Revisiting the Mysterious Demise of Consensual Norms in the U.S. Supreme Court

47 Pages Posted: 29 Mar 2010 Last revised: 4 Apr 2010

See all articles by Marcus E. Hendershot

Marcus E. Hendershot

Oklahoma State University

Mark S. Hurwitz

Western Michigan University - Department of Political Science

Drew Lanier

University of Central Florida

Richard Pacelle

Georgia Southern University

Date Written: April 3, 2010

Abstract

In their seminal article on the historical rise of dissent activity, Walker, Dixon, and Epstein (1988) consider a number of competing hypotheses, such as the transition to a discretionary docket, changes in caseload levels, and alteration of the Courtï¾’s membership, before ultimately identifying Chief Justice Stone as the culprit for the transformation of opinion formation norms. To some extent this Stone-did-it conclusion has been challenged by a small number of time series analyses (e.g., Haynie 1992; Caldeira and Zorn 1998; Hurwitz and Lanier 2004), but a rigorous analysis that simultaneously tests each of Walker, Dixon, and Epstein's hypotheses is still missing from the judicial branch literature. This lacuna is unfortunate, since a fundamental shift of this nature most likely will have roots that extend beyond the leadership capabilities of a single Chief Justice. This analysis seeks to provide a more nuanced approach to the question of which factors, if any, can be associated with this wholesale change in Supreme Court decision making. It invokes vector-error correction techniques to estimate refined dependent variables (e.g., both Chief Justice and Associate Justice dissent / concurrence rates), and provide evidence on the levels of cointegration that may exist among measures associated with the 5 primary hypotheses first proposed by Walker, Dixon, and Epstein.

Keywords: supreme court, dissent, concurrence, norm of consensus, time series

JEL Classification: k00

Suggested Citation

Hendershot, Marcus E. and Hurwitz, Mark S. and Lanier, Drew and Pacelle, Richard, Revisiting the Mysterious Demise of Consensual Norms in the U.S. Supreme Court (April 3, 2010). Western Political Science Association 2010 Annual Meeting Paper , Available at SSRN: https://ssrn.com/abstract=1580529

Marcus E. Hendershot (Contact Author)

Oklahoma State University ( email )

Department of Political Science
201 Murray Hall
Stillwater, OK 74078-0555
United States

Mark S. Hurwitz

Western Michigan University - Department of Political Science ( email )

Kalamazoo, MI 49008
United States
269-387-5372 (Phone)

Drew Lanier

University of Central Florida ( email )

PO Box 161356
Orlando, FL 32816-1400
United States

Richard Pacelle

Georgia Southern University ( email )

P.O. Box 8151
Statesboro, GA 30460-8151
United States

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