrimination lawsuit against Wal-Mart Inc., to read too much into the early returns. But Conrad said, "I have always been critical of the claim that this court has knee-jerk, pro-business inclinations."

The strongest words so far have been in dissents from Justices Samuel Alito and Antonin Scalia. Alito, the lone voice opposing the court's ruling in favor of protesters at military funerals, wrote that his colleagues were sanctioning a "malevolent verbal attack" on a dead Marine and his grieving family.

Scalia, in a case about the constitutional right to cross-examine witnesses, said the majority engaged in a "gross distortion" of the law and a "vain attempt to make the incredible plausible."

The justices also have so far largely managed to avoid 4-4 splits in cases in which Justice Elena Kagan did not participate because of her previous Justice Department job. The only exception in the 15 cases decided to date without Kagan has been the dispute between the Omega watch company and Costco. Without Kagan, the court's 4-4 vote left in place a lower court ruling that Costco violated copyright law by selling Omega watches at a discount without the Swiss watch maker's permission.


Justice Ruth Bader Ginsburg is now the court's oldest justice, after the retirement of John Paul Stevens at age 90. Ginsburg, who turns 78 on Tuesday, also is the fastest writer. She has turned out four majority opinions so far, the most of any justice.

Every justice has produced at least two majority opinions, except for Justice Clarence Thomas. He has yet to write any opinions for the court, but Thomas has weighed in with a half-dozen dissenting and concurring opinions.

How quickly an opinion is issued depends on several factors, including how quickly it is written, whether there are any dissents and, if so, how fast they are produced. Drafts flow back and forth among the justices. Sometimes they sign on to an opinion right away. In other cases, they suggest changes. The majority opinion and dissent often take note of each other. All this takes time, and the hardest cases can go six months from the time they are argued until a justice reads a summary of the opinion in the courtroom.


March and April are big birthday months at the court. Scalia is celebrating his 75th birthday on Friday with a trip to Switzerland and England. Next month, Kagan will turn 51 and Alito will be 61. Two retired justices also have their birthdays coming up. Sandra Day O'Connor will be 81 and Stevens will mark his 91st birthday.



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