United States v. Riverside Bayview Homes

Secondary Discussion Question 4

The Reporter’s Syllabus of the case ends with the statement, "White, J., delivered the opinion for a unanimous Court." Are the opinions of the Supreme Court typically unanimous? What can we infer about this case from the fact that the nine Justices all agreed? (You can tell that all nine agreed because the Reporter’s Syllabus does not state that one or more Justices did not participate in the hearing or decision of the case.)

Are the opinions of the Supreme Court typically unanimous?  Between 1953 and 1990, more than one third of all cases formally decided by the US Supreme Court were unanimous opinions.  Whether that makes unanimity "typical" presumably depends on exactly how one defines "typical," but it is clear that unanimity is common, but not as common as divided opinions of the Court. 

What can we infer about this case from the fact that the nine Justices all agreed?   The figures (and implicit) definitions in the paragraph above are from Thomas R. Hensley and Scott P. Johnson, Unanimity on the Rehnquist Court, 31 Akron L. Rev. 387 (1998). Hensley and Johnson argue that a variety of other statistics and definitions show that, during the first five years of the Rehnquist Court (the October 1986-October1990 Terms), a case was more likely to be unanimously decided by the US Supreme Court if the decision was routine or unimportant, if the ruling was a liberal one, if the case involved interpretation of a federal statute or federal court's precedents, if the case did not involve civil liberties, and when relatively little time elapsed between the oral argument and the issuance of the decision.

The Hensley-Johnson article has something to say about unanimous cases during the early years of the Rehnquist Court.  Perhaps those conclusions would also hold with respect to the Burger Court as a whole (October 1970-October 1985 Terms), or to the Term in which the Court decided Riverside Bayview Homes (October 1985 Term), or to Riverside Bayview Homes itself.  Hensley and Johnson don't provide enough information about their definitions in their article for me to know if Riverside Bayview Homes was a routine case, or whether it was a liberal case.  The case did involve interpretation of a federal statute and did not involve civil liberties.  The case was decided on December 4, 1985, after oral arguments on October 16, 1985, which I would guess with a fair degree of confidence was a shorter intrerval than was typical that Term.

{Note: An article by Harold J. Spaeth, Consensus in the Unanimous Decisions of the U.S. Supreme Court, 72 Judicature 274 (1989), examines the Warren Court (October 1953-October 1969 Terms) and the Burger Court in depth.   That article defies ready summary, however.}

One thing worth noting about Riverside Bayview Homes is that it also produced a unanimous decision in the Circuit Court--unanimous, but unanimous in the other direction.  Three judges of the Sixth Circuit, lifetime appointees nominated by the President of the United States and confirmed by the United States Senate, held that the land owned by Riverside Bayview Homes did not fall within the definitional limits authorized by the Clean Water Act.  The Supreme Court unanimously reversed their decision.

If Riverside Bayview Homes was a unanimous opinion of the Supreme Court because it was an easy case, then the three judges who sat on the Riverside Bayview Homes panel all got the wrong answer to an easy case.  (The District Judge, by the way, got the "right" answer, at least in the sense that the Supreme Court reversed a Sixth Circuit decision that in turn had reversed the District Court.)   "Nobody's perfect," as the character of Osgood Fielding III (Joe E. Brown) says at the end of Some Like It Hot when he discovers that his fianc(e?), played by Jack Lemmon, is a man.  Perhaps we can just chalk up the Sixth Circuit's ruling to human imperfection.

The other possibility is that Riverside Bayview Homes was not an easy case, but that somehow the Supreme Court nonetheless unanimously resolved the case in the opposite way from the Sixth Circuit.  Perhaps it was a tricky case, and all nine Justices just barely resolved the trickiest part in one direction, while the three Circuit Court judges had just barely resolved that trickiest part in the other direction.

(Thanks go out to Kent Olson of the Law Library for finding the articles on unanimity, as well as providing a cool chart thereon that has not yet been converted into machine-readable form.)

One possibility not raised above, by the way, is that Justice White is more likely to deliver an opinion for a unanimous Court than other Justices.  This could happen in at least two ways.

First, Justice White could be so persuasive that his opinions were more likely to convince the other eight Justices to join his opinion than were the opinions of the other Justices were likely to persuade the other eight Justices in those cases to join those opinions.

Second, Justice White could be no more persuasive than any other Justice, but turn out to be the author of the kind of case that is inherently more likely to be unanimous than the kinds of cases authored by other Justices.  Further exploration of this hypothesis would require some sub-hypotheses about which kinds of cases are inherently more likely to be unanimous, and with respect to which kinds of cases each Justice is likely to be the author.  To provide one example of this sort of reasoning, however, let us hypothesize that the Chief Justice assigns some cases, that some Chief Justices in history developed a personal dislike for other Justices, that those Chief Justices assign the disliked Justices "boring" cases whenever possible, and that "boring" cases are more likely to be unanimous than "interesting" cases.  Then, all else being equal, Justice White would write more unanimous opinions if he were a Justice disfavored by such a Chief Justice.

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This page was last updated on 03/10/99.