The Supreme Court Opinion as Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court

Abstract

The Supreme Court Opinion as Institutional Practice explores historical transformations in practices of Supreme Court decision-making and opinion-writing. It compares the Court's modern practices to those that existed during the era of the Taft Court, from 1921 through 1929. Many of these differences should be understood in the context of the Judiciary Act of 1925, which transformed the Court from a tribunal of last resort into a supervisor of the development of federal law. The article discusses in detail two major changes in the Court's decision-making practices. The first concerns dissent. During the 1921 through 1928 Terms, 84% of the Court's published opinions were unanimous, whereas during the 1993 through 1998 Terms, only 27% of the Court's published opinions were unanimous. Examination of docket books, however, reveals that in the Taft Court era only about 50% of the Court's cases were unanimous at conference. Intra-Court memoranda indicate that there was a strong "norm of acquiescence", which induced Justices to join opinions with which they disagreed. This norm was sustained by a view of law as primarily embodying the virtues of certainty and reliance. When the Court came to see law as an instrument for the achievement of human purposes, the norm of acquiescence was undermined from within. Also undercutting the norm was the Court's growing recognition of the interdependence of law and political will. The second decision-making practice discussed in detail concerns the citation of law review literature. Between the 1921-1928 Terms and the 1997 Term, references to this literature have increased more than twenty-fold. This change reflects a transformation of the Court's concept of its own judicial authority, from a view primarily grounded in the positive authorization of the state to a view primarily oriented toward the attainment of legal purposes.