Justice William Brennan once remarked of the U.S. Supreme Court that “five votes can do anything around here.” Sadly, history has proven that aphorism to be true. In the early days of the Supreme Court, Chief Justice John Marshall somehow convinced all of his colleagues that it was inadvisable to dissent. What resulted was a steady flow of unanimous decisions largely written by Chief Justice Marshall that created the appearance of consistent consensus. To be sure, the legal world was largely deprived of the genius of Justice Joseph Story because of that arrangement that too often kept him out of the writing business of the Supreme Court, but there was real value in unanimity in the major cases of the era.
Comparing that type of unanimity in major cases with the muddled mess in narrowly divided decisions reveals why the Supreme Court works most effectively when it speaks with one voice. In Brown v. Board of Education, Chief Justice Earl Warren patiently and diligently worked to produce a unanimous opinion that would leave no doubt that the Supreme Court was committed to desegregation as a matter of constitutional imperative. Compare that to one of the most poorly conceived opinions in Supreme Court history, Lochner v. New York, where a closely divided Supreme Court relied upon substantive due process to enshrine the economic right to freedom from workplace regulations as an ineluctable constitutional mandate. Justice Oliver Wendell Holmes wrote a blistering dissent warning the majority of the error of its ways, and you know you’re probably on the wrong side of the constitution if Justice Holmes vigorously opposes what you’re doing. Indeed, it took thirty-two years and a full-blown constitutional court-packing crisis to clean up the mess that Lochner made.
Which brings me back to my humble role on the Michigan Court of Appeals. There’s a school of thought that an effective appellate judge is someone who waits for the right panel configuration to write the judge’s preferences into law, knowing that a second vote for any outcome is readily available. That’s not me. Some ideological judges may regard their work on the bench as painting on a blank canvas. I see myself as a technician, working to reach the correct result in every single case by faithfully applying precedent and neutral principles, no matter what my personal preferences may be. Some might characterize that approach as relegating me to the status of a pedestrian purveyor of judicial authority—neither a visionary nor a groundbreaker. But that view served me well as a business-court judge, and I’m now perfectly comfortable in that role on the Michigan Court of Appeals because I’m such a devout believer in judicial modesty.
The power of judicial review is a dangerous concept in the wrong hands. It can insulate policy preferences from the salutary process of debate, deliberation, and collective decision-making in our constitutional republic. Judicial activism through the extravagant use of the power of judicial review cuts off that entire process.
That’s why my commitment to judicial modesty discourages me from thinking about counting to two when I write an opinion for our court. Instead, I always do my best to count to three. When I am sitting with two colleagues who rarely agree on much of anything, I could easily write an opinion based on my personal preference, knowing that I’ll have a second vote no matter how I analyze the case. But I much prefer to write opinions that can garner the support of both of my colleagues, comfortable in the understanding that a consensus among those of us with divergent judicial philosophies almost certainly will be the correct answer to the issue presented on appeal.
In my first year on the Michigan Court of Appeals, I wrote only one separate opinion. It was a dissent in a case that was assigned to me in the first instance as the lead writer. When my colleagues and I discussed the case in our post-argument conference, I realized that my view was the minority approach. That left the three of us in the awkward position of deciding who would write the majority opinion. To my colleagues’ bemusement, I volunteered to write the majority opinion as well as my own dissent. I’m pleased to report that the majority opinion I drafted not only won the approval of both of my colleagues but also nearly convinced me to change my own vote. And that, in my view, is how an appellate court protects and preserves the rule of law.
So, when I am next up for election, if the voters are looking for a culture warrior who is ready to storm the battlements in developing precedent, I’m not their judge. But if the voting public wants somebody who will work tirelessly for consensus even when it is hard to find, I’m probably their cup of tea, even though I’ll never be part of a judicial Boston Tea Party. That, in my view, is what best sustains and fortifies the rule of law that we all rightfully cherish.