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More than once in recent months, Chief Justice John Roberts Jr. has said that one of his goals is to achieve greater unanimity on the Supreme Court — even if it means deciding cases narrowly. “There are many cases we get that can be decided on a number of different grounds,” Roberts told the conference of the U.S. Court of Appeals for the 9th Circuit in July. “If there’s one where it’s 8-1 or 9-to-nothing, and another where it’s 5-4, I think it’s better to decide on the former ground and let it go at that.” Last week it became clear that the Court is not even unanimous on whether Roberts’ goal is realistic or worth striving for. During a public debate on Dec. 5 co-sponsored by the American Constitution Society and the Federalist Society, Justices Antonin Scalia and Stephen Breyer were asked about Roberts’ aspirations. Scalia started laughing and said, “Lots of luck.” More seriously, he said of unanimity, “Of course that’s desirable, and I think we work hard to achieve it.” But Scalia went on to suggest that unanimity isn’t all that it is cracked up to be. “You can get more agreement by deciding less. If you want to decide almost nothing at all, and decide the case on such a narrow ground that it will be of very little use to the bar in the future, you can get nine votes.” The job of the Court, Scalia continued, is to “help the bar” determine what the rules are in a disputed area of the law. “You want it to take on the big question.” Deciding the case on “a little technicality,” he said, “won’t help the bar at all.” Breyer then weighed in, also sounding dubious about Roberts’ goal. “You don’t want nine on an opinion for the sake of getting nine on an opinion.” Before the discussion moved on, Scalia spoke again to clarify his views, “lest I be misquoted or misunderstood.” He said, “I am not against narrow opinions. . . . There are a lot of good reasons for narrow opinions, but one of them is not to get nine votes. That’s all I’m saying.” Breyer and Scalia have debated before, but their conversation on issues of constitutional interpretation and judicial activism before members of the two groups was unusually sharp and lively. Breyer said the job of judges is to conduct “boundary patrol” between the branches, but it was safe to guess that Scalia thinks Breyer does more than that. Asked by moderator Jan Crawford Greenburg of ABC News whether Breyer was an activist judge, Scalia said with a smile that he would never say that “to his face.” Scalia also confirmed what Court watchers have guessed at for years: that with his bold, sometimes bombastic dissents, he no longer aspires to win over his colleagues or the bar. “I don’t hope to persuade you. It’s too late for you guys,” Scalia said with resignation, adding, “Maybe the next generation.”
Tony Mauro can be contacted at [email protected].

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