Judicial Perceptions of Consensual Norms on State Supreme Courts
Swanson, Rick A., Judicature
A central issue in American politics is the role of the courts in our system of separation of powers and checks and balances. Given that courts possess neither the power of the purse nor the power of the sword to enforce their edicts, it is critical that the public perceive courts as neutral arbiters of the law. Otherwise, public support for courts is eroded, courts thus lose their institutional legitimacy in our democratic system, and the public becomes resistant to honoring judicial decisions. Because of this basic necessity on the part of courts to be perceived as politically neutral, courts and judges make great efforts to avoid the appearance of bias.
One way many appellate-level judges believe (either correctly or incorrectly) that they can display neutral decision making is by achieving as much agreement as possible when voting on the same case. Many judges would suggest that if a panel of judges of diverse political and judicial philosophies all agree to the same outcome, this would seem to indicate that there is a single, "objectively correct" or at least "objectively best" legal result. Thus, some appellate-level judges believe that judges who would otherwise dissent should instead join the majority, ideally to the point where the court is unanimous, in order to reinforce public perceptions of neutrality, thus bolstering the court's legitimacy.
Social science research on small-group dynamics predicts that nonconforming individuals within groups such as appellate-level courts will have incentives to conform to the group norm.1 Both quantitative and qualitative studies of consensus on U.S. courts go back several decades. For example, in a 1981 article Steven Peterson2 reviewed 20 different factors that had been hypothesized as influencing judicial dissent or disagreement, also commonly referred to today as dissensus. Peterson summarized the then-current state of research evidence, declaring that only a few of the factors received "confirmation" from that evidence. Specifically, "organizational loyalty, coupled with the sense that dissent hurts the court, leads to individuals being less dissent-prone," "the existence of intermediate appeals courts is associated with higher dissent rates," and "urbanization is associated with increased dissent levels."3
Since then, the question of consensus versus dissensus has continued to be applied to courts. Yet even the most thorough and rigorous studies of dissent admit it is almost impossible to study the norm of consensus directly. "Informal norms are notoriously slippery and can be difficult to define, much less measure," so that the best scholars can usually hope for is that "behavioral manifestations of norms can, however, serve as meaningful surrogates for the presumed underlying beliefs."4
For example, in an attempt to indirectly determine whether a norm of consensus ever existed on the U.S. Supreme Court, scholars controlled for other possible factors that would lead to consensus or dissensus, such as workload pressures, ideological harmony, and "easy cases." The study concluded that given the inability of other possible explanations to fully explain the high degree of consensus on the Court at certain times, a norm of consensus seems to have independently operated in the past.5
Many other studies have looked at the "behavioral manifestations" of presumed norms of consensus by trying to determine factors that might weaken such a norm in particular instances. Dissent on the U.S. Supreme Court, for example, is more likely when there is ideological disagreement.6 On the U.S. courts of appeals, a seminal study of dissent concluded the factors "most strongly related to high rates of dissent were the presence of difficult legal issues in cases, ideological diversity in the panels, urbanism, reversals of decisions below, and the policy direction of the decision."7 Other scholars have shown that dissent is more likely on the U.S. courts of appeals when a court is reversing the trial court decision. …