Graveyard Dissents on the Burger Court

Journal of Supreme Court History, 40(2): 188-202 (2015)

27 Pages Posted: 7 Oct 2015

See all articles by Greg Goelzhauser

Greg Goelzhauser

Utah State University - Department of Political Science

Date Written: 2015

Abstract

A graveyard dissent occurs when a justice silently acquiesces to the majority disposition and opinion rather than writing separately despite continuing disagreement. Although graveyard dissents were common during the early period of the Court’s history, their continued use in the modern era is puzzling in light of the rise and ubiquity of separate opinion writing. Moreover, voting contrary to one’s sincere preference conflicts with legal and policy based explanations for judicial decision-making. Unfortunately, the systematic exploration of graveyard dissents has been limited by a difficult observational problem: by definition, explanations for this posture are not available in opinions and are otherwise scant in the existing literature. In this article, I leverage memoranda exchanged between justices during the Burger Court era to explain what motivates graveyard dissents. The archival evidence suggests that graveyard dissents are often motivated by institutional time constraints, perceptions of case importance, and the dissolution of minority coalitions. The results shed new light on a puzzling and persistent institutional norm while potentially helping to explain the recent increase in consensus on the contemporary Court.

Keywords: supreme court, dissents, separate opinion writing, Burger Court

Suggested Citation

Goelzhauser, Greg, Graveyard Dissents on the Burger Court (2015). Journal of Supreme Court History, 40(2): 188-202 (2015). Available at SSRN: https://ssrn.com/abstract=2670214

Greg Goelzhauser (Contact Author)

Utah State University - Department of Political Science ( email )

0725 University Blvd.
Logan, UT 84322-0725
United States

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