I have a thought experiment that I want to try out. Can anyone think of a Supreme Court opinion that failed because it was not unanimous? In other words, is there any opinion that was gravely undermined by the fact that one or two Justices dissented?
I ask this because when you read accounts of certain high-profile cases (for example, Brown, Heart of Atlanta Motel, or Nixon), the Justices were concerned about avoiding dissents. They feared that a dissent would inflame public opinion or stiffen the resolve of elected officials to defy the Court. In the process, the Court sometimes had to say or omit things to get everyone on board that were unclear or harmful.
What I want to know (or think about) is whether this fear is real or not. Avoiding a 5-4 decision makes sense, since you never know who the next Justice will be. When the margin is greater than that, though, I’m not so sure. Moreover, if a decision is really unpopular, does the presence of a dissent make or break what happens afterwards. And does even achieving unanimity reduce that hostility? If Justice Stanley Reed had dissented in Brown, would that have mattered?