Unanimous SCOTUS Decisions Do Not Mean The Losing Side’s Arguments Were ‘Extreme’

We've seen a notable number of 9-0 Supreme Court decisions this term, but that doesn't mean that the side that lost was making an extreme or meritless argument.

Supreme Court Justices 2

With yesterday’s decisions on abortion clinic protests and the President’s appointment power, Jonathan Adler notes that we’ve had some extraordinary agreement among the Justices this term:

In Thursday’s other decision, McCullen v. Coakley, all nine justices concluded that Massachusetts’ abortion clinic 35-foot buffer zone law violated the First Amendment.  So here we have yet another opinion unanimous in the judgment.  That makes 48 out of 71 decisions thus far this term, or 67.6 percent.

I haven’t seen any SCOTUS statiscians — and yes there are people who keep close track of how big a majority is in each case, which Justice sides with which, and other matters — chime in on this, but this does seem like a fairly high number. Granted, a significant number of these cases are on areas of the law that are generally non-controversial and of little interest to anyone beyond the parties to the suit. However, a statistic like this does tend to back up the observation I made this past weekend about how, even at its worst, the two most ideologically opposed members of the Supreme Court agree with each other 65% of the time. That’s certainly better than you’ll ever find in Congress.

Of course, on Monday when the Court hands down its final two decisions — one in the Hobby Lobby contraceptive coverage mandate cases and the other dealing withwhether certain home health care providers can be required to unionize — we’re not very likely to see unanimous decisions. Indeed, the contraceptive coverage mandate cases are likely to be quite divided and include strong opinions and dissents on both sides. However, those will be the exceptions to what has been an extraordinary amount of  collegiality during this term.

The more interesting question is what these unanimous decisions, particularly in cases that are seemingly more controversial, mean and whether they mean that there was ever a real controversy at all. At The Volokh Conspiracy,  Ilya Somin points to two other unanimous decisions handed down this week, yesterday’s dealing with the Presidential Recess Appointment power and the cell phone search cases, and takes it as a rebuke to the Obama Administration:

Unanimous defeats do not in and of themselves prove that the administration’s position was wrong in all these cases. Sometimes, even a unanimous Court can be wrong. Still, when the president’s position in multiple major constitutional cases cannot secure even one vote on an ideologically and methodologically diverse Court that includes two of his own appointees, it is likely there is something wrong with the administration’s constitutional worldview. The mistakes cannot be attributed to low-level underlings. While initial litigation positions in a federal case may often be decided by relatively low-ranking officials, arguments advanced in the Supreme Court are usually approved by high-level lawyers in the Justice Department, the White House, or both. The latter can and often do forego arguments previously advanced in the lower courts.


It is a good thing that the Court – including its liberal Democratic justices – has rejected the administration’s more extreme claims. It shows that the system of constitutional checks and balances still has some vitality. But the enforcement of constitutional limits on government power cannot rely on the judiciary alone. Many important constitutional issues never get to court at all, such as the administration’s waging of an unconstitutional war in Libya. Others only do so after prolonged delays during which constitutional rights may continue to be violated.

For these and other reasons, executive and legislative branch officials also have an independent duty to respect constitutional limits on their power. They should not feel free to do anything the courts might let them get away with. And public and elite opinion should impose a political price on them when they fail to respect that obligation.

Somin’s colleague Orin Kerr pushes back on the idea that a unanimous loss means that the losing argument was “extreme”:

I think Ilya’s argument rests on an erroneous premise, that the result and vote count in litigation tells us whether the losing argument was extreme.

Consider the government’s argument in the cell phone cases. (For now, group federal and state governments together as “the government.”) The government’s lead argument relied straightforwardly on a Supreme Court precedent. In 1973, the Supreme Court had held in Robinson that a complete search of property on a person was always allowed incident to arrest. The government’s lead argument in the cell phone cases largely on that precedent. A cell phone is property on a person, the government argued; if Robinson allows a complete search of property on a person, it logically includes a cell phone. The government then had backup arguments for why the searches should be allowed even if the Court rejects Robinson.

