External Constraints and Internal Norms on the U.S. Supreme Court

Abstract

Chapter 1 is an introduction. In Chapter 2, I examine the norm of consensus, the normative expectation that justices come to unanimous decisions without dissenting votes. Specifically, I tackle the tension between justices' pursuit of ideological objectives and institutional ones. In other words, I address the questions why the Court can come to consensus at all and why do individual justices join the majority coalition against their sincere policy preferences. Drawing from scholarship on the Court’s maintenance of its institutional legitimacy, I posit that external constraints on judicial legitimacy motivate the justices to abide by the norm of consensus -- even at the expense of their ideological goals. I find that, both at the Court level and individual justice levels, the norm of consensus exerts a stronger influence on judicial behaviors when public and congressional opposition increases and when case is politically salient. Chapter 3 looks at the norm of stare decisis and the influence of precedent on the Court's policy-making. I argue that citations of precedents signal that the opinions are deeply grounded in the law and not in justices' personal policy preferences. Justices expend more efforts to send such signals when they sense heightened external constraints on the integrity of the Court as an institution. Using citation data of the Court between the 1957 and 2005 terms, I find that precedents are more likely to be cited when public opinion or congressional opposition to the Court increases. Further, since not all precedents are created equal, the analysis suggests that legal relevance or authority of a precedent interact with external conditions facing the Court in determining which precedent is cited in the Court's majority opinion. Chapter 4 focuses on the norm of collegiality during the Court's oral arguments, the most open and transparent part of the U.S. Supreme Court decision-making process, which deservingly receive their fair share of attention from actors beyond the Court. News media, Court scholars, and legal professionals attempt to gain insights into the internal dynamics among the justices through their behavior during oral arguments. While extant literature focuses on predicting justices' merits votes based on their oral argument behavior, it is plausible that these actions are partly shaped by the justices' desire to maintain the legitimacy of the Court. Given the relatively high profile of oral arguments, justices should be aware of the external scrutiny they receive and the consequences of their behaviors beyond the law and policy entailed in the immediate case. To test my expectations, I analyzed the transcripts of Supreme Court oral arguments between 1957 and 2012 terms and show that public and elite constraints on judicial legitimacy affects justices' propensity to interrupt each other.