NCJ Number
116281
Journal
Judicature Volume: 72 Issue: 5 Dated: (February-March 1989) Pages: 274-281
Date Published
1989
Length
8 pages
Annotation
An analysis was conducted of formally decided cases heard by the U.S. Supreme Court between 1953 and 1986 to determine whether its unanimous decisions can be considered truly consensual.
Abstract
Four operational criteria were used to define consensuality: absence of special concurrences, absence of intercourt uncertainty or conflict in the law, affirmance of lower court decisions, an absence of congruity between the Court's overall ideological orientation and the directionality (liberal or conservative) of decisions that otherwise appear consensual. Results indicate that only 18 of the Warren Court's 647 unanimous decisions and 6 of the Burger Court's 860 unanimous decisions meet the criteria for consensus. However, modifications of the criteria increase the number of cases that can be considered consensual to 58 for the Warren Court and 50 for the Burger Court. Results suggest that the criteria of consensus usually applied to analyses of lower court decisionmaking are not applicable at the Supreme Court level. Justice's assertions about their gatekeeping criteria accords with their behavior, and conflict resolution and the resolution of disputes overwhelmingly guide decisions on the merits. Because gatekeeping criteria do guide justices' behavior, justices' policy preferences do not come into come into play because deviations from these criteria are virtually nonexistent. 38 footnotes.