Ilya Somin has an op-ed at USA Today on the Obama Administration’s 9-0 losses in the Supreme Court:
Those of us who follow Supreme Court decisions spend most of our time debating the contentious issues that divide justices 5-4 along predictable ideological lines. Often, that’s where the loudest public debates are as well. Just consider the recent rulings on gay marriage.
But we might do well to pay more attention where the court rules unanimously, particularly when they go against the White House.
When a president pursues policies that require such expansive federal power that he can’t get a single justice to agree, something is probably amiss.
Such overreach, though, has become a part of our political culture. Administrations of both parties are often unwilling to accept constitutional limits on their authority.
Unanimous Supreme Court decisions are, statistically, much more common in reversals than in affirmations. The unanimous Supreme Court decisions Mr. Somin points out aren’t unique to the Obama Administration. It has been widely noted that the Roberts court has produced a much higher percentage of unanimous decisions than its predecessor. That may be due to the personality and style of Chief Justice Roberts (if I had written “the dread Chief Justice Roberts” it would have been my second Princess Bride reference today) or it may be due to the peculiar interpersonal dynamics of this particular court, or any number of reasons. That will probably something that will be the subject of law review articles for a century.
I think we ought to consider the possibility that it’s simply because White Houses are making more errors.