When Chief Justice Roberts was nominated in 2005, there was a lot of discussion about his goal of reducing the number of 5-4 opinions. That hasn’t worked out, but I was never sure about how much that matters. With rare exceptions, the fact that an opinion is sharply divided is irrelevant.
Salazar v. Buono, which came down yesterday, illustrates a real problem that the Chief should work on — cases where the Court cannot produce a majority opinion at all. That is a totally unsatisfactory result that drives attorneys, government officials, and lower court judges batty. I wonder whether the Court should adopt a norm that if it cannot agree on a majority opinion the writ of certiorari should be dismissed as improvidently granted. (Note that this is different from a five-person majority opinion where one member writes separately. In that case, you at least have a short at extracting an intelligible holding.) There are instances (a case in the Court’s original jurisdiction, for example) where even a splintered decision is better than nothing, but usually that is not the case. There’s nothing wrong with leaving the lower court opinion in place and taking up a similar issue in a subsequent case where a clear decision can be rendered.