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Deciding to Agree: Explaining Consensual Behavior on the United States Supreme Court
Unformatted Document Text:  6 consensual norms in the modern era coincides with the extra-institutional rise of legal realism and legal liberalism first brought to the Court by New Deal justices (O’Brien 1999; Pritchett 1948). However, we are also interested in the intra-institutional developments that have contributed to and reinforced the modern culture of individual expression that continues to manifest itself on the Court. In this section, we provide a brief overview of a number of Supreme Court practices that ended and some new developments that began from the Warren through Rehnquist Courts, which we suggest have served to undermine the ability to reach consensus. When joined with external developments such as post-legal realism personnel changes, we submit that these internal institutional transformations help explain how the modern Court has become inhospitable to the kind of consensus achieved in previous eras. In the subsequent section, we then turn to a quantitative analysis of factors that influence consensus, despite these institutional constraints. Because we are interested in how the Court can achieve consensus in an era of dissensus, we think it appropriate to first specify the intra-institutional developments that structure the process. Specifically, we will briefly discuss the following institutional developments: law-clerk influence, equalization of opinion assignment, and changes in conference voting, all hallmarks of the Warren Court; the end of notation, creation of the syllabus, and formalization of dissent assignment during the Burger Court; and increased bureaucratization in the form of rapid opinion circulation with majority opinion assignment penalties as well as the shrunken docket in the Rehnquist Court. The Warren Court We suggest that one institutional constraint on the ability to achieve consensus has been the increasing responsibility ceded to law clerks—specifically with regard to opinion writing.

Authors: Corley, Pamela., Steigerwalt, Amy. and Ward, Artemus.
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consensual norms in the modern era coincides with the extra-institutional rise of legal realism
and legal liberalism first brought to the Court by New Deal justices (O’Brien 1999; Pritchett
1948). However, we are also interested in the intra-institutional developments that have
contributed to and reinforced the modern culture of individual expression that continues to
manifest itself on the Court. In this section, we provide a brief overview of a number of Supreme
Court practices that ended and some new developments that began from the Warren through
Rehnquist Courts, which we suggest have served to undermine the ability to reach consensus.
When joined with external developments such as post-legal realism personnel changes, we
submit that these internal institutional transformations help explain how the modern Court has
become inhospitable to the kind of consensus achieved in previous eras. In the subsequent
section, we then turn to a quantitative analysis of factors that influence consensus, despite these
institutional constraints.
Because we are interested in how the Court can achieve consensus in an era of dissensus,
we think it appropriate to first specify the intra-institutional developments that structure the
process. Specifically, we will briefly discuss the following institutional developments: law-clerk
influence, equalization of opinion assignment, and changes in conference voting, all hallmarks of
the Warren Court; the end of notation, creation of the syllabus, and formalization of dissent
assignment during the Burger Court; and increased bureaucratization in the form of rapid opinion
circulation with majority opinion assignment penalties as well as the shrunken docket in the
Rehnquist Court.
The Warren Court
We suggest that one institutional constraint on the ability to achieve consensus has been
the increasing responsibility ceded to law clerks—specifically with regard to opinion writing.


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