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1. The Puzzle of Unanimity: Consensus on the United States Supreme Court Pamela C. Corley1 Amy Steigerwalt2 Artemus Ward3 1Southern Methodist University 2Georgia State University 3Northern Illinois University
2. Convention: ideological division Media accounts routinely paint a portrait of a deeply ideologically divided Court: “An ideologically divided Supreme Court wrestled Wednesday” with an Establishment Clause case (Biskupic 2010). “The Supreme Court yesterday split along a familiar ideological battle line in its consideration of the Voting Rights Act” (Barnes 2009).
3. C. Herman Pritchett and the quantitative study of judicial behavior Pritchett was the first political scientist to use quantitative methods to study judicial behavior. He argued that unanimity results when “the facts and the law are so clear that no opportunity is allowed for the autobiographies of the justices to lead them to opposing conclusions” (1941, 890). He then proceeded to ignore unanimous decisions in his analysis of judicial behavior since he simply assumed that legal factors sufficiently explained unanimity.
4. The failure of the attitudinal model Segal and Spaeth (1993, 2002) do not provide an analysis of—nor an explanation for—unanimous cases. According to one scholar, “If we exclude a large proportion of cases from our analysis, claiming that we cannot predict or explain them because of their unanimity, we are certainly missing a large part of the behavior of the Supreme Court. We are then left guessing what happened in those cases” (Benesh 2003, 124).
5. Theory of Legal Certainty Consensus results from clarity and certainty in applying the law One answer is legally stronger than any other. If the law is clear, justices’ ability to vote their attitudes is constrained. Law and attitudes simultaneously operate in every case, and the degree of influence each exerts exists along a continuum. If the level of legal certainty is low, the constraining force of law is minimal or even absent. Justices’ personal policy preferences determine the outcome of the case and the chance of unanimity is low. If level of legal certainty is high, law acts to constrain justices’ ability to vote their preferences. Law predominates and the chance of unanimity is high. Thus, the level of legal certainty either constrains or enables the operation of attitudes. Barak (2005): “Judicial discretion…[reflects] uncertainty in law.”
6. Theory of Legal Certainty (cont.) According to Baum: “The easy case gives precedence to legal considerations, because judges are directed to the result that has greater legal support….[J]udges are unlikely to reach a decision consistent with their policy preferences when they would have great difficulty justifying it in legal terms.” Recognize that all cases decided by Supreme Court are “difficult.” “Even in hard cases, there is usually one side that emerges as slightly stronger than the other” (Kerr 2009). When a case contains “appreciable legal ambiguity,” judicial discretion is unfettered and justices can freely rely on their attitudes (Kerr 2009) “The region of legal uncertainty is where judges render decisions with the least legal guidance, and where judges’ particular mix of legal and social views has the most leeway and impact” (Tamanaha 2010, 190).
7. Constraining Capacity of Law Legal Considerations Attitudes Decision Legal Considerations
8. Constraining Capacity of Law Richards and Kritzer (2002) Justices, using their attitudes, create jurisprudential regimes which then guide future behavior. Bailey and Maltzman (2008) Isolate the influence of non-policy factors on decision-making, showing justices are constrained by stare decisis, judicial restraint, and strict interpretations of First Amendment Bartels (2009) Examines how some legal rules act to constrain justices while others grant justices a significant amount of discretion
9. Previous attempts to study unanimity Focused primarily on question of whether unanimous decisions increase legitimacy of Court. Numerous studies have analyzed breakdown in “norm of consensus.” Grossman (1967) argued that attitudinal factors influenced even unanimous votes while Goldman (1969) argued that “objective” case situations offer little room for attitudes to influence justices’ voting in unanimous cases. Brenner and Arrington (1987) found that liberal outcomes dominated unanimously decided cases.
10. Previous attempts to study unanimity (cont.) Hensley and Johnson (1998) examined 1986-1990 terms, finding that unanimous cases more likely: routine cases liberal cases non-civil liberties and rights cases cases involving federal action cases where less time is spent between oral argument and decision date. Edelman, Klein, and Lindquist (2008) and Roy and Songer (2011) focus on whether the attitudinal model explains unanimous decisions of the Supreme Court. Both studies conclude that the justices’ attitudes do not adequately explain how the justices reach consensus, and subsequently conclude that legal or jurisprudential concerns must therefore drive these Supreme Court decisions. They do not, however, provide direct support for the influence of legal factors.
11. Level of Legal Certainty Given all of the information presented to the justices, how certain or uncertain is the legal answer to the question presented in a particular case? We use five discrete variables, each coded dichotomously, to capture the various facets of each case which might suggest a higher or lower level of legal certainty Each variable is coded such that a 1 signals a factor indicating higher legal certainty. We then combine these five variables to create an index, scaled 0 to 5, with 0 reflecting the lowest possible level of legal certainty and 5 representing the highest possible level of legal certainty.
