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...