The first sentence sticks out like a sore thumb today. The Court was concerned about a five-four decision and how it might damage the Court’s prestige. This concern is definitely a legacy of Chief Justice John Marshall. He sought to build consensus and on major issues have the Court “speak as a Court.”
After the decision of Roe v. Wade the Court became another political organ of government, and membership on the Court became a political process. The 5-4 split and its effect on Court prestige no longer seems to be a concern in a partisan and polarized Court.
Marshall’s philosophy had great merit and did much to create the prestige of the Court. Some of the most momentous decisions of the Court came when the Court “spoke as the Court” through a unanimous opinion written by the Chief Justice. Earl Warren knew that this had to be done in Brown v. Board of Education. Warren Burger knew this had to be done in United States v. Nixon, where the Court knew it was in effect removing a President from office. Nixon resigned two weeks after the decision. But this has not happened after Roe v. Wade.
The last time the Court needed to speak unanimously as a Court through an opinion by the Chief Justice was Bush v. Gore, where the Court selected the President of the United States. I will admit the circumstances of that case did not permit consensus building; the Court only had about 48 hours to craft an opinion before the Electors had to be certified. And that also contributed to a very poorly written set of opinions.
My recollection is that on the central point of whether Florida’s election rules violated the Equal Protection Clause the vote was 7-2. The 5-4 split was on the remedy; whether Floriduh should have yet another chance to get it right.