Silent Acquiescence on the Supreme Court

Abstract

The norm of silent acquiescence on the Supreme Court was thought to have been eviscerated in the twentieth century by certain institutional reforms and the rise of dissenting opinions. Given that silent acquiescence is difficult to observe, however, the extent to which this norm persists on the modern Court remains unclear. To overcome this observational difficulty, I analyze private memoranda exchanged by justices who served during the Burger Court. The empirical results suggest that silent acquiescence is a rare but regular occurrence on the modern Court, and is more likely to occur in comparatively unimportant cases. Notwithstanding institutional and personnel changes that limited silent acquiescence and precipitated an increase in dissenting opinions, it appears that the practice of go-along voting continued throughout the Burger Court. The results have implications for our understanding of separate opinion writing, judicial decision-making, and judicial legitimacy.

KEYWORDS::

• Supreme Court
• dissenting opinions
• opinion writing

ACKNOWLEDGMENTS

Thanks to Kaylee Johnson for excellent research assistance, and Nicole Vouvalis for helpful comments.

Notes

Docket No. 83-558, Letter from Blackmun to Burger (June 13, 1984). All private papers referenced here can be accessed electronically via the Supreme Court Opinion Writing Database (Wahlbeck, Spriggs, and Maltzman 2011).

This percentage was calculated using the Supreme Court Database (available at http://scdb.wustl.edu) and decision types 1, 6, and 7.

Various historical accounts suggest that other justices may have acquiesced in Brown as well (see, e.g., Klarman 2004).

Docket No. 70-281, Memorandum from Burger to the Conference (March 22, 1971).

Docket No. 70-281, Letter from Black to Burger (March 25, 1971).

In an effort to determine whether widespread consensus on the early Supreme Court was due to a prevailing consensual norm or the prevalence of easy cases, Epstein, Segal, and Spaeth (2001) analyzed data from docket books during Chief Justice Waite's tenure (1874–1888). They demonstrated that justices on the Waite Court routinely withheld dissent after voting against the majority position at conference even in difficult cases. Although this is strong evidence in support of the proposition that a consensual norm once prevailed on the Supreme Court, it is not meant to suggest that justices on the modern Court engage in go-along voting.

Docket No. 840, Letter from Burger to Black (May 20, 1971).

There is, however, little reason to suspect that unobserved instances are nonrandom.

Other rare but important events in Supreme Court decision making include reading dissents from the bench (Blake and Hacker 2010), citing the Federalist Papers (Corley, Howard, and Nixon 2005), avoiding constitutional cases (Goelzhauser 2011), rearguing cases (Hoekstra and Johnson 2003), and calling for the views of the solicitor general (Johnson 2003).

Justice Douglas acquiesced twice during OT 1974, with both instances occurring prior to the debilitating stroke that affected his performance that year.

All independent variables are from Collins (2008), which utilizes information from Spaeth's justice-level Supreme Court Database. Additional data sources are noted where applicable.

The highest pairwise correlation between any of the key explanatory variables is r = 0.31, which is below the threshold of what is “generally considered to represent [a] low or weak correlation” (Taylor 1990, 37). Although each of these variables taps into the broader concept of case importance, they are conceptually distinct and represent different dimensions of the concept. A factor analysis reveals that the key explanatory variables do not load onto a single dimension with an eigenvalue greater than one.

The number of issues and legal provisions in a case are derived from the Supreme Court Database. The highest pairwise correlation between the complexity variable and any of the key explanatory variables is r = 0.12.

The models do not include a chief justice indicator since that reduces to a Chief Justice Burger indicator in this sample. However, one of the robustness checks presents results from a model with justice fixed effects.

Ideal point estimates come from Martin and Quinn (2002).

To ensure this variable does not simply tap into ideological compatibility, the joining percentage is regressed on the measure of Ideological Distance and the residuals used as a proxy for cooperation (Collins 2008; Wahlbeck, Spriggs, and Maltzman 1999).

An alternative approach would be to look at decisions to acquiesce only if a justice voted with the minority at conference, linking this project to the literature on voting fluidity (e.g., Maltzman and Wahlbeck 1996a). There are two problems with this approach that make it unfeasible for this study. First, not every graveyard dissent is associated with a conference vote in the Expanded Burger Court Database. This may be because a conference vote was not recorded or because the conference vote was not a simple vote to affirm or reverse. Second, some graveyard dissents are associated with conference votes suggesting that the justices were in the majority at conference, possibly owing to mistakes in conference records (see Maltzman and Wahlbeck 1996b). It is important to avoid losing observations because of how few graveyard dissents there were during the sample period. Moreover, the approach employed here ensures that this is a conservative test of the hypotheses with results biased against finding statistical significance.

Brackets contain 90 percent confidence intervals.

Including a measure of legal salience in the model, denoting whether a case overturned a precedent or invalidated a law on constitutional grounds, yields results that are statistically and substantively similar. Moreover, the estimated coefficient for the legal salience variable is not statistically distinguishable from zero.

Including a variable scoring the number of years served by a justice yields statistically and substantively similar results. Justices who are late producing assigned opinions may be more likely to acquiesce. However, data availability and difficulty determining what constitutes timely opinion production prohibits including such a variable. In any event, it is unlikely that such a variable would be correlated with any of the key explanatory variables, thereby mitigating against any omitted variable bias concern.

Given that workload is a difficult concept to capture empirically due to its varied dimensions, the term fixed effects approach is better than selecting an arbitrary indicator. Nonetheless, robustness checks using several indicators of workload resulted in statistically and substantively similar results for the key explanatory variables. These measures included the total number of cases filed, total docket size, total number of cases disposed, the number of cases remaining on the docket at the end of the term, and the total number of written opinions produced during the term (all data were collected from the Federal Judicial Center). In addition, I fit a model including a justice-specific measure of workload based on the total number of opinions each justice produced in a particular term. That measure of workload is not associated with changes in the probability of go-along voting, and the results for the key explanatory variables were statistically and substantively similar.

The syllabus, formal dissent assignment, and number of variables are not jointly significant (p =.65).

According to data collected from the Federal Judicial Center, the average number of written opinions per term delivered by the Burger Court was about 152 compared to 76 in 2012. The average docket size per term during the Burger Court was about 4,811 cases compared to 8,806 cases in 2012.