Discouraging Dissent

• Author: Matthew E. K. Hall,Jason Harold Windett
• DOI: 10.1177/1532673X16640743
• Published date: 01 July 2016
• Date: 01 July 2016
• publishedBy: Sage Publications, Inc.

American Politics Research

2016, Vol. 44(4) 682 –709

© The Author(s) 2016

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DOI: 10.1177/1532673X16640743

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Article

Discouraging Dissent:

The Chief Judge’s

Influence in State

Supreme Courts

Matthew E. K. Hall1 and Jason Harold Windett2

Abstract

Chief judges often strive to promote consensus in their courts to promote

public confidence, durable precedents, and intracourt collegiality; yet, some

chiefs succeed, whereas others fail. In this article, we identify institutional

factors that facilitate and hinder the chief’s ability to promote consensus

by examining dissent rates in every state court of last resort from 1995

to 2004. Consistent with prior work, we find that consensus is partially

driven by the chief judge’s formal powers and the institutional resources

available to court members. However, we also find that member resources

moderate the chief’s influence. The chief’s formal powers are associated

with lower dissent rates in courts that lack time, staff, docket control, and

insulation from the electorate. In contrast, judges who possess greater

resources are highly resistant to the chief’s influence. Our findings suggest

a fundamental dynamic of political leadership that may operate across

institutional contexts.

Keywords

state supreme courts, dissent, consensus, chief judge

1University of Notre Dame, IN, USA

2Saint Louis University, MO, USA

Corresponding Author:

Jason Harold Windett, Saint Louis University, 3750 Lindell Blvd, 127 McGannon Hall, Saint

Louis, MO 63108, USA.

Email: jwindett@slu.edu

640743APRXXX10.1177/1532673X16640743American Politics ResearchHall and Windett

research-article2016

Hall and Windett 683

In 2001, Maura Corrigan was selected to serve as Chief Justice of the

Michigan Supreme Court. At a press conference, Corrigan said the justices

needed a leader who would “build consensus” and promised to “bring the

fractured court together” (Durbin, 2001). But consensus proved elusive dur-

ing her tenure. Over the next 4 years, at least one judge dissented in more

than 60% of cases, making Michigan’s high court the least consensual in the

country. Why did Corrigan fail to discourage dissent among her colleagues?

Was her goal of building consensus simply unrealistic?

Whether realistic or not, her objective was not unusual. Institutional lead-

ers often strive to unite members behind common goals: Legislative leaders

try to enforce party discipline (Jenkins & Nokken, 2008), executives seek to

control bureaucrats (Ferguson & Bowling, 2008), and chief judges try to

“marshal” their courts (Murphy, 1964). Chief judges often value consensus

because it promotes collegiality (Seitz, 1991), insulates precedents (Spriggs

& Hansford, 2001), and enhances public confidence (Beveridge, 1919;

Murphy, 1964; Pritchett, 1954; Sheldon, 1999; cf. Gibson, Caldeira, &

Spence, 2005). In contrast, dissents impose costs on other judges who may

need to rebut the dissenter’s criticisms (Epstein, Landes, & Posner, 2013). In

short, “too much dissension weakens precedent, confuses the law, encourages

further appeals, and leads to dissatisfaction among the justices” (Sheldon,

1999, p. 115). Because chief judges are especially attuned to these institu-

tional concerns (Boyea & Farrar-Meyers, 2011; Langer, McMullen, Ray, &

Stratton, 2003), they usually strive to promote consensus among their col-

leagues (e.g., Brumback, 2013; Cross & Lindquist, 2006; Davis, 1999;

Stafford, 2014). But some chiefs succeed, whereas others fail.

Although chiefs usually value consensus, other judges often do not.

Consensus inherently stifles individual expression. As Justice Stevens argues,

“[t]here is a duty to explain your position if it isn’t the same as the majority .

. . and it’s just part of my thinking about what a judge should do” (Liptak,

2010a). Judges may also prefer to write dissents in the hopes that a future

court will adopt their views (Epstein et al., 2013). Finally, consensual opin-

ions often include more ambiguous language, as judges bargain over opinion

content and accommodate each others’ suggestions (Liptak, 2010b; Maltzman,

Spriggs, & Wahlbeck, 2000; Owens & Wedeking, 2011). Consequently, indi-

vidual judges often resist the chief’s attempts to build consensus.

In this study, we leverage the institutional variation across every state

supreme court over the course of a decade to identify factors that facilitate

and inhibit consensus among judges.1 Consistent with prior research, we find

that dissent rates are lower in courts in which the chief possesses more formal

powers (Brace & Hall, 1990; M. G. Hall & Brace, 1989) and the members

enjoy fewer institutional resources (staff, pay, docket control, time, and