Demise Of The Norm Of Consensus

Decline of the Norm of consensus

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Introduction

Being the highest court in the country, Supreme Court is expected to retain a good

reputation to maintain public trust. For a long time, the Court used norm of consensus to make

unanimous decisions and thus created a picture of a stable and decisive court. The court was able

to obscure private disagreements from the public and people could not understand how the

justices coming from different backgrounds could make unanimous rulings. However, nowadays

though there are some unanimous rulings are observed the un-unanimous ones are on the rise.

The un-unanimous rulings involve dissent and independent justices’ opinions, which created a

different image of the Supreme Court. This is an indication that the Supreme Court decision-

making process have undergone transformations and the era of the norm of consensus has

become a bygone. A lot of research has been done trying to understand the existence of the norm

of consensus and how it ended. However, the researchers have not come to a conclusive

agreement on the factors that facilitated the decline of this norm. The supreme court being a

politicized court and which handles most of the politically sensitive issues it can be said that the

political ideologies played a critical role in its venturing away from the norm of consensus.

Moreover, given that the Supreme Court is the guardian of the constitution and gatekeeper of the

law for the people it would not be sufficient to conclude that political leanings and ideologies led

to the decline of the norm of consensus. Other factors other than political ideologies are

responsible for the failing of the Supreme Court norm of consensus, as there are increasingly

high rates of dissents.

The norm of consensus started in the Marshall Court. Chief Justice Marshall was

successful in producing a norm that favored anonymity. He achieved this by discouraging

dissenting opinions, and he individually wrote many of the Court’s opinions even those he did

not agree with the rulings

. This was aimed at revitalizing the perception of public unanimity. As

pointed out by Sunstein, the Supreme Court’s norm of consensus is different from the actual

consensus. The actual consensus is where there exist no underlying disagreements among the

justices, and thence the justices agree with one voice regarding various issues

. On the other

hand, the norm of consensus existed where the justices were supposed to make unanimous

decisions regardless some of them having disagreeing opinions

. In short, the norm of consensus

is the one that discourages the justices from publicly expressing dissent. This norm persisted

until 1941 when major transformations happened in the Supreme Court. From then the dissenting

and concurring opinions became rampant while the unanimous rulings started dwindling

. One of

the most suggested causes of the demise of the consensual norm is the changes in the leadership

of the chief justices. Haynie (1992), cite that leadership style and character of the chief justice

has a significant influence on the Court’s operating norms

. Before the Roosevelt Court and

Stone appointment, the operations of the Court were streamlined, and the chief justices were able

to drive the associate justices into a consensus. However, the following the appointment of Stone

there was a drastic rise of individual opinions. According to Walker, Epstein, and Dixon, Stone

was an ineffective leader, the Court conference debates were intense, but he could not help in

finding common ground or maintain solidarity

. Stone vehemently defended the right to dissent

Epstein, Lee, Jeffrey A. Segal, and Harold J. Spaeth. "The Norm Of Consensus On The U.S.

Supreme Court". American Journal of Political Science 45, no. 2 (2001): 362.

Sunstein, Cass R. "Unanimity And Disagreement On The Supreme Court." SSRN Electronic

Journal (2015).

Wittig, Caroline. The Occurrence Of Separate Opinions At The Federal Constitutional

Court. 1st ed., 2016.

Haynie, Stacia L. "Leadership And Consensus On The U.S. Supreme Court". The Journal of

Politics 54, no. 4 (1992): 1158-1169.

Walker, Thomas G., Lee Epstein, and William J. Dixon. "On The Mysterious Demise Of

Consensual Norms In The United States Supreme Court." The Journal of Politics 50, no. 2 (1988): 361-389.

by suggesting that it is not appropriate for the chief justice to dissuade Court members from

expressing individual opinions. He believed in the essentiality of dissenting opinions. Compared

with his predecessors, Stone is seen hold shaky social skills, he saw consensus as a detrimental

norm, unlike other chief justice who saw dissensual as a negative aspect of the Court

. Moreover,

he expressed more dissenting opinions than the former Court leaders and he regularly voted

against the majority.

