The Puzzle of Unanimity

Consensus on the United States Supreme Court

By Pamela C. Corley, Amy Steigerwalt, Artemus Ward

Stanford University Press

Copyright © 2013 Board of Trustees of the Leland Stanford Junior University
All rights reserved.
ISBN: 978-0-8047-8472-6

Contents

List of Illustrations………………………………………………ixAcknowledgments……………………………………………………xiIntroduction………………………………………………………11. The Roosevelt Court: The Critical Juncture from Consensus to Dissensus..142. Closing the Jaws of the Decision Making Vise: A Theory and Model of
Consensus…………………………………………………………493. A Function of Design: Consensus in Votes on the Merits………………944. Monolithic Solidarity: Consensus in Opinion Writing…………………1145. An Opportunity to Clarify: Unanimity and Agenda Setting……………..1416. Conclusion……………………………………………………..160Appendix………………………………………………………….169Index of Cases…………………………………………………….177Notes…………………………………………………………….179Bibliography………………………………………………………185Index…………………………………………………………….197

Excerpt

CHAPTER 1

The Roosevelt Court

The Critical Juncture fromConsensus to Dissensus

The goal of this book is to explain consensus on the U.S. Supreme Court.A useful perspective from which to begin is to appreciate how the Courttransitioned from a consensual to a dissensual body. We argue that this institutionaltransformation was the result of a series of internal and externalchanges to the judicial decision making process during the RooseveltCourt—a period roughly from 1937 to 1947 that was dominated by justicesappointed by President Franklin D. Roosevelt. These developments—occurringboth on the Court and in the broader political environment—fundamentallyaltered the dynamic among the justices and forever changedthe way they decided cases. The end result was the replacement of collectiveexpression—once the long-standing norm—with individual behavior. Thischapter thus serves to highlight the central question investigated throughoutthe book: Given all of the institutional pressures that point toward dissensus,how are the justices ever able to agree? In other words, how do we explainthe puzzle of unanimity?

Here we seek to explain why and how the modern era of dissensus began.To do so, we highlight what Pierson (2004, 55) termed a “conjuncture”—amoment in time when “discrete elements or dimensions of politics” collideto produce a new, and often unintended, effect. Specifically, we identify anumber of institutional developments that dramatically altered the extentto which consensus could be achieved in the Court’s decision making. Wetrace these trends by undertaking an extensive examination of the RooseveltCourt—the conjuncture, or moment in time, when its ability to achieve consensuschanged.

Our investigation is based primarily on the private papers of Justices WilliamO. Douglas and Harlan Fiske Stone, including memos sent betweenthe justices, draft opinions, and other correspondence, which we use todetermine the durable shifts in the Court’s decision making processes duringthese years. Our analysis shows that various institutional changes institutedboth before and during the Roosevelt Court affected the Court’sdecision making and brought about and entrenched a dissensus revolutionin which individual expression went from virtual nonexistence to the norm.

While most scholars attribute the breakdown in the norm of consensus toChief Justice Stone and his leadership style (e.g., Walker, Epstein, and Dixon1988; cf. Haynie 1992), we break with them by highlighting the internal andexternal institutional developments that increased dissensus. More simply,to truly understand how the dissensus era arose we need to understand howthe Court itself changed. By focusing merely on Stone’s personal style, onemight make the argument that another chief, with a different style, couldreturn the Court to its previous levels of consensus. We argue instead thatthe institutional changes implemented during the Roosevelt Court so fundamentallychanged the Court’s operation that a return to the norm of consensuswas virtually impossible.

Table 1.1 shows the important institutional developments—internal andexternal, cause and effect—that occurred during the Roosevelt Court era.As we detail next, once on the dissensus path, there remained only a “criticaljuncture” to fundamentally alter the institution (Pierson 2004, 134–135).That moment arrived with the conjuncture of the external intellectual forceof legal realism, the largely discretionary docket created by the Judiciary Actof 1925, popularly known as the “Judges’ Bill,” and the appointment of NewDeal legal liberals, including the elevation of Stone to chief justice, whobrought with them a more open, academic style. Under Stone, the justicesdeveloped new internal practices that undermined long-standing normsand ushered in the modern era of dissensus. Conference discussion was expanded,opinion writing and opinion circulation delays became common,and there were frequent calls to reargue contentious cases. In short, an academicatmosphere took hold.