, Further, it seems misleading to say that this argument was from “President Obama.” Ilya has some fun suggesting that Obama was the uniter, in that he personally brought the Justices together with his positions. But at least in the cell phone cases, the arguments likely were crafted mostly by career lawyers who have been in the government for a long time. The Bush Administration DOJ took the same position back when it existed, at least to the extent that the arguments of DOJ lawyers can be imputed to “the Administration.” And state prosecutors took the same position in their respective state courts and in Riley.


More broadly, I think the internal dynamics of the Justices are too contingent to draw easy conclusions from vote counts. Maybe my experience is quirky. But when I was a law clerk, I was struck by how a case that seemed very easy ex ante could somehow emerge 5-4 ex post. And the opposite was true, too: a very hard and close case ex ante could somehow emerge 9-0. The public would assume that the 5-4 cases were close and the 9-0 cases were simple and easy. But at least in my experience, the reality was sometimes far different.

I don’t have the law clerk experience that Kerr does, but it strikes me that he probably has the better argument here. Trying to fathom the reasoning behind whether a particular Supreme Court decision is 5-4, 6-3, or unanimous strikes me as being about the equivalent of reading tea leaves, in the end you end up seeing what you want to see. Even if a particular case does end in a unanimous decision, that does not mean that the opposing argument was not “warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law”, which is the standard that Federal and most state courts use to determine if a pleading is frivolous, and also serves as the basis for the legal ethics rules that govern such claims. It simply means that one side one and the other one last.

Perhaps the most famous example of this can be found in the Supreme Court’ s landmark decision Brown v. Board of Education, which overturned “separate but equal” doctrine established 58 years earlier in Plessy v. Ferguson. The parties arguing against the position taken by Thurgood Marshall and those who worked with him on that case were not making a meritless legal argument, they were making an argument based on a Supreme Court case that was nearly 60 years old and which, until recently, had not been seriously challenged in Court. In the end, though, Marshall and the NAACP Legal Defense Fund not only won the case but did so via a unanimous decision. In no small part, the Court’s unanimity was the result of Chief Justice Earl Warren and others basically lobbying their fellow Justices to join the majority in an opinion that they knew would have widespread social ramifications, which indeed it did. Plessy was overturned, which it absolutely should have been, but I don’t see that it makes any sense to claim that those who argued on the losing side of Brown were making an “extreme” argument

With reference to the two unanimous cases that Somin cited, I also think its a mistake to claim that the losing arguments were somehow “extreme” just because the result was unanimous.

In the cell phone cases, Riley v.California and United States v. Wurliethe Court was dealing with the question of how to apply long standing Fourth Amendment law to very new technology. As Kerr notes, there were good arguments on both sides of the cases at issue and, indeed, the courts below were split on the question: In Riley,California’s highest court had denied the Defendant’s argument that the warrantless search of his cell phone was unconstitutional, while Wurlie, the First Circuit Court of Appeals took the opposite position and reversed a District Court Judge who had taken the position that no warrant was required to search the Defendant’s phone. If three different courts below can reach two different conclusions on the same issue, then that seems to me as strong evidence against the assertion that California and the U.S. Justice Department took in these cases was “extreme.”

In Noel Canning, the Recess Appointments case, the Court below had indeed agreed with the argument that the President’s appointments were invalid because the Senate was not actually out of session when they were made. However, the issue that was presented in this case was so novel that it seems difficult to say that any of the arguments that the parties made were “extreme.” The Supreme Court had never directly dealt with the issues this case presented before, for example, and the only Federal Court case that anyone ever tracked down on the issue was a case brought near the end of the Bush Administration when President Bush used a recess appointment to make an appointment to the 11th Circuit Court of Appeals. When that appointment was challenged in Court, the challenge was rejected on the ground that ruling that the Constitution “does not establish a minimum time that an authorized break in the Senate must last to give legal force to the President’s appointment power under the Recess Appointments Clause.” This is, of course, the exact opposite of what the Court ruled yesterday, and as I stated in my post on the case I believe the Court got the decision correct. Given the fact that the Obama Administration based its argument on the exact same argument that the only Federal Court to rule on the issue had used less than ten years earlier, though, calling it “extreme” doesn’t really make much sense. Indeed, my initial opinion of this issue was that the appointments were not unconstitutional, but I came to change that view when presented with additional arguments.

