Supreme Court unanimity collapsed from near-total to under a quarter of decisions

Evidence

The trend toward more dissents and concurrences has been most marked in the U.S. Supreme Court. Oliver Wendell Holmes and Louis Brandeis were “great dissenters” in the first third of the century. In their day, however, most of the Court’s decisions were unanimous. In the last half of the century, unanimous decisions, though still common, were unusual in cases of first importance. The school segregation case, Brown v. Board of Education, was unanimous. This was, however, the result of considerable maneuvering behind the scenes. In the 1973 term, there were 157 full opinions; 33 of them (21 percent) were unanimous; in 79 percent (124 cases) there was a dissenting opinion. The Court, at the end of the century, took many fewer cases (why this is so is far from clear). In the 1999 term, there were 77 full opinions. In 58 percent of them one or more justices dissented. — Lawrence M. Friedman, A History of American Law, 4134

Categorization

• XREF: Builds on ch55’s claim that dissenting opinions grew rapidly across the nineteenth century. — connects to: Fragmented Supreme Court majorities complicate lower courts’ interpretation of rulings — G. Alan Tarr, Judicial Process and Judicial…, 1570; Dissents on multimember courts cannot be explained by legal factors alone — G. Alan Tarr, Judicial Process and Judicial…, 2561; The Supreme Court’s seventy-one annual decisions are systematically unrepresentative of how law works — Frederick Schauer, Thinking Like a Lawyer, 39 (+1 more)

Broader Connections

• Fragmented Supreme Court majorities complicate lower courts’ interpretation of rulings #corroborates (0.85) — G. Alan Tarr, Judicial Process and Judicial…, 1570
• The Supreme Court’s seventy-one annual decisions are systematically unrepresentative of how law works #expands (0.82) — Frederick Schauer, Thinking Like a Lawyer, 39
• Dissents on multimember courts cannot be explained by legal factors alone #expands (0.78) — G. Alan Tarr, Judicial Process and Judicial…, 2561
• Four Supreme Court rulings dismantle organized popular power at every level #exemplifies (0.73) — Wendy Brown, Undoing the Demos, 302