External and internal developments on the Roosevelt Court had a dramatic,long-lasting effect on both majority and minority behavior. Justiceswriting majority opinions increasingly departed from the views of the Conference,the norm of acquiescence broke down, and more concurrences anddissents were issued than at any previous time in the Court’s history. Furthermore,majority opinions and concurrences were used to criticize dissents.Dissenters expressed small disagreements and discussed issues not raised inpetitions, all the while praising each other for not acquiescing to the majority.The basic character of the decision making process was completely transformed.

The Roosevelt Court justices did not initiate these changes out of wholecloth. Specifically, developments toward the end of the consensus era foreshadowedthe coming dissensus revolution. We propose that the consensusera on the Supreme Court began at the institution’s inception in 1789 andlasted into the Hughes Court, from 1931 to 1940. Interestingly, it began at theend of the eighteenth century in a decidedly individualistic manner, withthe earliest justices issuing their opinions seriatim (i.e., individually in eachcase), and ended at the close of the nineteenth century with a resurgence ofindividual expression, presaging the dissensus era to come. However, it is theperiod in between that largely defines what we term the consensus era. Fromthe Marshall Court to the end of the nineteenth century, Supreme Court decisionmaking was dominated by the institutional norm of consensus, includinga desire for unanimity and a distaste for dissent and individual expression.Decision making took place orally; the justices largely acquiesced and saidnothing publicly if they disagreed with the majority; institutional opinionswere often delivered by the chief justice and not circulated to the other membersof the Court for input (as they are today); and the practice of circuit ridingprovided justices with a regular outlet for individual expression. As Epstein,Segal, and Spaeth (2001) showed in their examination of the docket booksof Chief Justice Waite, justices commonly muted disagreements expressedat Conference and instead joined the majority opinion. As a result, between1801 and 1940, the Court handed down unanimous decisions approximately90 percent of the time, if not more often (Epstein et al. 2007).

At the end of the nineteenth century, however, a number of institutionaldevelopments occurred that placed the Court on a path toward increasingdissensus. During the Fuller Court (1888–1910), the courts of appeals werecreated and the Supreme Court gained limited discretionary review over itsdocket, thereby allowing it to choose more important, and often more difficult,cases to decide. Also, circuit riding, the outlet for individual expression,was abolished. Now draft opinions began to be circulated to each memberof the Court, and for the first time the justices were able to thoughtfullycritique a written opinion before it was issued. These institutional developmentshelped promote dissensus and presaged the coming, modern era ofincreased discretion over dockets, the influence of legal realism, and furtherchanges to the decision making process.

Figure 1.1 compares indicators of dissensus across consensus-era Courts.Although the transition from the relatively consensual Fuller and WhiteCourts to the more divided Taft and Hughes Courts is evident from thepercentages of dissents, concurrences, and cases decided by a one-vote margin,the levels of dissensus under Hughes were still similar to those underTaney. Thus, while dissensus was seemingly on the rise, there was no reasonto believe that the Court would not soon return to more consensual levels.And yet, as we demonstrate, the justices of the Roosevelt Court so changedthe way the Court functioned that even they appear relatively consensualcompared to their successors.

Revisiting the Roosevelt Court

President Roosevelt made nine appointments to the Supreme Court, includingthe elevation of Stone to chief justice. Hugo Black, Stanley Reed,Felix Frankfurter, William O. Douglas, Frank Murphy, James Byrnes, RobertJackson, and Wiley Rutledge joined Stone and the other holdovers to make upwhat C. Herman Pritchett (1948) termed “the Roosevelt Court.” And while itis conventional to name Courts after their chiefs, we consider the justices whoserved with Stone to be members of the Roosevelt Court in this discussion, forit is this set of justices who transformed the Court from a largely consensualbody into an institution where individual expression was common.

