Fifteen Eighty Four

On April 10 2025 SCOTUS decided on the case 24A949 Noem vs. Abrego Garcia. Examining the reasoning of a District Court ordering the Government to “facilitate and effectuate the return of [Abrego Garcia] to the United States”. The Court removed the verb “effectuate” from the decision because it does not express “due regard for the deference owed to the Executive Branch in the conduct of foreign affairs”; but it maintained the verb “facilitate” because “The Government must comply with its obligation to provide Abrego Garcia with “due process of law””. This was the logic of the decision.

Let me now go to what is more interesting from my point of view: the procedure. In this controversial case, the decision of the Court was unanimous. And the reasoning demonstrates how and why. On the constitutional dimension, there are two principles involved (first, according to the separation of powers foreign affairs is in the domain of the Government; second, every resident of the US is entitled to “due process of law”), and a constitutional interpretation has to respect both of them. On the political dimension, in a polarized country any decision that exacerbates divisions should be avoided whenever possible.

Given the ambiguity of the verb “facilitate” each side interpreted it as the Court taking its position, and it is possible that we will need further explanations by SCOTUS. The lower Court, however, is asking proof that the Government is actually implementing the Supreme Court’s decision to facilitate the return of Mr. Garcia.

Let me now move to the institutional extensions of this unanimous decision. This is an impressive example of the Court bridging ideological and political differences. Indeed, there are circumstances when, for both reasons of content and legal arguments, qualified majorities are more effective and more symbolic than simple majorities. The Court recognized that this was one of them.

What would be more instrumental is if the Court recognized that constitutional interpretations are cases of grave importance and hence to demonstrate consensus the decision-making rule should be qualified majority (6/3, or 7/2), keeping the simple majority decisions for statutory interpretations.

There are no impediments for the adoption of such a rule. There is no reference in the constitution of how SCOTUS should make decisions and in the past decisions were made by consensus (Orentlicher 2022). In addition, similar rules are applied by the constitutional courts of other countries like Germany¹(2/3 majority to declare parties unconstitutional as well as for impeachment cases of the President or judges), S. Korea² (6 out of 7 to 9 justices to rule a statute unconstitutional or overrule a previous interpretation etc.), Peru³ (5/7 for declaring laws unconstitutional), or Chile⁴ (4/5 to declare unconstitutional laws previously ruled inapplicable).

¹Bundesverfassungsgerichtsgesetz, §15

² Constitutional Court Act, art. 23

³Ley Orgánica del Tribunal Constitucional, article 5

⁴Article 93 of the Chilean Constitution

On the other hand, the respective Supreme Courts of each⁵ one  -of⁶ those⁷four countries, ruling on statutory matters, rely on simple or absolute majorities.

What would be the effects of such a procedural decision by SCOTUS? First there would be a bigger effort to reach the required majority (the 6^th or 7^th member of the Court) while with the current decision-making would consider the 5^th member sufficient. Second, there would be some cases which would lead to no Supreme Court decision. Would that lack of decision lead to a disorderly situation? No because in the first place the decisions of the lower courts would stand, and if the situation was not satisfactory the political system would assume the responsibility to submit a law regulating the issue.

In my book “Changing the Rules: Constitutional Amendments in Democracies” I argue that there are three different levels of change that can be produced in Democracies on the basis of the procedures that are used: 1. Changes within the constitutional equilibrium (applying the rules described in the constitution; they involve legislation, and court interpretations (statutory or constitutional))2. Changes outside the constitutional equilibrium (applying the amendment provisions of the constitution; they involve constitutional amendments) and 3. Changes of the constitution as a whole (usually they involve at least a convention and a referendum). What I am suggesting here is for the Court to adopt the institutional strategy that is so common in almost all political systems: decisions involving the constitution are more difficult than decisions involving ordinary laws.

References

Código Orgánico de Tribunales de Chile. Biblioteca del Congreso Nacional de Chile. https://www.bcn.cl/leychile/navegar?idNorma=25563.

Constitución Política de la República de Chile. Constitute Project, 2021. https://www.constituteproject.org/constitution/Chile_2021.

⁵ Germany, $196 of the Gerichtsverfassungsgesetz

⁶ South Korea, art. 66 of the Court Organization Act

⁷ Peru, art. 79 of the Decreto Supremo 017-93-JUS

⁸Chile, arts. 86 and 103 of the Código Orgánico de Tribunales

Decreto Supremo No. 017-93-JUS of Peru

German Court Constitution Act.

German Federal Constitutional Court Act.

Ley Orgánica del Tribunal Constitucional. Tribunal Constitucional de Perú.

Orentlicher, David, “Judicial Consensus: Why the Supreme Court Should Decide Its Cases Unanimously” (2022). Scholarly Works. 1362.

South Korea Constitutional Court Act. Korea Legislation Research Institute.

South Korea Supreme Court Organization Act. Korea Legislation Research Institute.

Tsebelis, George. Changing the Rules: Constitutional Amendments in Democracies. Cambridge University Press; 2025.