Chief Justices, Consensus, and Policy Cohesion: Examining How Chief Justices Marshal Their Courts

ABSTRACT Objective The literature is replete with explorations of the Supreme Court's apparent abandonment of consensual behavior with respect to issuance of concurring and dissenting opinions. However, few studies examine whether the demise of this behavioral norm correlates with a decline in the justices’ unifying around a common policy pronouncement. This is a key concept, as consensus includes the justices’ writing separate opinions as well as the extent to which they issue decisions that encompass policy cohesion. Further, it is unclear whether chief justices have the capacity to marshal their courts around these divergent indices of consensus. Methods We seek to fill these voids by assessing the ability of several recent chief justices (Fred Vinson, Earl Warren, Warren Burger, William Rehnquist, and John Roberts) to forge consensus, including policy cohesion, encompassing more than 70 years of Supreme Court history. We examine several key indicators of consensus to determine if these chief justices were able to lead the court to express greater legal clarity during those momentous times. Results Our findings demonstrate differential proficiencies of chief justices to shape institutional policy cohesion on their courts. Additionally, we find that dissensus is often relatively higher during the entire tenures of the chiefs than those observed during the first decade of service of each chief justice alone. Although some chief justices contributed to the decline of legal certainty, others were able to forge greater consensus among the justices. Conclusions The chief justice occupies a key position on the court that can be used to move the court to speak with a more unified voice, not only in terms of opinion‐writing but also with respect to the court's policy pronouncements. That power is particularly salient when the court faces external pressures during key moments of American political history.