Collegiality among U.S. Supreme Court Justices?

By Yalof, David A.; Mello, Joseph et al. | Judicature, July/August 2011 | Go to article overview

Collegiality among U.S. Supreme Court Justices?


Yalof, David A., Mello, Joseph, Schmidt, Patrick, Judicature


An early assessment of the Roberts Court

The Rehnquist Court, which concluded its 19-year run during the summer of 2005, was frequently depicted as a fractured and divisive body.1 Much of this divisiveness was attributed to strong ideological differences among some of the justices. Indeed, the Rehnquist Court was quite often interpreted through the classic lens of ideological warfare, with three of the most conservative justices in history (Scalia, Thomas, and Rehnquist) waging war both against the two more moderate conservatives (O'Connor and Kennedy) as well as against three of the most liberal justices in history (Breyer, Ginsburg, and Stevens).3

By this well-accepted account, the divisiveness on the Court was further fueled by the belligerent style of certain justices, including most notably, Antonin Scalia. During his nearly two decades on the Rehnquist Court, Scalia cemented his reputation as a stubborn and recalcitrant character, relentlessly attacking those who might disagree with his ideology or judging philosophy.3

Scalia's early years on the Court loomed large in constructing this account of a bitterly divided Supreme Court. Speaking of the Fall 1988 term in particular, which was marked by frequent Scalia diatribes against his fellow brethren, one commentator called it "the most rancorous" high court term in 50 years/ Neiu York Times reporter Linda Greenhouse has remarked on the vituperative and persona] tone of the justices in the early years of the Rehnquist Court, making special note of Scalia's stinging public comments.5 Tony Mauro of USA Today reported that under Rehnquist's leadership Scalia grew "increasingly nasty" with his fellow justices, taking "verbal swipes" at Sandra Day O'Connor in particular when she did not vote as conservatively as he would like.6

When Chief Justice John Roberts took over the helm of the Court in September of 2005, he declared that one of his main goals was to bring a more "collegial atmosphere" to the body. Specifically, he expressed an interest in adding both "credibility and stability" to the law by urging his new colleagues to find agreement in their opinions wherever possible. Recalling the John Marshall Court era of the early 19Lh century - when nearly every case handed down was unanimous - Roberts complained that the divided opinions of the modern era have been "eroding, to some extent, the capital that Marshall built up..." and that the Court is "ripe for a ... refocus on functioning as an institution, because, if it doesn't, it's going to lose its credibility and legitimacy as an institution."7 Roberts told one interviewer that unanimous or nearly unanimous decisions are preferred precisely because they are hard to overturn, while closely divided 5-4 decisions make it harder for the public to respect the Court as an impartial institution that transcends partisan politics.8

What changes in Court procedure did Chief Justice Roberts adopt in pursuit of greater unanimity and consensus? On the surface, no changes were apparent. Indeed, one of the rare comments about changes in the Roberts Court conferences came from Justice Scalia himself, who offered that the new Chief Justice "pretty much run[s] the show the same way" as Rehnquist, though perhaps he lets "people go on a little longer at conference."0 Still, that does not discount the possibility that Chief Justice Roberts has fostered a more collegial environment by strategically chatting with colleagues or providing edits on drafts with an eye towards forging agreements and good relations whenever collegiality seems most at risk.

Scholars have only recently begun to explore distinguishing characteristics of the Roberts Court, including the possible effects of the Chief Justice's efforts to promote collegiality. An initial, more narrow inquiiy into collegiality tends to focus on strict agreement and unanimity rates. Much was made of the degree of unanimity exhibited by the Supreme Court during Roberts' first full term, when more than half of the Court's decisions (55 percent) were unanimous. …

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