Decision‐making Dynamics

Within the Supreme Court, as within any other institution, individuals interact within a matrix of formal rules, informal customs, and norms of behavior. The Court's internal dynamics are affected by justices' ideologies, their views of the judicial role, their strategic concerns, and other crosscutting factors. Informal customs and norms are the most important of these factors, as there are few formal rules to tell the justices how to deal with each other.

Ideology obviously affects the results the justices reach, particularly in nonunanimous cases, but it is hardly the only factor affecting the Court's decision making. Friendships among the justices, perhaps more a function of personality than of politics, cut across ideological lines. More important is the justices' often‐shared view of the Court's role in the American governmental system, which leads to considerable unanimity both in decisions as to which cases to review and in actual decisions on cases. Also relevant are justices' differing strategies vis‐à‐vis the other branches, and they may seek to act strategically with each other as they fashion majorities and opinions.

The chief justice, although technically only the first among equals, can play an important role in the Court's decision‐making dynamics, particularly in helping the Court to function smoothly and cohesively. The “chief” can be extremely effective—Earl Warren was nicknamed “Superchief”—or, like Harlan Fiske Stone and perhaps Warren Burger, can lack the ability to hold the Court together or to affect its dynamics as either its task leader or social leader.

The process of reaching the decision to grant or deny review has undergone some change. Because photocopying now allows all justices to have the same certiorari documents, the chief justice's role in those cases has decreased. Less change has occurred with respect to the process of deciding cases accepted for review. In the past, after their discussion of a case, the justices voted in reverse order of seniority; that is, the most junior first, after their discussion, which is held in descending order of seniority. Nowadays they often dispense with a formal vote. After the discussion, someone is assigned (by the chief justice if he is in the majority) to write the opinion of the Court; the opinion writer then circulates the draft opinion for agreement or comment. When justices circulate concurring opinions, or dissents, they may persuade the justice writing the opinion of the Court to change that opinion; votes may also change. That all justices participate in this process produces a different dynamic from a procedure, used in some state courts, in which cases are assigned to a judge in advance of oral argument.

The Court's dynamics crucially affect the Court's ability to reach a decision and to obtain agreement on an “opinion of the Court.” Whenever the Court is badly fractured, leaving a plurality opinion in which a majority agrees on a result but not on the reasoning used to reach it, the justices fail to give guidance to the lower courts or to lawyers seeking to advise clients. When the public sees the Court as badly split, the Court's legitimacy may be questioned; certainly the notion that the justices find the law rather than make it is difficult to maintain when the Court is regularly divided 5 to 4. Moreover, justices' shrill criticism of each other, in opinions and off‐the‐bench speeches, however much it may prove that the members of the high court are human, also serves to tarnish its legitimacy.

See also Clerks of the Justices.

— Stephen L. Wasby