12. Level of Legal Certainty IndexIndependent Variables Legally Noncomplex – Non-complex cases without multiple legal questions or issues in dispute lead to more certainty and less ambiguity for the justices. We counted the total number of legal issues and laws each case addressed. We then coded all cases addressing two or less legal issues and laws as 1 and all cases addressing more than two legal issues and laws as 0. Lack of Amicus Participation Presence of amicus briefs expands the scope of conflict. “[A]mici make it difficult for the Justices to determine the correct application of the law in each case” (Collins 2008: 152). We coded this variable 1 if one or no amicus briefs were filed in the case and 0 if more than one amicus brief was filed.
13. Level of Legal Certainty IndexIndependent Variables (cont.) Lack of Legal Dissensus Among Lower Court Judges Read each lower court opinion and coded whether opinion was unanimous or contained a dissent, a concurrence, or both. Determined which judges heard the case and whether each judge voted with majority in all respects, concurred or dissented. Determined party of appointing president for federal court judges and party of judge or appointing governor for state court judges (proxy for judicial ideology) For federal 3-judge panels, if dissenting judge was of opposite party as the two judges in majority coalition, variable coded 0. If dissenting judge was of the same party as one of the judges in the majority coalition, variable coded 1. For state high courts, and en banc circuit court panels, if majority coalition was composed of members of one party, and all dissenters were members of opposite party, variable coded 0. If either majority coalition or dissenting coalition was ideologically incongruent, variable coded 1. If panel itself was ideologically congruent, and there was a dissent, variable coded 1. If case contained a concurrence, variable coded 1. No dissent or concurrence, variable coded 0.
14. Level of Legal Certainty IndexIndependent Variables (cont.) Statutory Interpretation. Statutes are generally more detailed and less ambiguous than constitutional provisions. Coded 1 if the case decided a statutory issue, 0 otherwise. Lack of Legal Conflict. The existence of a conflict between lower courts suggests there are at least two different viewpoints about which answer is the strongest. To distinguish conflict cases that are more likely to arise from a legal versus an ideological dispute, we focus on whether they involve an important or significant question. If the issue is an important one, it is more likely that the lower court judges are deciding based on ideology rather than law. We therefore hypothesize that when a case lacks a conflict altogether, or involves a conflict over an important issue, the level of certainty should be higher and consensus easier to achieve. Accordingly, we code all cases that lack a conflict or involve an important conflict as 1; all those that involve a conflict in the lower courts over a relatively “unimportant” question we code as 0.
15. Data and Methods All cases appealed from a lower federal court which were granted certiorari, orally argued, and decided by the Supreme Court during the 1953-2004 terms. Unit of analysis is the individual case. Dependent Variables Whether vote in each case was unanimous 40% unanimous Whether vote in each case was unanimous or highly consensual 51% decided with one dissent or complete unanimity
16. Unanimity across courts: Votes on the merits
17. Control variables Attitudinal influences Degree of ideological dispersion Absolute value of the difference between median justice’s Martin-Quinn score and most ideologically distant justice’s Martin-Quinn score Reversal and Extreme Lower Court Decisions Supreme Court is more likely to reach a unanimous or highly consensual decision when the Court is reversing, when there is an ideologically extreme lower court decision, and when both factors are present. Compared ideology of lower court panel with ideology of Supreme Court, identified ideologically extreme judges and justices, and coded case as “extreme” if any member of lower court panel was more extreme than most ideologically extreme Supreme Court justice
18. Control variables (cont.) Strategic influences Chief Justice Writes the Majority Opinion Chief may work harder to command a unanimous Court. Median Justice Writes the Majority Opinion Median justice may be more likely to compromise, accommodate, and otherwise find common ground. Altered Precedent/Declared Statute Unconstitutional Because the literature is mixed on whether the justices are likely to be more consensual or ideological when altering precedent or striking down laws, we do not make a prediction as to the direction of the effect such an action may have on the justices’ ability to reach consensus. Solicitor General is a Party to the Case Previous research shows that the SG wins the vast majority of its cases. We hypothesize that the SG will not only win but win big in terms of unanimity.
