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The Quixotic Search for Consensus on the U.S. Supreme Court: A Cross-Judicial Empirical Analysis of the Rehnquist Court Justices

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  • Gerber, Scott D.
  • Park, Keeok

Abstract

In this first systematic and extensive application of cross-judicial methodology, we examine the members of the Rehnquist Court (1986–94 terms) with prior appellate court experience to discern any correlation with their Supreme Court behavior in terms of nonconsensual opinion writing and voting. We find that they become less consensual as justices than they were as judges in the lower court. Importantly, this finding holds after controlling for such institutional differences between the two court levels as size, ideology, case types, stare decisis, and norms. Consistent with the neoinstitutional perspective, we surmise that this behavior change is due to the modern Supreme Court being unique, a court on which the members feel it is desirable, necessary, and possible to express policy disagreements with the majority via separate opinions and votes.

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  • Gerber, Scott D. & Park, Keeok, 1997. "The Quixotic Search for Consensus on the U.S. Supreme Court: A Cross-Judicial Empirical Analysis of the Rehnquist Court Justices," American Political Science Review, Cambridge University Press, vol. 91(2), pages 390-408, June.
    • Handle: RePEc:cup:apsrev:v:91:y:1997:i:02:p:390-408_21
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    Cited by:

    1. Niblett, Anthony & Yoon, Albert H., 2015. "Judicial disharmony: A study of dissent," International Review of Law and Economics, Elsevier, vol. 42(C), pages 60-71.
    2. Muro, Sergio & Amaral-Garcia, Sofia & Chehtman, Alejandro & Garoupa, Nuno, 2020. "Exploring dissent in the Supreme Court of Argentina," International Review of Law and Economics, Elsevier, vol. 63(C).
    3. Nuno Garoupa & Laura Salamero-Teixidó & Adrián Segura, 2022. "Disagreeing in private or dissenting in public: an empirical exploration of possible motivations," European Journal of Law and Economics, Springer, vol. 53(2), pages 147-173, April.

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