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Deciding to Agree: Explaining Consensual Behavior on the United States Supreme Court
Unformatted Document Text:  7 While early clerks drafted some opinions as an exercise in learning the law, it was not until opinions were assigned equally that justices began relying on their clerks for opinions (Ward and Weiden 2006). We suggest that the rise of clerks undermined the ability to achieve consensus. With clerks drafting opinions, it became less costly and gave justices further incentive to dissent. Following enactment of the Judiciary Act of 1925, which gave the Court near total discretion over its docket and reduced opinion-writing pressures, Chief Justices Hughes and Vinson took steps to employ a more equal distribution of opinions. However, it was not until Earl Warren took over as Chief that the equality principle of opinion assignment became firmly institutionalized (Slotnick 1979). Justice Brennan remarked that Warren “bent over backwards in assigning to assure that each Justice, including himself, wrote approximately the same number of Court opinions and received a fair share of the more desirable opinions” (Brennan 1974: 2). Justice Douglas commented on the new system: “It has disadvantages to those of us who get out our work promptly because there is practically nothing to do from the first of May on. And judges who work more slowly are working long hours, Sundays, until the whole thing comes to a halt sometime near the end of June” (Douglas 1963). Justices increasingly turned to clerks to help keep up the pace. We suggest that one unintended consequence of clerk-written opinions is the incentive it provides the justices to express their views individually, thereby undermining consensus. We also suggest that the order in which votes are taken in conference may have an effect on the ability of the Court to achieve consensus. Conference discussion has always proceeded in order of seniority beginning with the Chief Justice. However, during the mid-1960s Warren Court, the conference voting order shifted from the most junior voting first and the Chief last to

Authors: Corley, Pamela., Steigerwalt, Amy. and Ward, Artemus.
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While early clerks drafted some opinions as an exercise in learning the law, it was not until
opinions were assigned equally that justices began relying on their clerks for opinions (Ward and
Weiden 2006). We suggest that the rise of clerks undermined the ability to achieve consensus.
With clerks drafting opinions, it became less costly and gave justices further incentive to dissent.
Following enactment of the Judiciary Act of 1925, which gave the Court near total
discretion over its docket and reduced opinion-writing pressures, Chief Justices Hughes and
Vinson took steps to employ a more equal distribution of opinions. However, it was not until
Earl Warren took over as Chief that the equality principle of opinion assignment became firmly
institutionalized (Slotnick 1979). Justice Brennan remarked that Warren “bent over backwards in
assigning to assure that each Justice, including himself, wrote approximately the same number of
Court opinions and received a fair share of the more desirable opinions” (Brennan 1974: 2).
Justice Douglas commented on the new system: “It has disadvantages to those of us who get out
our work promptly because there is practically nothing to do from the first of May on. And
judges who work more slowly are working long hours, Sundays, until the whole thing comes to a
halt sometime near the end of June” (Douglas 1963). Justices increasingly turned to clerks to
help keep up the pace. We suggest that one unintended consequence of clerk-written opinions is
the incentive it provides the justices to express their views individually, thereby undermining
consensus.
We also suggest that the order in which votes are taken in conference may have an effect
on the ability of the Court to achieve consensus. Conference discussion has always proceeded in
order of seniority beginning with the Chief Justice. However, during the mid-1960s Warren
Court, the conference voting order shifted from the most junior voting first and the Chief last to


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