19. Control variables (cont.) Institutional Context Chief Justice (Burger Court, Rehnquist Court) – Chiefs can exhibit both task and social leadership in creating a harmonious Court. We created dummy variables for each chief justice and we use Chief Justice Warren as the baseline for comparison. Addition of Syllabus – The Burger Court marked the end of the institutional norms of acquiescence and notation. We suggest that it was the Court’s decision in 1971 to include a syllabus at the start of every opinion specifying each justice’s vote. Decisions during or after 1971 are coded 1; those prior to 1971 are coded 0. Formalization of Dissent Assignment – Following Justice Douglas’ departure in 1975, Justice Brennan began the practice of the senior justice in the dissent coalition formally assigning the dissent. We suggest that this practice provides incentives for justices to dissent and for dissenting opinions to be issued. We code decisions handed down during or after 1975 as 1 and those before 1975 as 0. Docket Size – The number of cases granted by the Court was cut in half during Rehnquist’s tenure. We posit that the shrinking docket allows for greater resources to be devoted to cultivating individual expression, thereby undermining consensus. Number of Law Clerks – Research suggests that law clerks influence the justices’ decisions to issue separate opinions. The number of clerks per associate justice was doubled from one to two in 1947, went to three in 1970, and four in 1974. The Chief can have one more clerk than the associates and retired justices also get a clerk. We include a variable for the total number of law clerks each term and hypothesize that their increasing number and responsibilities further dissensus.
20. Control variables (cont.) Case Factors Issue Area – Ideological preferences in civil liberties cases may be more defined and deeply held than in cases involving government powers or economic activity issues. Political Salience – Salient cases are more likely to be decided ideologically. Salient cases are those that appeared on the front page of the New York Times that day after the decision. Liberal Decision– Previous research shows that liberal decisions dominate unanimously decided cases – even during conservative courts. Time to End of Term – Prior research shows that time pressures appear to effect opinion consensus (less time = less likely to write concurrences). We expect to see more opinion consensus when time is short. We count the number of days between the date of oral argument for each case and the end of the Court’s term (generally July 1).
21. Results: Consensus on the Merits
22. Logit models of unanimous and highly consensual decisions Note: * p < .05, ** p <.01, ***p < .001
23. Note: * p < .05, ** p <.01, ***p < .001 p-values reflect one-tailed tests if directionally hypothesized. R.S.E. = robust standard error clustered on case citation.
24. Change in Predicted Probabilities
25. Change in Predicted Probabilities
26. Interaction EffectsRelationship between Attitudes and Legal Certainty: Unanimous Decisions We tested for an interaction effect between attitudes and legal certainty. Simply put, as the strength of legal factors increases, the impact of attitudes lessens and vice versa. We reran the models but with an important variation: we estimated them with the same independent variables except for level of legal certainty. We then altered the sample on which the model was estimated based on the level of legal certainty in the case. Thus, we estimated four distinct models: one model of unanimity on all cases in which the level of legal certainty was high (greater than 3), another model of unanimity on all cases in which the level of legal certainly was low (less than 4), and two others with the same specifications but for unanimous or highly consensual decisions.
27. Interaction EffectsRelationship between Attitudes and Legal Certainty: Unanimous or Highly Consensual Decisions The results across all four models are in line with our predictions. First, when the level of legal certainty is low, attitudes significantly influence whether the decision will be unanimous or highly consensual. Alternatively, when the level of legal certainty is high, we find no effect for ideological polarization on the likelihood of either a unanimous or a highly consensual decision. In other words, when the level of certainty as to the strongest legal answer is high, the jaws begin to close, hindering the operation of the justices’ attitudes, and making unanimity and highly consensual decisions much more likely.
28. Results: Consensus in Opinion Writing
29. Separate Opinion-Writing Behavior: U.S. Supreme Court, 1800-2004
30. Logit models of unanimous and highly consensual opinions
31. Note: * p < .05, ** p <.01, ***p < .001 p-values reflect one-tailed tests if directionally hypothesized. R.S.E. = robust standard error clustered on case citation.
32. Change in Predicted Probabilities
33. Change in Predicted Probabilities
34. Interaction EffectsRelationship between Attitudes and Legal Certainty: Unanimous OpinionsModel 1 Note: * p < .05, ** p <.01, ***p < .001 p-values reflect one-tailed tests if directionally hypothesized. R.S.E. = robust standard error clustered on case citation.
35. Interaction EffectsRelationship between Attitudes and Legal Certainty: Unanimous OpinionsModel 2 Note: * p < .05, ** p <.01, ***p < .001 p-values reflect one-tailed tests if directionally hypothesized. R.S.E. = robust standard error clustered on case citation.
36. Interaction EffectsRelationship between Attitudes and Legal Certainty: Unanimous OpinionsModel 3 Note: * p < .05, ** p <.01, ***p < .001 p-values reflect one-tailed tests if directionally hypothesized. R.S.E. = robust standard error clustered on case citation.
37. Conclusion Level of legal certainty constrains and enables the ability of justices to vote according to personal policy preferences. High level of legal certainty, Court more likely to achieve a unanimous or highly consensual decision. Low level of legal certainty, Court less likely to achieve a unanimous or highly consensual decision. Court is a political institution and a legal institution.
38. Thank you!
39. Model of Unanimous and Highly Consensual Decisions: Legal Certainty Variables
40. Model of Unanimous and Highly Consensual Opinions: Legal Certainty Variables