Supreme Court
First Monday Among Friends?
Long-standing relationships make Supreme Court justices less disagreeable
By: Morgan L.W. Hazelton, Michael J. Nelson, and Rachael K. Hinkle
The Supreme Court’s new term is right around the corner. On October 2nd, the so-called “First Monday,” the high court will start a term filled with cases with broad-ranging consequences for Americans.
To take a handful of examples, the Court will decide over the next nine months whether laws prohibiting individuals with domestic violence protective orders against them from possessing a gun violate the Second Amendment; if the funding structure for the Consumer Financial Protection Bureau violates the Appropriations Clause; and, whether the Sackler family can avoid liability related to the opioid crisis through the bankruptcy of Purdue Pharma.
These decisions will shape policy for the entire country and we might expect them to be decided on precedent and the policy preferences of the justices. However, our book, the Elevator Effect: Contact and Collegiality in the American Judiciary, provides evidence that the justices’ relationships also shape such opinions.
Deciding Together: Life Tenure and the Ties that Bind
Like most of us, the justices don’t work in solitude. They make decisions and write opinions based on interactions with clerks, attorneys, and, importantly, the other justices. Unlike many of us, however, federal law sets the number of their peers at nine, and they can anticipate working with each other over long lives.
Justices have publicly remarked on this unusual arrangement and internal dynamics within the Court. Public discourse and reporting often highlight aspects of justices’ relationships and speculate how those dynamics might shape the work of the Court. There is a natural curiosity about the dynamics between these powerful jurists and how they may matter to the law of the land. Furthermore, during a time when conversations regarding reforming aspects of the Supreme Court are common, it raises questions about how changes to the institution could affect these relationships and the work of the Court.
On the other hand, experts tend to think about how the law and politics influence the justices’ decisions while ignoring the interpersonal relationships between them (but see work by Epstein, Landes, and Posner).
The fact that there is little academic work, particularly quantitative work, addressing the influence of relationships among justices (and other judges) is unsurprising given the difficulties in studying it. While the Supreme Court holds public oral arguments and explains its decisions in published opinions, its inner workings and the relationships among the justices are far more opaque. The justices usually speak of positive relationships among themselves (with some notable exceptions), but it is hard to directly assess the strength of these bonds. This is problematic because there are personal and institutional incentives to portray their relationships positively.
Studying Contact and Collegiality in the Marble Palace
To tackle this problem, we used multiple approaches. We considered historical accounts indicating that relationships among the justices potentially shape opinions. Next, we spoke with former Supreme Court clerks regarding their impressions of collegiality on the Court, as well as Court of Appeals judges and former clerks who spoke to their related experiences. These interviews also indicated that collegiality may shape the Court’s work. Lastly, we conducted quantitative analyses regarding the extent to which these relationships have mattered regarding public disagreement.
The results of this quantitative analysis deserve special note.
Indicators of collegiality are more limited on the Supreme Court than the courts of appeals, where there is more variation in the level of contact between judges. For this reason, we also examined the amount of time that two justices served together on the Supreme Court as a measure of collegiality. We then considered how cotenure influenced the justices’ behavior in multiple arenas. Here, we focus on one important aspect — when justices publicly part with the justice writing in the majority opinion by authoring or joining a separate opinion.
We find that justices who have served together longer are less likely to publicly disagree with each other’s opinions in the form of dissents. For justices who serve the longest together (thirty years), a dissent is five percent less likely. Additionally, when ideologically opposed to the justice authoring the majority opinion, they are less likely to offer alternative reasoning (in the form of a concurrence) when they have served the author longer.
Broader Inquires and Implications
Beyond the justices and separate opinions, we also studied the role of collegiality in other contexts, separate opinions in the court of appeals, reversals of trial court decisions in the circuit courts, the language of dissent, and how interpersonal relationships influenced which prior decisions are referenced in opinions. We have a multitude of interesting findings, many of which point to how collegiality dampens the influence of ideology in federal appellate judicial decisionmaking.
Many policy and legal implications flow from these findings. For the Supreme Court and separate opinions, where the justices don’t serve together as long there are more likely to be fractured opinions. These splintered decisions likely result in less stability and consistency.
However, they also unearth important disagreements in opinions regarding the country’s top jurists. While our research can’t resolve if separate opinions should be avoided or championed, it does indicate that calls for reform to the size of the Supreme Court (at least for any initial appointments) and imposing term limits would likely increase the number of dissents and concurrences due to the justice having less contact with each other overall. This is just one implication of the fact that relationships among justices matter.