It is worth noting that Chief Justice Stone did not simply welcome dissenting opinions

and practice; he was responsible for massive internal changes that accelerated the decline of the

norms. The conference discussions became longer where opposing standpoints were debated

leading to coalitions and dissents

. At the same time, ruling deadlines were extended giving room

for competing opinions. All these facilitated the development of separate offices for the justices

who free to express their opinions to the public. Some of the Chief Justices that followed Stone,

for example, Burger presented similar leadership style as Stone, which was responsible for

further dwindling of the norm of consensus

. Burger has been quoted as an ineffectual leader as

the conference debates during his tenure were confused and lacked direction while he was

indecisive and unable to control other justices. In all these, there were no political ideologies but

change on leadership styles and personal characteristics of the chief justices that demised the

consensus norm.

Walker, Thomas G., Lee Epstein, and William J. Dixon. "On The Mysterious Demise Of

Consensual Norms In The United States Supreme Court." The Journal of Politics 50, no. 2 (1988): 361-389.

ibid

Edelman, Paul H., David E. Klein, and Stefanie A. Lindquist. "Consensus, Disorder, and

Ideology on the Supreme Court." Journal of Empirical Legal Studies 9, no. 1 (2012): 129-148.

Changes in the composition of the Supreme Court judges significantly included the

decline of the norm of consensus. First, young justices who were independent minded were

appointed to the Supreme Court. According to Corley and colleagues, the youthfulness and

inexperience were key factors that led to the disagreements among the Justices, mostly appointed

by President Roosevelt

. However, as Sunstein notes, the new young Justices advocated for an

academic atmosphere where they could freely express their opinions without being compelled to

a consensus

. It is observed that despite these Judges being appointed by Roosevelt, they were

not influenced by political ideologies to break the norm of consensus. Instead, it is their

personalities and desire for self-expression. Looking back to the inexperience, starting from the

1940s, Supreme Court Justices came from different career lines. For example, Justices Douglas,

Rutledge, and Frankfurter were career university professors, an occupation that encourages

individual expression of ideas and critiquing of the law theories

. Others such as Black and

Byrnes came from the Senate, an institution that values debate. This is an indication that the

composition of the associate justices took part in the failing of the norm of consensus.

The Supreme Court is considered a political court and therefore political ideologies

influence its decision making

; however, the political ideologies could not have played a

significant role in the failing of the norm of consensus. For example, the in the Rehnquist Court,

the conservative justices did not obviously make unanimous decisions leaning towards a

Corley, Pamela C., Amy Steigerwalt, and Artemus Ward. "Revisiting The Roosevelt Court:

The Critical Juncture From Consensus To Dissensus." Journal of Supreme Court History 38, no. 1 (2013): 20-50.

Sunstein, Cass R. "Unanimity And Disagreement On The Supreme Court." SSRN Electronic

Journal (2015).

ibid

Posner, Richard A. "The Supreme Court Is A Political Court. Republicans’ Actions Are

Proof.". Washington Post

conservative direction

. In fact, they made more non-unanimous conservative decisions

compared to liberal decisions. According to attitudinal theory, the liberal Justices are more

extreme on their beliefs and therefore tend to have a strong political ideology, which influences

their decision making

. However, this is not the case since both conservative and liberal Chief

Justices in the norm of consensus era were equally forceful in their ideologies, but they could not

let their political perspectives break the norm. It, therefore, makes sense to say that, though the

political ideologies influence the individual justice’s views on different Court cases, they were

not entirely responsible for the demise of the norm of consensus. Nonetheless, the politics in

Court may be synonymous with judicial discretion where a judge has the freedom to express her

personal views

. Or, defined as case-by-case where judges make opposing decisions in different

cases. In these two perspectives, the Supreme Court can be considered political, but in regarding

political affiliations, there is no prove to show that political ideologies affect its decision-making

process.

