When the Court Divides, the Nation Fractures
A vision for a better US Supreme Court.
The Supreme Court is meant to be the final interpreter of law; in practice, it has become the final expression of division. Each split decision signals not only uncertainty in the law, but a fracture in public trust. When the highest court cannot agree, citizens are left with the unsettling sense that the Constitution itself bends to ideology rather than principle.
The Problem of Dissent
A dissenting opinion is often celebrated as a sign of intellectual independence. But viewed institutionally, dissent reveals a deeper failure: the inability of the Court to produce a unified judgment that commands collective respect. In a system built on precedent, a divided ruling does not clarify the law; it multiplies interpretations and weakens the authority of future courts. The public reads the score, not the reasoning.
The question, then, is whether a body charged with final judgment should ever publish an opinion that admits it cannot agree on what the law demands.
A Model of Judicial Consensus
A more rational model would require the Supreme Court to continue deliberation until a consensus can be reached. If consensus proves impossible, the case should be declared unresolved, functionally a hung jury of our highest jurists. In that outcome, the existing law or lower-court ruling would stand until the legislature addresses the issue through democratic process.
This approach would not paralyze the judiciary; it would discipline it. The Court’s authority would be exercised only when its reasoning is unified enough to guide the nation. In the absence of agreement, the Court would defer, acknowledging that the question requires further political and societal development before it can be answered with confidence.
Constitutional Integrity Through Restraint
The legitimacy of the judiciary depends not on its power to decide, but on the soundness of its decisions. Forcing unanimity or near-unanimity on constitutional interpretation would encourage narrower, more stable rulings. Justices would be compelled to locate common ground rather than carve ideological territory.
Where agreement cannot be found, restraint becomes a virtue. Admitting uncertainty preserves the integrity of both the Court and the Constitution. It recognizes that constitutional meaning is not static and that democratic institutions remain responsible for refining it.
The Function of a Hung Court
Treating a divided Supreme Court as a hung jury restores balance between branches of government. It reinforces the idea that courts interpret law; they do not create it. When the law is unclear, it is the legislature’s role, not the judiciary’s, to rewrite or clarify it.
This model also limits the social cost of error. A narrow majority could no longer impose sweeping precedents that divide the nation for generations. Stability would default to the status quo, allowing time and legislative consensus to produce change with legitimacy rather than surprise.
A Modest Proposal for a Higher Court
The judiciary’s greatest strength lies not in its finality, but in its fidelity to reason. A Court that cannot agree should not rule. It should wait, deliberate longer, write together, or yield to the democratic process.
In that humility lies strength. Law would evolve at the pace of consensus, not ideology. The Court would return to its truest role: the conscience of the Constitution, not its battlefield.