This study is to a large extent exploratory, but it also reexamines some familiar terrain, builds on the work of a number of scholars, and tests as well as raises hypotheses. It is a broad attempt to explain judicial behavior by considering together two important questions in decisionmaking and impact research: what are the causes and what are the consequences (particularly the policy consequences) of conflict and its resolution in the Supreme Court?

Conflict in the Supreme Court is disagreement among the justices expressed in conference discussions, remarks from the bench, intraCourt communications, votes, and opinions. From a policy perspective,...

Felix Frankfurter once bemoaned the fact that “layman are constantly troubled, even as are lawyers … about division on the Court.” But why, he asked, “should anyone expect nine men … all to have the same thoughts and views. … No one expects such harmony … among physicists, let alone among professors of sociology or history.”¹ According to Frankfurter, the media are largely responsible for such concerns in the public. Just as newspapers are more likely to publish stories about divorces than about marriages, divisions in the Court—the conflict among the justices in nonunanimous cases—make headlines.

Conflict within...

The United States Supreme Court is continually being asked to resolve some of the most significant and controversial political problems facing the nation. The issues raised in the cases accepted for review are—almost by definition—those not resolved elsewhere in the political system. At any given time the Court consists of individuals far more diverse in background and attitudes than the stereotype of the Court as a body of “nine old men” suggests. Only on rare occasions is the Court dominated by the appointees of a single president. Most justices have taken strong stands on the significant questions of...

Given Felix Frankfurter’s reputation for judicial restraint, this chapter analyzes decisions amenable to resolution on the basis of restraint. In so doing it sheds considerable light on the conflict between Frankfurter’s supposed role conception and reality gleaned from an examination of his opinion behavior and also from patterns of voting conflict and consensus among Warren Court justices generally. Specifically, we examine Frankfurter’s voting behavior and opinions on state action and federal agency cases regulatory of business and labor decided during his tenure on the Warren Court, 1953–61.¹ Cases are grouped into four subsets: state regulation of labor, state regulation...

Nonunanimous decisions of collegial courts have been a frequent focus of research in political science for more than three decades. The public expression of dissent has been taken as an objective indicator that legitimate decisional alternatives were open to the judges. Decisions with dissent have therefore been viewed as appropriate data with which to test the influence of judicial attitudes, values, and role orientations on case outcomes. The level of dissent has also frequently been used as an objective indicator of the extent of conflict and consensus in a court. Although unanimous decisions are not necessarily devoid of internal conflict...

The research reported herein focuses on three aspects of the U.S. courts of appeals. First, the chapter surveys the theory underlying the study of dissensus in unanimous decisions by collegial courts. Second, it reports several recent changes in the structure and operation of the courts and how they have affected judicial decision making. Third, it updates a 1976 study of voting behavior on the courts of appeals. The prime objectives of both the 1976 research and this project are to determine whether the relatively low dissent rate on the courts of appeals masks disagreement among the judges and to provide...

Consistency, we are often told, is the hobgoblin of small minds. Yet we are hesitant to suggest that judges and legal scholars who have complained about doctrinal inconsistency, for example, in the Supreme Court’s jurisprudence, are small-minded. Commentators have exhibited concern that the law should be uniform at all levels of the court system and that inconsistency should be avoided. The role of the law as a stabilizing force in society must be recognized, and, unless judicial rulings are reasonably consistent, lawyers will not be able to counsel clients or to keep disputes out of court. That is, of course,...

In this chapter, as in Stephen Wasby’s, one court of appeals is examined in detail to promote an understanding of specific aspects of judicial conflict. Conflict is operationally defined and measured here in terms of voting disagreement. The magnitude of judicial conflict thus increases in direct proportion to increases in the percentage of cases decided nonunanimously. No attempt is made to develop and test an overarching theory of judicial conflict, which ideally should include a number of variables, as other contributors to this book explain in their chapters. Rather, the goal is to look at some largely unexplored dimensions of...

The presence of dissent on collegial courts, especially the U.S. Supreme Court, has long been a research interest in political science. In a shorthand way, the level of dissent reveals the amount of conflict and consensus on appellate courts. Certainly the lack of dissent does not guarantee that judges always agree on issues and solutions to cases,¹ but formal dissents are a clear indicator that judges seriously disagree on basic features of cases. High levels of dissent also have led social scientists to doubt the power ofstare decisisor other legal doctrines to account for most judicial decisions. Judges...

In 1976, the senior authors created an empirical typology of judicial leadership based upon the ratio of non unanimous decisions and dissent rates of individual justices.¹ At that time, the authors promised to validate the technique using opinion assignment and bloc analysis. This chapter takes the first step toward fulfilling that promise by using opinion assignment to measure leadership on two state supreme courts.

Following the general idea of the earlier study, the basic premise of this study is that the chief justice, as formal leader of a state supreme court, is an important determinant of productivity. Productivity on a...

The study of conflict and consensus on state supreme courts has been informed by two major theories: docket composition and justice composition.¹ The docket composition theory suggests that variation in conflict (usually measured as dissent rate) is a function of the types of issues a court must hear. That is, the dissent rate is likely to be higher on courts that are faced with controversial and complex issues than on courts that are confronted with relatively simple issues. The justice composition theory, on the other hand, posits that the conflict rate is determined by the degree of ideological and role...

Despite the frequent admonition of legal scholars and the official disapproval expressed in Canon 19 of the Canon of Judicial Ethics, conflict continues to be an ever-present reality of appellate court environments. One expression of this conflict—dissent behavior—has, for more than three decades, provided the data bases for a wealth of studies that have constructed and tested increasingly more sophisticated models of judicial decision making.¹ At the same time, scholars have demonstrated that conflict is often present even in unanimous cases.²

The vast majority of this work, however, has focused on what S. Sidney Ulmer terms Type I...