Consensus or Ambivalence? Why Court Traditions Matter

Abstract

National high courts must attempt to manage the tension between the strength of unanimity and the intellectual honesty of fragmented judgments. One obvious tool for balancing these needs is the consensual norm, which sets an informal level of institutional tolerance for publicized dissent. Here, this issue is investigated in comparative perspective using four cases: The High Court of Australia, the Supreme Court of Canada, the Law Lords division of the House of Lords in the United Kingdom, and the United States Supreme Court. Theoretical expectations for the empirical manifestations of consensus in each high court give special attention to the importance of institutional opinion writing traditions on the observable patterns of consensus. The results suggest that evidence that may support the hypothesis that a consensual norm is in operation in a majority opinion court may support the absence of a consensual norm in a seriatim court. When the normal way to communicate consensus is through a concurring opinion and concurring opinions are related to dissenting opinions, this provides evidence of ambivalence about dissent, not a norm of consensus.