The Norm of Consensus on the U.S. Supreme Court

Abstract

For four decades scholars have sought to explain the rise of dissensus on the U.S. Supreme Court. While the specific explanations they offer vary, virtually all rest on a common story: during the nineteenth (and into the twentieth) century, the Supreme Court followed a norm of consensus. That is, the justices may have privately disagreed over the outcomes of cases but masked their disagreement from the public by producing consensual opinions. The problem with this story is that its underlying assumption lacks an empirical basis. Simply put, there is no systematic evidence to show that a norm of consensus ever existed on the Court. We attempt to provide such evidence by turning to the docket books of Chief Justice Waite (1874-1888) and making the following argument: if a norm of consensus induced unanimity on Courts of by-gone eras, then the norm may have manifested itself through public unanimity in the face of private conference disagreements. Our investigation, which provides systematic support for this argument and thus for the existence of a norm of consensus, raises important questions about publicly unified decision-making bodies, be they courts or other political organizations. ver the course of four decades, scholars have produced mounds of paper providing explanations for the cause of the dramatic phenomenon depicted in Figure 1: the rise of dissensus on the U.S. Supreme Court (e.g., Caldeira and Zorn 1998; Halpern and Vines 1977; Mason 1956; Murphy 1964; Pritchett 1948; Walker, Epstein, and Dixon 1988).1 Certainly the specific reasons they offer vary (compare Goldman 1982 and Haynie 1992), but the underlying story contemporary scholars tell does not. During most of the nineteenth (and into the twentieth) century dissent rates remained low, so the story goes, because Supreme Court justices followed a norm of consensus, reflecting their belief that unanimity would greatly strengthen the authority of the Court and its rulings (Rehnquist 1996, 58; see also Beveridge 1919; Goebel 1971). That is, the justices may have privately disagreed over the outcomes of cases but they masked their disagreements from the public by producing consensual