The high rate of turnover and appointments of new justices partially affected the norm of

consensus. Supreme Court, being a continuing institution, the rate of new members joining is

averagely one in a two year period. The steady membership change rate gives the Court a chance

to socialize the new members and make them conform to the internal norms. Moreover, as

Epstein et al. note, a speedy and influx of new justices can be disruptive to the Court and

Hensley, Thomas R. and Scott P Johnson. "Unanimity on the Rehnquist Court," Akron

Law Review: 31 no. 3, Art. 2 (1998): 387- Available at:

http://ideaexchange.uakron.edu/akronlawreview/vol31/iss3/2

Corley, Pamela C, Amy Steigerwalt, and Artemus Ward. "The Puzzle of Unanimity:

Consensus on the United States Supreme Court." Choice Reviews Online 51, no. 05 (2013): 51-2926-51-2926.

Joondeph, Bradley W. The Many Meanings of "Politics" in Judicial Decision Making, 77

UMKC L. Rev. 347 (2008), Available at: http://digitalcommons.law.scu.edu/facpubs/35

incapacitate the normal process of socialization

. Though there were more new members during

the tenures of Chief Justices before 1941 they were spread over longer time, for example, in the

Fuller’s era (1988- 1910) there were eleven new justices. However, during the Stone tenure

(1941-1946) four new justices joined the Supreme Court within five years with a turnover rate of

.80, which was higher than of any of his predecessors

. This creates a possibility that the high

turnover rate coupled with less oriented members made the enforcement of the traditional norm

of consensus difficult.

The increasing rate of civil substantially affected the norm of consensus and influenced

its decline. The civil liberties cases influence policies, and thus justices need ample time to

discuss and make their rulings

. This allows the judges to write opposing opinions concerning

such cases. According to Walker et al., civil liberties cases are more prone to dissent than un-

civil cases because the form does not pull much public attentions or policy weight thus

consensus is common

. From the mid-twentieth century, the civil liberties cases were on the

rise, which translated to more dissenting and concurring opinions among the Supreme Court

justices. However, according to Sunstein, the increasing number of civil liberties and civil rights

could not be purely linked to the decline of the norm. He continues by saying that before the

1940s, there were such civil liberties cases, but they never caused non-unanimous rulings

. This

does not mean that the rising civil cases did not affect the norm of consensus. Hendershot et al.

Epstein, Lee, Jeffrey A. Segal, and Harold J. Spaeth. "The Norm Of Consensus On The U.S.

Supreme Court". American Journal of Political Science 45, no. 2 (2001): 362.

ibid

Clark, Tom S. "Measuring Ideological Polarization on the United States Supreme Court."

Political Research Quarterly 62, no. 1 (2009): 146-157.

Walker, Thomas G., Lee Epstein, and William J. Dixon. "On The Mysterious Demise Of

Consensual Norms In The United States Supreme Court." The Journal of Politics 50, no. 2 (1988): 361-389.

Sunstein, Cass R. "Unanimity And Disagreement On The Supreme Court." SSRN Electronic

Journal (2015).

found that there was a positive relationship between the increasing civil rights cases and

declining norm of consensus

The introduction of new writing technology changed the Supreme Court’s opinion-

writing practices. In the 19th century, the justice mainly presented their expressions orally or

pen-written. It can be argued that this made them agree on consensus because they could incur

costs regarding writing manually. However, towards the mid-twentieth century, there was the

introduction of typewriter helped the justices to write opinions with ease and they could be

available to the public. Additionally, in the 1970s, the Supreme Court underwent modernization

and computerization

. This contributes to the persistence of the non-consensual norm as they

lower the burden and costs of individual justices to write opinions separately. Still on this point,

technological led to the creation of electronic databases, which greatly reduced the time and cost

of searching for information. All are significantly related to the decline of the consensus norm.