 Legal arguments are, quite often, very intricate, fact dependent, and not immediately easy to figure out. That’s why we have an adversarial court system, to allow both sides to make their best arguments in favor of their respective positions and the judges to decide the matter. Those judges don’t always get the cases “right,” of course, and they sometimes sharply disagree with each other. Other times, though, they end up being unanimous as they have been in the recent spate of cases from the Supreme Court. That unanimity, though, doesn’t mean that the wining argument was self-evidently correct or that the losing argument was wrong and legally meritless. Characterizing them in that matter doesn’t really capture the nuances that exist in legal argument, especially at the highest level.

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Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Josh says:

    Between 1946 and 2013, the “average” case was decided 7-1.66, with about 37% of votes being unanimous, and 26% of votes being 9-0. I use “average” to mean that, among the 12,818 votes in the database I am referencing (http://scdb.wustl.edu/data.php), the mean number of votes for the majority is 7, and the mean number of votes for the minority is 1.66.

  2. C. Clavin says:

    Also…just because the SCOTUS is the final word doesn’t mean they are right. It only means they are the final word.

  3. grumpy realist says:

    Also in a lot of these 9-0 cases you get equanimity on the issue directly before the court and then a whole bunch of differing opinions as to how they get there. That’s where the meat is.

    Not to weary everyone yet once again, but this is exactly what has happened in the CLS Bank decision. The claims were thrown out, but there are several different arguments about what exactly was going on. It’s actually rather interesting in some of these IP cases–everyone thinks that the patent shouldn’t have been granted, but it’s HOW and WHY it gets thrown out….

  4. Cletus says:

    @C. Clavin:

    No, it means they are Right. Candidate Obama agreed too until he became president.

  5. rudderpedals says:

    It’s an overblown unanimity that happens to have the justices concurring in the outcome but viciously disagreeing 5-4 in the rationale. As I explained yesterday, split reasoning makes for uncertainty that we don’t need.

    Brown vs Board is nothing like this term’s opinions. There was a true unanimous opinion.

  6. Franklin says:

    @grumpy realist: As pointed out in an article on Slate yesterday, in both that case and the recess appointment case, Scalia was actually quite scalding towards the others in his brief. So much so that they read like dissents.

    EDIT: My mistake. It was the abortion clinic buffer zone case and the recess appointments case:


  7. C. Clavin says:

    No it does not.
    Hence the term, wrongly decided.

  8. C. Clavin says:

    Maddow made a great point about getting rid of this abortion buffer zone from inside their marble Temple where cameras aren’t allowed and with a plaza “buffer” where protesters aren’t allowed.

  9. PD Shaw says:

    1. I do not think you would look to the SCOTUS for whether an extreme position is being taken; the most extreme positions are often taken at the lower courts.

    2. If you feel as I do that the President has a duty to defend all federal laws, even those he/she may disagree with, then you have to accept the strong possibility that the President might lose cases, but still serve an important function in the system.

    3. The Obama administration, IMHO, has taken unwise positions in environmental and religious liberty cases that went too far, and in doing so created bad precedent for liberal points of view in these areas.

  10. steve says:

    According to Epstein, Landes and Posner, the majority of reversals are actually unanimous. (Read this late last night and hope I got it right.) The 6th and 9th Districts have the most reversals.



  11. PD Shaw says:

    @Josh: “the mean number of votes for the majority is 7, and the mean number of votes for the minority is 1.66.”

    I’ve been trying to figure out what that means. And I’m not sure it means anything. There are generally five ways a case can be decided: 5-4 / 6-3 / 7-2 / 8-1 / 9-0. (*) So, a completely random distribution of outcomes would be 20% of each, and a median/mean of 7 to 2.

    In that database, I looked at the distribution of votes in the majority:

    9 = 28.62%
    8 = 16.16%
    7 = 15.05%
    6 = 18.77%
    5 = 19.69%
    <5 = 1.75%

    Still not sure what this means, there is a bit of a bimodal distribution, but not as much as I might have guessed.

