Reviewing Fulton and The Dangers of Manufactured Unanimity
Emily Johnson | July 2021
(Left to right) Philadelphia in 2012; the Roberts Court in 2020
espite pervasive political polarization in American society and our political institutions, unanimity on the Supreme Court is far from rare. Between 2000 and 2018, an average of 36 percent of all cases resulted in unanimous decisions.
By contrast, only a mere 19 percent of cases resulted in a 5-4 split, notwithstanding the widespread public perception of a politically divided and ideologically driven Court. Proof of rising consensus lies in the fact that the Court achieved unanimity in 90 percent of cases in 2013 and 2016, which scholars attribute to Chief Justice John Roberts, who is known to foster compromise.
Although unanimity itself is quite common, rulings without dissent in cases that are particularly controversial still seem unlikely, as it’s no secret that Supreme Court justices have partisan leanings. Considering that the current ideological makeup of the Court leans conservative by a 6-3 margin, even with the Chief Justice as the modern-day swing justice, one would expect at least some division in a case involving the intersection of the freedom of religion and LGBTQ rights.
But political ideology proved irrelevant in Fulton v. City of Philadelphia, a case decided in June of this year with Chief Justice Roberts’ opinion commanding the vote of all eight of the other justices. The primary controversy at stake was the extent to which the First Amendment’s Free Exercise Clause is upheld in the face of claims of discrimination against LGBTQ individuals.
The justices were specifically tasked with deciding whether a Catholic foster care provider, Catholic Social Services (CSS), violated the City of Philadelphia’s anti-discrimination laws in its refusal to certify same-sex couples who wanted to become foster parents. Ultimately, the justices ruled in favor of Catholic Social Services. According to the majority, the City of Philadelphia placed a constitutionally impermissible burden on the religious exercise of CSS. The City’s interest in maintaining a firm anti-discrimination policy was insufficient to allow for the curtailment of religious freedom, even at the expense of allowing for discrimination against potential LGBTQ foster parents.
That pronouncement constituted nearly the entire fifteen-page opinion, an opinion considered brief relative to the Supreme Court’s typical output. But Fulton involved more legal issues than just the free exercise of religion. In fact, the majority only touched on one of the three outstanding questions presented in the case.
Missed Opportunities and Conflict Postponed
Beyond the free exercise claim, Fulton could have considered the freedom of speech or revisited the precedent established in the landmark 1990 case Employment Division v. Smith.
The possible speech violation lay in the fact that the city conditioned Catholic Social Services’ involvement in the foster care system on the agency making statements and taking actions that conflicted with its members’ religious beliefs. This speech question raised a significant First Amendment issue, yet the Court declined to weigh in, reasoning that it would be unnecessary to address this question because the case had already been settled through the lens of free exercise.
Furthermore, the Court declined to revisit Employment Division v. Smith, notwithstanding the parallels involving the relationship between the state, employment, and religious freedom. In Smith, a 6-3 majority held that a state can deny unemployment benefits to workers fired for illegal drug use even when the drugs are used for religious purposes, as long as the state action is “neutral” and “generally applicable.” The Court’s refusal to reconsider Smith can be seen as constituting a basic form of endorsement of the case’s precedent, despite the fact that the justices believed Fulton fell outside the purview of Smith: Philadelphia’s anti-discrimination laws were not deemed neutral and generally applicable. Fulton had the potential to overturn three decades worth of precedent, yet the Chief Justice instead kept the opinion narrow and limited in scope.
Jurisprudence and the Necessity of Political Legitimacy
There appears to be little doubt as to why Fulton was decided with such precision. The consideration of a smaller amount of precedents and legal standards leads to less room for disagreement among the justices. Although dissent is healthy at every level of government in a democratic society, there is something particularly salient about a unanimous decision when a controversial issue is at stake. For example, former Chief Justice Earl Warren delayed issuing a ruling on Brown v. Board of Education until he could convince all justices to sign on to his opinion, knowing that a unified Court sent the most forceful message.
Fulton is nowhere near as historically consequential as Brown and is additionally much more of a technical decision. Yet both cases are examples of unanimous decisions whose very unity may have served to assuage or repress concerns over cultural and partisan polarization. Here we see a potential social function served by the Court: in finding common ground, the justices might serve to illustrate a civility and compromise that appears to be absent from our political institutions today.
Despite both cases acting as examples of civility and compromise, an important distinction must be made between the unanimity in the Brown Court and that in the Fulton Court. Brown was released as a single majority opinion with neither concurring nor dissenting opinions filed. On the other hand, despite the absence of dissent, Fulton received much more nuanced commentary from the justices. Justice Barrett filed a concurrence, joined by Justice Kavanaugh and Justice Breyer, in part. Justice Alito filed a separate concurrence, joined by Justice Thomas and Justice Gorsuch. It is worth noting that this concurrence spanned 77 pages, compared to the 15-page majority. Justice Gorsuch filed yet another concurrence, joined by Justice Thomas and Justice Alito.
It is difficult to regard a case decided 9-0 on paper as truly unanimous given the clustered nature of the Court’s output. Might Roberts have painted over crucial and comprehensive divergences in opinion among the justices in his effort to maintain the Court’s political legitimacy?
Finally, beyond the confusion created in the wake of manufactured unanimity, there are consequences associated with failing to address significant legal questions. Unanswered questions lead to disputes down the road when the Court does not send a clear message to the legal community. While narrow opinions are convenient in the short run, especially for cultivating agreement, they are a sort of band-aid solution in that the Court will need to address the unanswered questions eventually. Therefore, considering the Court’s already highly limited docket, a more efficient opinion would leave fewer issues outstanding, even if it results in a non-unanimous ruling.
Fulton thus brings with it consequences and confusions looking ahead in First Amendment jurisprudence. The Court appears to have avoided several integral legal questions involving free exercise, Smith, and even free speech. Only time will tell the degree to which such a lack of clarification might harm American political discourse down the road.