As Ley et al., points out, the increase in the number of law clerks contributes to the Court

making more non-unanimous decisions. Before 1941, the law clerks were considered as mere

research assistants and were privately hired by the individual justices; therefore, they did not

contribute much in opinion writing. However, from 1942, the Justices were assigned clerks

This created division of labor and specialization. The clerks got more freedom to draft opinions,

make decisions, and manage the certiorari process. From this year (1942) onwards when the law

clerks were officially introduced to the Supreme Court chambers, there was a dramatic decline in

the number of unanimous rulings.

Hendershot, Marcus E., Mark S. Hurwitz, Drew Noble Lanier, and Richard L. Pacelle.

"Dissensual Decision Making Revisiting the Demise of Consensual Norms within the

U.S. Supreme Court". Political Research Quarterly 66, no. 2 (2013): 467-481.

Aaron J. Ley, Kathleen Searles, & Cornell W. Clayton, The Mysterious Persistence of Non-Consensual Norms on

the U.S. Supreme Court, 49 Tulsa L. Rev. 99 (2014).

Aaron J. Ley, Kathleen Searles, & Cornell W. Clayton, The Mysterious Persistence of Non-Consensual Norms on

the U.S. Supreme Court, 49 Tulsa L. Rev. 99 (2014).

The enactment of the Judiciary Act and the discretionary docket was critical in the

transformation of the Supreme Court decision making. Before the passage of the Judiciary Bill,

the Supreme Court did not have total control of its functioning

. The Court heard many “easy’

cases that required simple consensus. In addition, when the Court has a large number of cases it

was likely to observe the norm of consensus to avoid the compiling of caseloads. When the Act

was implemented, the Court got more authority over its functioning and controlled the cases it

could hear. This made it cease dealing with simple cases and focused on difficult ones.

Considering that the Act was enacted in 1925, it would be expected that the new pattern of non-

unanimous decisions to be observed in years before the 1940s, but that was not the case as more

than fifteen years passed before the individual opinions began being expressed publicly

However, Corley et al., notes the creation of the discretionary docket as one of the primary

factors that contributed to the new pattern of dissensus

. To support this, it is noted that the

adjustments of the docket take place incrementally. Therefore, the passage of the Judges’ Bill

and the establishment of the discretionary docket played an important role in the demise of the

norm of consensus.

From this review, it has is noted that the dissent and concurrence began replacing

consensus in Supreme Court rulings. The dissent opinions started being appreciated both within

and outside the Court. The dissenting opinions, though they might not influence the Congress or

future justices, they have an impact on the majority opinion, possibly by making sure that

specific arguments are backed by plausible answers. This makes the majority side to be more

Sunstein, Cass R. "Unanimity And Disagreement On The Supreme Court." SSRN Electronic

Journal (2015).

Edelman, Paul H., David E. Klein, and Stefanie A. Lindquist. "Consensus, Disorder, and

Ideology on the Supreme Court." Journal of Empirical Legal Studies 9, no. 1 (2012): 129-148.

Corley, Pamela C, Amy Steigerwalt, and Artemus Ward. "The Puzzle of Unanimity:

Consensus on the United States Supreme Court." Choice Reviews Online 51, no. 05 (2013): 51-2926-51-2926.

thorough in their expression of a ruling. A dissent might also influence the Congress. This is

especially when a dissenter points that the Court has made a mistake, which triggers legislative’s

attention. Another importance of dissent is that it might influence the future law development.

Bozzo et al., notes that many dissenters hope that their opinions would be used in a corrective

measure for in future cases

. Therefore, it can be argued that some Justices dissent with the hope

of having an impact in the law enactments. The might be one of the reasons why the non-

consensual decision-making has persisted. In short, the Supreme Court tends to have abandoned

the “out of many, one” slogan, but instead adopted “one Court many voices’. Each voice is

significant to the public.

Conclusion

The norm of consensus at the Supreme Court is long gone, and there is no hope of it

coming back. Though political ideologies may have somehow played a part in the transformation

of the Court from the norm of consensus to the practice of dissensual, other key factors led to

this change. These factors include the leadership style of chief justices, Court composition of

inexperienced and independent-minded justices, increasing civil liberties and rights cases,

improved autonomy of the court. Other factors such as improved technology and the introduction

of law clerks have also contributed to the declining of the norm of consensus but not

significantly. The demise of the norm of consensus has led to the appreciation of the dissenting

and concurring opinions.