Figure 1.2 illustrates the dramatic sea change in nonconsensual behaviorunder Chief Justice Stone. While levels of dissensus increased during theTaft and Hughes Courts, there can be little doubt that the Roosevelt Courtjustices transformed the institution during Stone’s tenure as chief (Caldeiraand Zorn 1998; Halpern and Vines 1977; Mason 1956; Murphy 1964; Pritchett1948; Walker, Epstein, and Dixon 1988). Nearly half of all Stone Court decisionshad at least one dissent, nearly one in five contained a concurrence, andone in ten was decided by a single vote. No previous group of justices hadever come remotely close to these levels of public discord.

Figure 1.3 further shows that the dissensus trend ushered in by the justicesof the Roosevelt Court was anything but an aberration. As new justicesjoined holdovers such as Black and Douglas, they adopted the dissensusnorms begun by their predecessors. Dissent rates regularly reached 60 percent,concurrence rates continued to climb, to 40 percent, and cases decidedby a one-vote margin reached 20 percent. Although the personal predilectionsof the holdovers certainly contributed to the growth of dissensus overtime, a number of important institutional changes that occurred during theRoosevelt Court continued to be influential on future Courts and helped toentrench the norm of dissensus, which continues to this day.

Once the justices of the Roosevelt Court set out on the dissensus path,their practices and behavior only increased the amount of divisiveness overtime. Figure 1.4 shows that cases with dissents reached an all-time high of52 percent in 1943, only to be topped at 60 percent in 1946. This upward trendcontinued until 80 percent of the decisions handed down in 1952 contained adissent—a record that still stands. Dissents were common among RooseveltCourt justices in landmark cases. These included Betts v. Brady (1942), inwhich Black, Douglas, and Murphy disagreed with the majority opinion denyinga right to counsel for indigent defendants; West Virginia State Board ofEducation v. Barnette (1943), in which Frankfurter, Reed, and Owen Robertsdissented from a ruling protecting students from being forced to salute theAmerican flag and recite the Pledge of Allegiance in public schools; andKorematsu v. United States (1944), in which Roberts, Murphy, and Jacksonopposed the Court’s decision allowing the government to intern JapaneseAmericans during World War II.

Figure 1.4 also reveals an increase in the percentage of cases with a concurrence,which climbed to another record of 31 percent in 1946. Eventually,the justices issued concurrences in 57 percent of cases by the 1970 term—anas yet unsurpassed high-water mark. Even some of the landmark casesdecided unanimously contained concurrences. For example, both Stone andJackson concurred in Skinner v. Oklahoma (1942), which invalidated statecriminal sterilization laws; and Douglas, Murphy, and Rutledge each issuedseparate concurrences in the World War II Japanese-American curfew caseHirabayashi v. United States (1943).

Finally, Figure 1.4 shows that the percentage of cases decided by a one-votemargin reached an apex of 19 percent in 1944. For example, both theFree Exercise tax-solicitation case Murdock v. Pennsylvania (1943) and theCommerce Clause insurance case United States v. Southeastern UnderwritersAssn. (1944) were decided by a single vote.

It is important to note that the Court’s disagreements were not simply theproduct of a few justices. Figure 1.5 illustrates how each justice on the RooseveltCourt increased his level of dissenting votes over time. For example,Stone’s dissents increased from 4 percent of cases in 1940 to 19 percent in1944; Roberts’s, from 19 percent in 1940 to 36 percent in his final year on thebench; Black’s, from 9 percent in 1940 to 21 percent in 1946; Reed’s, from5 percent in 1940 to 12 percent in 1946; Frankfurter’s, from 1 percent in 1940to 23 percent by 1946; Douglas’s, from 9 percent in 1940 to 21 percent in 1946;Jackson’s, from 7 percent in 1941 to 20 percent in 1946; and Rutledge’s, fromonly 3 percent in 1942 to a striking 30 percent in 1946. As the figure shows,the dissensus trend was plainly a collective enterprise.

Still, despite the unprecedented amount of dissensus occurring on theRoosevelt Court, the justices reached consensus half of the time and in anumber of important cases. They spoke in a single voice in the “fightingwords” case Chaplinsky v. New Hampshire (1942), the World War II “enemycombatant” case Ex parte Quirin (1942), and the Commerce Clause agriculturalcase Wickard v. Filburn (1942). These decisions illustrate that even ona fractured Court the justices could agree on some of the most controversialissues of the day.

