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Abstract:
In all President George W. Bush made three nominations to the Supreme Court: John Roberts, Harriet Miers, and Samuel Alito. I suggest that a key factor in the selection of each of these nominees was their stance on the issue of executive authority and the war on terrorism. While evidence suggests that on a number of issues Miers was a very different nominee, or at least a potentially very different nominee, from Roberts and Alito, I submit that on the issue of executive authority all three were seen by the Bush administration as reliable votes for the New Paradigm or Unitary Executive theory of government. In the following paper I conduct a content analysis of Alito's senate confirmation hearing. Did the Senate make the issue a priority? Was the issue treated in a partisan fashion? Was the nominee forthcoming or evasive in his responses on the topic?

In order to answer these queries, I employ a content analysis of the questioning behavior of the members of the Senate Judiciary Committee. Recent news accounts of warrantless wiretapping and torture increased the issue's value as senators used executive-authority exchanges to signal constituents and score points with their colleagues. I find that of the substantive issues discussed, executive authority matters were addressed as much as abortion and both outpaced all other substantive issues that were raised. Furthermore, executive authority issues were treated in a partisan fashion with Democrats far more likely to raise the issue than Republicans and far more likely to be skeptical and critical in their remarks then their GOP colleagues who were almost always positive and supportive of the Bush administration and the nominee. Ultimately, my results provide support for recent studies that suggest senators engage in strategic and partisan behavior in the confirmation process.

Law, Courts, Supreme Court, Appointments, Senate Confirmation, Justice Samuel Alito

Abstract:
How, in a time of increasing divisiveness and party polarization - a divisiveness that is evident in the public, in Congress, and within the Supreme Court itself - does the Court ever achieve consensus? In this paper we examine how the Supreme Court achieves consensus in its decision-making, and what factors affect the level of consensus that is achieved by the Court. We examine all cases decided between 1953 and 2006 to determine what factors influence the Court's ability to achieve consensus in these cases. We find that consensus is more likely when the justices are ideologically compatible and when the case is easy.

supreme court, judicial decision-making, unanimity, judicial legitimacy

Abstract:
Plurality decisions on the Supreme Court represent extreme dissensus. In those cases, no clear majority is formed for any one controlling rationale for the final disposition. Such decisions are important to understand both because they result in the erosion of the Court’s credibility and authority as a source of legal leadership, and because they teach us broader lessons about judicial decision making. In this paper we ask: what causes the Court to issue an opinion which lacks precedential value? We propose and test three theories to explain plurality decisions - a social consensus account, a “hard” case theory, and an explanation based on the “collegial game.” Hypotheses are tested based on all orally argued cases during the 1953-2006 terms. We find that splintering is more likely when the Court reviews contentious or politically salient questions, in constitutional cases, and when the median justice writes the opinion. When the Chief Justice assigns the opinion, plurality decisions are less likely. We discuss our findings in light of existing theories of judicial decision making and examine how our new understanding of plurality opinions sheds light on decision making on the Court more generally.

Plurality Opinions, US Supreme Court