On the Mysterious Demise of Consensual Norms in the United States Supreme Court

Abstract

The early 1940s marked a period in which the consensus norms of the Supreme Court experienced a radical and apparently permanent change. The consistent pattern of relatively high cohesion characteristic of the Court's earlier years gave way to surging rates of concurring and dissenting opinions. The present research is an examination of the factors possibly contributing to the justices' sharply increasing tendency to express their individual views rather than to defer to the opinion of the Court. Using both historical and quantitative methods, the authors evaluate the impact of the Court's discretionary jurisdiction, changing caseload, associate justice characteristics, and judicial leadership. The evidence presented points to the conclusion that in combination with other factors the leadership style introduced by Harlan Fiske Stone in 1941 had a dramatic effect on the consensus norms of the Court.