    (*) Assuming a nine-voting member Court.

  12. Grewgills says:

    @PD Shaw:

    (*) Assuming a nine-voting member Court.

    Given the numbers and assuming his math is right, that would not be a safe assumption. That would indicate more 8 or 7 justice opinions than I would have guessed though. I can only remember a few cases of justices recusing themselves and those were a big deal.

  13. steve says:

    Assume even distribution. 9x.2+8x.2+7x.2+6x.2+5x.2= 7. The math works but it is not very meaningful.

  14. Pinky says:

    Not to belabor a point here, but…

    Somin implies that the administration was rebuked for being extreme in the NLRB and cell phone cases. Kerr responds by defending them in the cell phone case. I think we’re seeing the the sign at the political amusement park, “you must be at least this honest to ride the rides”: the NLRB appointments were indefensible.

  15. Jenos Idanian #13 says:

    Interesting factoid here: According to the National Review, this makes 13 times that the SCOTUS has ruled unanimously against the side taken by the Obama administration since 2012.

  16. Tyrell says:

    I would like for the Supreme Court judges to be more accessible and public. Hold press conferences, appear on news and talk shows, write columns. They could explain more about their decisions and could put this in everyday language. They would also take questions from the audience. This could really bring more understanding of their reasoning and thinking. They are too closed off. I would like to get their opinions about these famous trials: Booth conspirators, Lindbergh kidnapping, Nuremberg war trials, James Earl Ray trial, the Simpson “trial” debacle, and the equally ridiculous Anthony verdict. Are there trials that they would love to have presided over ?
    The people seem to always be kept in the dark about how they arrive at their decisions.

  17. Pinky says:

    @Tyrell: Interesting. I know that the justices stay closed-off out of fear of discussing potential future cases, but there really is a problem with how we see them. We think of them as political rather than judicial. And yeah, there’ve been times when their decisions were more political than judicial, and I don’t think the judicial philosophy of the activist side would hold up too well under scrutiny. I guess you could say that the opinions themselves are the insights into their thinking, but most of them are not written for dopes like me. But maybe the problem lies with me rather than them: there are a lot of fields I have no expertise in, and I wouldn’t expect the top astrophysicists or composers to explain themselves in a way that made perfect sense to me.

  18. Grewgills says:

    @Jenos Idanian #13:
    That would perhaps be interesting if they disclosed their rubric for ”the side taken by the Obama administration” and compared that to the total number of cases before the court in that time where ”the side taken by the Obama administration” won.

  19. Robert Levine says:

    Some of the enthusiasm on the right for the “extreme arguments” meme is because it fits so well with the overall “tyrannobama rex” idea. There’s no question that some of the arguments made by the Obama administration are pushing the envelope; the idea that books could ever be banned is one. But that one was hard to avoid in the context of defending that particular flawed law about campaign reform. It’s not clear to me that an administration’s lawyers have an obligation to do anything but to do their best to get the courts to agree with the administration’s position; the idea that they should pull their punches in order not to be “extreme” seems contrary to the adversarial process.

    As I recall, the Bush administration made some pretty extreme arguments as well. It would be very hard to judge which made more extreme arguments (or extreme arguments more frequently) without a good deal of impartial research, which we’re not likely to get. I suspect that both administrations were forced into interesting legal positions in part because of the nature of divided government in a time of extreme partisanship.

    The Noel Canning case is a good example; oddly, in a recess apointments case during the Bush administration, an amici brief led by Edwin Meese suggested that the relevant court look at the constitutionality of the filibuster being conducting by the then-minority which led to the recess appointment. It shouldn’t be a question of whose ox is being gored, but generally that’s how it seems to turn out.

    In the Noel Canning case, it doesn’t seem that the administration’s position that the pro forma sessions were a sham was unreasonable on its face. The idea that substantive business was done during those sessions doesn’t pass the laugh test. I don’t think the decision addressed that issue; the ruling was based on the concept that the Senate, and not the President, decides when the Senate is in session or not – which is also not unreasonable