It doesn’t always come down to one vote.
Look back at some of the most notable U.S. Supreme Court decisions, and you find some of the best were decided by an overwhelming majority.
Brown v. Board of Education, which outlawed racial segregation in public schools, was unanimous, in fact. So was NLRB v. Noel Canning, which reinforced the fact that a president cannot make recess appointments when the Senate is in session.
Some of the worst, too, were similarly lopsided. Plessy v. Ferguson, a pre-Brown case that allowed segregated public facilities, was decided by a 7-1 vote. The infamous Roe v. Wade, which struck down state laws outlawing abortion, was 7-2.
But there are plenty of times when victory one way or the other does turn on a single vote.
Tiffany Bates, a researcher in the Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies, highlighted a few telling examples in a recent article for the Daily Signal.
As with the ones cited above, some of these single-vote-margin cases were very poorly decided — at least if you care about interpreting the Constitution as written. Among them:
• In Kelo v. City of New London, the Supreme Court interpreted the takings clause of the Constitution to allow the government to seize citizens’ homes — not to build a road or fulfill some other public use as is required by the Fifth Amendment, but to transfer the property to a private corporation because it could pay more taxes.
• In Boumediene v. Bush, the Supreme Court extended the right of habeas corpus to the Guantanamo Bay detainees, usurping national security authority.
• In National Federation of Independent Business v. Sebelius, the Supreme Court instituted one of the largest tax increases in history when it strained the Affordable Care Act’s text to uphold the individual health care mandate as a valid exercise of Congress’ taxing power.
• In Obergefell v. Hodges, the Supreme Court recognized a constitutional right to marriage that includes same-sex couples in a decision so unmoored from the text of the Constitution that even supporters of the ruling have described it as unintelligible and poorly reasoned.
But there have also been some “significant wins for the Constitution,” Ms. Bates reminds us, that also featured one justice casting the deciding vote:
• In McDonald v. City of Chicago and District of Columbia v. Heller, the Supreme Court overturned Chicago and Washington, D.C.’s virtual bans on handguns, upholding the Second Amendment rights of Americans.
• In Town of Greece v. Galloway and Burwell v. Hobby Lobby, the Supreme Court respected religious freedom, upholding a town council’s right to begin a meeting with a prayer, and stopping the government from requiring business owners to pay for certain abortion-inducing drugs and devices in their health care plans against their religious beliefs.
• In Citizens United v. Federal Election Commission and McCutcheon v. Federal Election Commission, the Supreme Court tossed out unconstitutional restrictions on political speech and campaign contributions.
• In Shelby County v. Holder, the Supreme Court held that Section 4 of the Voting Rights Act, which set forth an outdated coverage formula that was used to determine which states needed to get pre-approval from the federal government before making any changes in their voting laws, was unconstitutional.
As these and other cases demonstrate, it’s critically important to have Supreme Court justices who adhere to our nation’s founding document, not follow the political whims of the moment. Like umpires in a major-league game, we need for them to call balls and strikes strictly by the rule book.
As President Reagan said when he nominated Chief Justice William Rehnquist and Antonin Scalia, justices “must not only be jurists of the highest competence; they must also be attentive to the rights specifically guaranteed in our Constitution and to the proper role of the courts in our democratic system.”
As the cases above show, the more justices we have understand that, the better off we are. Our rights, our freedoms and sometimes our very lives depend on it.
• Ed Feulner is the founder of the Heritage Foundation (heritage.org).