Bench Memos

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Reaching Consensus


Disagreement on a case (as on just about anything else) may reflect an unbridgeable divide, or it may result from inadequate efforts to achieve attainable agreement.  As I understand Chief Justice Roberts’s recent comments (reported here) about fostering greater consensus on the Supreme Court, Roberts is focused on the latter.  In his words:


“I am not talking about subordinating strongly held views to achieve an artificial consensus. But I am talking about deciding cases on narrow grounds, when that allows broader agreement.”


So long as the “narrow grounds” provide the clarity and guidance that the Court sought to achieve when it granted review of the case, Roberts’s goal seems to me generally reasonable.  Perhaps more importantly, greater deliberation among the justices ought to have the additional benefit of producing higher-quality opinions.


From anecdotal accounts, it appears that Roberts has already fostered greater deliberation among the justices at the post-argument conferences.  But what is most needed is serious deliberation among the justices after the draft majority opinion is circulated.  I remain of the view (expressed here in agreement with an October 2005 op-ed by law professor Steven G. Calabresi) that the most valuable step that Roberts could take would be to discourage justices from joining a draft majority opinion until they have had the opportunity to consider the views of other justices regarding that draft.  Specifically, Roberts could establish a “no-join period” of, say, 14 days during which justices who had concerns about the draft majority opinion could circulate memos (or draft concurring or dissenting opinions) setting forth their concerns.


Under the current practice, a justice who has obtained four other votes on his draft majority opinion has a perverse incentive not to alter his opinion, no matter how powerful the points in a draft concurrence or dissent.  That’s quite a barrier to building consensus—and to producing quality opinions.


Update:  On further reflection, I have changed “eminently desirable” in the first paragraph to “generally reasonable”.  There will certainly be occasions when broader grounds are important to establish, even if by a narrower margin.


Tags: Whelan


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