It is plain from the data that the Court experienced then-unprecedentedlevels of disagreement while Stone was chief justice. However, the extentto which Stone was personally responsible for this discord continues to bedebated; for this reason we discuss Stone’s leadership and the personal andjurisprudential divisions among his colleagues. And, while we acknowledgethat Stone’s freewheeling style helped foster an environment in which conflictthrived, we illuminate a number of intra-institutional developments thatfurther undermined the old-era norm of consensus, already threatened bythe extra-institutional pressures of the discretionary docket, legal realism,and rapid personnel changes. Thus, the justices of the Roosevelt Court cametogether at a time when conditions for increased dissensus were ripe. Weargue that it was ultimately these institutional developments, rather thansimply the leadership style of Chief Justice Stone or personal feuds amongthe justices, that transformed the Court. Nevertheless, those latter factorscertainly helped reinforce the institutional developments that entrencheddissensus over time.

External Developments: Discretionary Docket,Legal Realism, and Personnel Changes

Three important external developments were central to the breakdown ofconsensus during the Roosevelt Court: (1) congressional legislation that gavethe justices a large measure of discretion over the cases they would decide,opening the door to more contentious issues; (2) the controversial intellectualideas of legal realism—in particular the notion of law as indeterminate—thatprovided an environment for conflict to thrive; and (3) President Roosevelt’ssuccessful appointment of justices who were critical of their predecessorsand therefore receptive to changing the institution both procedurally andsubstantively. In this section, we briefly address how each influenced theCourt’s decision making processes. Without these crucial developments,the justices would have had neither the incentive nor the opportunity toundermine consensual norms or to create internal procedures conducive todissensus to the extent that they did.

Trifling Cases: The Judges’ Bill of 1925

The Judges’ Bill of 1925 eliminated the vast majority of mandatory appealsand allowed the Court to choose which certiorari petitions it would consider.This was perhaps the most important development of the Taft Court. Relievingthe justices of their burdensome mandatory docket allowed them tofocus on the most significant, and usually most contentious, issues of the day,and the implications of this for the decline of consensual decision makingcannot be overstated. In short, the justices no longer faced large numbers ofrelatively easy cases on which they could all agree. Consider the commentsof Justice John H. Clarke in his 1922 resignation letter to President Wilson:

Much more than ½ the cases are of no considerable importance whether consideredfrom the point of view of the principles or of the property involved in them,but, nevertheless, a conscientious judge writing them must master details with theutmost care. My theory of writing opinions has always been that if clearly stated9 cases out of 10 will decide themselves,—what the decision should be will emergefrom the statement of the facts as certainly as the issues will…. I protested often,but in vain, that too many trifling cases were being written, that our strength shouldbe conserved for better things. (quoted in Post 2001, 22–23)

Some have dismissed Clark’s remarks as the product of personal melancholyover his sister’s death; however, Justice George Sutherland madesimilar comments. In his Senate testimony in favor of the Act, Sutherlandexplained that “a very large proportion of the cases that come” to the Court”ought never to be there at all” and that the justices were burdened by “alarge number of trifling cases” (Post 2001, 23).

The Judges’ Bill greatly limited the types of cases granted a mandatoryappeal to the Supreme Court. With this reduction of its mandatory jurisdiction,the Court could focus more attention on deciding important constitutionaland statutory questions, and spend less time on routine appeals cases.

Not surprisingly, the justices increasingly chose to adjudicate cases containingdifficult and complex legal issues of national importance—namely,those involving civil rights and liberties. Cases involving freedom of speech,religious liberty, privacy, the rights of the accused, and race and sex discriminationnot only became a permanent feature of the annual caseloadbut also divided the justices as never before. Indeed, even the New Dealliberal justices appointed by Franklin Roosevelt differed on these and othermatters. The establishment of the Supreme Court’s discretionary docket wasthus a key external development that helped usher in a new era of dissensus.
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