Will The Court Admit When Its Cases are “Close”?

Last month, the Supreme Court issued a 5-4 decision in Navarette v. California, where police had pulled over a driver based on an anonymous 911 call.  In an unusual face-off, Justice Thomas wrote the majority opinion upholding the stop, while Justice Scalia wrote the dissent.  The case is interesting for a number of reasons, but what struck me most was that the majority opinion contained a simple statement that should probably appear more often in the U.S. Reports:  “this is a ‘close case.'”

It’s easy to imagine why the justices might be reluctant to admit that they sometimes make close calls.  For one thing, doing so would allow the dissent to strike a strident tone (“It’s not even close!”)  and thereby carry away a rhetorical victory.  For another thing, a close call can easily be mistaken for an uncertain decision.  And nobody is happy to hear that the people making decisions with massive consequences aren’t even confident that they’re getting it right.

But admitting that a case is close has its own advantages — honesty, for instance.  Given that the Court deliberately hears the most challenging legal issues, it stands to reason that a significant number of those cases would be hard to decide, with small differences marking victory or defeat.  Yet when the Court divides itself into accusatory majority and dissenting opinions, the difficulty of the case at hand seems to go unappreciated, undermining confidence in both sides. (For recent scholarship in a similar vein, see this new piece by Eric Berger. H/t: LTB).

In the weeks ahead, the Court is going to decide some major issues that are bound to be controversial and that have already spawned enormous debate and disagreement.  How often will the Court admit: “this is a close case”?

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