When the Chief Dissents: Exploring Consensus-Building on the U.S.

Supreme Court, 1946-2005Kory Redding

Department of Political Science

College of Arts and Sciences & Honors College

University of North Texas

Faculty Mentor:

Paul M. Collins, Jr., Ph.D.

Department of Political Science

University of North Texas

The Caseload of the Supreme Court

• A writ of certiorari (cert) must be filed and granted in order for a case to be heard

• Who files for certiorari?– The losing litigant from a lower court’s decision

The Caseload of the Supreme Court

• How many writs of certiorari are filed each year?

– 1945: 1,460– 1960: 2,313– 2006: 8,857

The Caseload of the Supreme Court

• How many writs of certiorari are granted?

– Typically, around 85 per term

Types of Opinions

• Majority opinion

– Announces the outcome and reasoning of the Court that is endorsed by a majority of the justices

Types of Opinions

• Concurring Opinion

– When a member of the majority coalition disagrees with the reasoning of the majority opinion, but still favors the outcome

– Also can be used when a member of the majority coalition simply wishes to expand upon the reasoning of the majority opinion

Types of Opinions

• Dissenting opinion

– Articulates disapproval of the majority’s favored disposition and reasoning

– A tool for justices who see danger in the majority’s holding to give voice to their concerns

What is a Norm of Consensus?

• The idea that justices are compelled to conceal their personal disagreements from the public in order to strengthen the authority of the Court

The Norm of Consensus

• Chief Justice John Marshall began this tradition in 1801

• The tradition continued for nearly a century and a half

• The norm of consensus was in operation during eight chief justiceships (Marshall, Taney, Chase, Waite, Fuller, White, Taft, and Hughes)

The Disappearance of the Norm of Consensus

The Promotion of Harlan F. Stone

• Stone was an associate justice for 16 years prior to being elevated to chief justice in 1941

• In Stone’s own words:– “I do not think it is the appropriate function of a

Chief Justice to attempt to dissuade members of the Court from dissenting . . .”

Percentages of Authored Dissenting Opinions of Selected Chief Justices

• Chief Justice Marshall (1801-1835) authored a dissent in 0.5 percent of all cases

• Chief Justice Taft (1921-1930) authored a dissent in 0.1 percent of all cases

• Chief Justice Stone (1941-1946) authored a dissent in 2.7 percent of all cases

Authoring a Dissenting Opinion

Comparing Dissent Rates of Selected Courts

• Marshall Court (1801-1835)– Decided more than 1,000 cases

• A dissenting opinion was filed in 6.5 percent of all cases

• Fuller Court (1888-1910)– Decided more than 4,900 cases

• A dissenting opinion was filed in 7.7 percent of all cases

Comparing Dissent Rates of Selected Courts

• Stone Court (1941-1946)– Decided more than 850 cases

• A dissenting opinion was filed in 44.7 percent of all cases

Research Questions

• Have any of Stone’s successors attempted to reestablish the norm of consensus?

• How often do contemporary chief justices dissent from the majority?

• When the chief justice does dissent, does he give voice to his concerns by authoring an opinion or does he join another justice’s opinion?

References• Danelski, David J. 1986. “The Influence of the Chief Justice in the Decisional Process of the Supreme

Court.” In Walter F. Murphy and C. Herman Pritchett, eds., Courts, Judges, and Politics. 4th ed. New York, NY: Random House.

• Epstein, Lee, Jeffrey A. Segal, and Harold J. Spaeth. 2001. “The Norm of Consensus on the U.S. Supreme Court.” American Journal of Political Science 45(2): 362-377.

• Epstein, Lee, Jeffrey A. Segal, Harold J. Spaeth, and Thomas G. Walker. 1996. The Supreme Court Compendium: Data, Decisions & Developments. 2nd ed. Washington, D.C.: Congressional Quarterly, Inc.

• Mason, Alpheus T. 1956. Harlan Fiske Stone: Pillar of the Law. New York, NY: Viking Press.

• Scalia, Antonin. 1994. “The Dissenting Opinion.” Journal of Supreme Court History 1994: 33-44.

• Steamer, Robert J. 1986. Chief Justice: Leadership and the Supreme Court. Columbia, SC: University of South Carolina Press.

• Segal, Jeffrey A., and Harold J. Spaeth. 2002. The Supreme Court and the Attitudinal Model Revisited. Cambridge, UK: Cambridge University Press.

• Supreme Court Website. 2009. http://www.supremecourtus.gov. [10 March 2009].

• Ulmer, S. Sidney. 1986. “Exploring the Dissent Patterns of the Chief Justices: John Marshall to Warren Burger.” In Sheldon Goldman and Charles M. Lamb, eds., Judicial Conflict and Consensus: Behavioral Studies of American Appellate Courts. Lexington, KY: University Press of Kentucky.

• Wahlbeck, Paul J., James F. Spriggs II, and Forrest Maltzman. 1999. “The Politics of Dissents and Concurrences on the U.S. Supreme Court.” American Politics Quarterly 27(4): 488-514.

Acknowledgements

• Paul M. Collins, Jr., Ph.D., Assistant Professor, Department of Political Science

• Barbara Kirby, J.D., Lecturer, Department of Political Science

• Andrea Kirk, Ph.D., Lecturer, Honors College• Susan Eve, Ph.D., Associate Dean, Honors College• Gloria Cox, Ph.D., Dean, Honors College• Warren Burggren, Ph.D., Dean, College of Arts and

Sciences• Wendy Wilkins, Ph.D., Provost and Vice President of

Academic Affairs• Gretchen Bataille, Ph.D., President, University of North

Texas