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

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 Courtﾒ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