Bozzo, Peter, Shimmy Edwards, and April A. Christine. "Many Voices, One Court: The

Origin And Role Of Dissent In The Supreme Court." Journal of Supreme Court History 36, no. 3 (2011): 193-215.

Bibliography

Bozzo, Peter, Shimmy Edwards, and April A. Christine. "Many Voices, One Court: The Origin

And Role Of Dissent In The Supreme Court." Journal of Supreme Court History 36, no. 3

(2011): 193-215.

Clark, Tom S. "Measuring Ideological Polarization on the United States Supreme Court."

Political Research Quarterly 62, no. 1 (2009): 146-157.

Corley, Pamela C, Amy Steigerwalt, and Artemus Ward. "The Puzzle of Unanimity: Consensus

on the United States Supreme Court." Choice Reviews Online 51, no. 05 (2013): 51-

2926-51-2926.

_______________"Revisiting The Roosevelt Court: The Critical Juncture From Consensus To

Dissensus." Journal of Supreme Court History 38, no. 1 (2013): 20-50.

Edelman, Paul H., David E. Klein, and Stefanie A. Lindquist. "Consensus, Disorder, and

Ideology on the Supreme Court." Journal of Empirical Legal Studies 9, no. 1 (2012): 129-

148.

Epstein, Lee, Jeffrey A. Segal, and Harold J. Spaeth. "The Norm Of Consensus On The U.S.

Supreme Court". American Journal of Political Science 45, no. 2 (2001): 362.

Epstein, Lee, William M. Landes & Richard A. Posner. Are Even Unanimous Decisions In The

United States Supreme Court Ideological? Northwestern University Law Review 106,

No. 2 (2012): 699-714

Haynie, Stacia L. "Leadership And Consensus On The U.S. Supreme Court". The Journal of

Politics 54, no. 4 (1992): 1158-1169.

Hendershot, Marcus E., Mark S. Hurwitz, Drew Noble Lanier, and Richard L.

Pacelle."Dissensual Decision Making Revisiting the Demise of Consensual Norms within

theU.S. Supreme Court". Political Research Quarterly 66, no. 2 (2013): 467-481.

Hensley, Thomas R. and Scott P Johnson. "Unanimity on the Rehnquist Court," Akron Law

Review: 31 no. 3, Art. 2 (1998): 387- Available at:

http://ideaexchange.uakron.edu/akronlawreview/vol31/iss3/2

Joondeph, Bradley W. The Many Meanings of "Politics" in Judicial Decision Making, 77 UMKC

L. Rev. 347 (2008), Available at: http://digitalcommons.law.scu.edu/facpubs/35

Melone, Albert P, and Allan Karnes. The American Legal System: Perspectives, Politics,

Processes, and Policies. 1st ed. Lanham (M.D.): Rowman & Littlefield Publishers, 2008.

Chapter 4

Posner, Richard A. "The Supreme Court Is A Political Court. Republicans’ Actions Are Proof.".

Washington Post. Last modified 2017. Accessed April 1, 2017.

https://www.washingtonpost.com/opinions/the-supreme-court-is-a-political-court-

republicans-actions-are-proof/2016/03/09/4c851860-e142-11e5-8d98

4b3d9215ade1_story.html?utm_term=.ad4782799067.

Sunstein, Cass R. "Unanimity And Disagreement On The Supreme Court." SSRN Electronic

Journal (2015).

Walker, Thomas G., Lee Epstein, and William J. Dixon. "On The Mysterious Demise Of

Consensual Norms In The United States Supreme Court." The Journal of Politics 50, no.

2 (1988): 361-389.

Wittig, Caroline. The Occurrence Of Separate Opinions At The Federal Constitutional Court. 1

ed., 2016.

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Demise of the Norm of consensus

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