Home Economics Commitment and cooperation on high courts : a cross-country examination of institutional constraints on judges
The Chief Justice
The chief justice may be more likely to be part of the majority in a given decision. Like other high court judges, chief justices may aim to produce particular outcomes that align with their preferences. She may be better able to persuade others to agree with her preferred outcome due to the informal influence of her position (such as her ability in some cases to decide who hears interesting cases or writes particular opinions). As we saw in the last chapter, she may also select panels to ensure she sits with a winning coalition of like-minded judges. Alternatively, a chief justice may be more inclined to compromise her own position to promote consensus because she places a higher value on collegial norms than other judges, believing that dissenting will undermine her leadership or the court’s institutional legitimacy.71 These differing goals lead to the following hypotheses:
H2: The Chief Justice is more likely to write or join majority opinions than
cases as the measure of ideology (and ran the regressions on non-criminal cases) and the freshman coefficient was negative and significant at the .05 level but smaller (about 2 percent).
We found no evidence of the chief justices dissenting at a greater rate in most of the countries studied in our data over the period 1970 to the early 2000s— that is, whether or not the judge voting was the chief justice did not impact the probability that the judge would dissent. The only exception was the united States where there was some limited evidence that chief justices had dissented at a lower rate than other justices. However, more detailed studies have found that chief justices act differently from other judges. For example, Wetstein and Ostberg examined the behavior of the three most recent chief justices of the Supreme Court of Canada, and found that their opinion writing and voting strategies changed significantly after assuming leadership of the court. Both Dickson and Lamer wrote a significantly higher percentage of majority opinions after becoming chief justice, although McLachlin did not. Wetstein and Ostberg claim that increased authorship of majority opinions is an indicator of “task leadership,” or influence over the court’s output. Conversely, McLachlin reduced her dissent activity to a much greater extent than either of her predecessors. Moreover, her dissent authorship rate dropped from 9.9 percent to approximately 2.8 percent. They argue that McLachlin is a “social leader,” whose primary goal is to increase collegiality and consensus on the court.
Chief justices of the US Supreme Court also have different writing and dissenting patterns than other justices. Chief justices are more likely to write majority opinions than other judges, particularly in important cases. Moreover, chief justices were less likely to dissent than other justices. For example, Chief Justice Burger’s dissent rate between 1969 and 1985 was 9.5 percent, while the other justices dissented 15.4 percent of the time. Although the judges were similarly willing to write or join a “regular concurrence” that agreed with the majority’s disposition and reasons, Burger was significantly less likely to write a “special concurrence” that criticized the majority reasoning. If we look at the Vinson, Warren, Burger, and Rehnquist courts, chief justices authored a similar number of majority opinions per term as associate justices, yet wrote fewer opinions overall. Associate justices wrote approximately 2.4 times more concurrences and 2.5 times more dissents than the chief justices during this period, with 23 percent being dissents for chief justices and 37 percent for associate justices. Of course, some of this effect may be due to how the chief justice chooses to assign opinion writing.
The chief justice of the Indian Supreme Court also appears more likely to be part of the majority coalition. For example, on the Supreme Court between 1950 and 1967, Subba Rao was the most frequent dissenter prior to his appointment as chief justice, joining the minority in 48 of the 702 hearings he participated in and writing a total of 42 solo dissents.  After assuming leadership of the court, Subba
Rao participated in another 77 reported decisions and was in the majority every time. Between 1950 and 1959, chief justices dissented at a rate far lower than the Court’s average, with the five chief justices in office during this period only dissenting in 8 percent of the non-unanimous decisions in which they participated while 26 percent of the votes in non-unanimous cases were dissents.85 Although the dissent rate more recently is extremely low, one place to look for differences in dissents is constitutional cases, which may be heard in larger panels. In these cases, the chief justices dissented in only 0.8 percent of cases, compared to a dissent rate overall in these cases of 5.2 percent.86 However, more recently, chief justices have begun to dissent at a similar rate to other Supreme Court judges: whereas the chief justice was 27 times less likely to dissent during the 1960s, he was only four times less likely to dissent during the 2000s.87
Similarly, Hanretty’s analysis of the UK Supreme Court found that agreement between pairs of judges was more likely when one member of the dyad was president or deputy president of the Court.88 He notes that this trend may suggest either that leaders of the court are more likely to agree with their colleagues, or that they are better at persuading others to support their own opinions. A similar analysis by Arvind and Stirton suggests that senior law lords were most willing to adopt a wide range of acceptable outcomes in order to promote group consensus.
Chief justices may then be less willing to dissent than other judges on the court. They may be able to use their influence to encourage other judges to join them, or may be less willing to foster dissension on the court, which may reduce its legitimacy. However, as with the other issues in this chapter, causation is difficult to tease out. At least outside the united States, the chief justice may be in the majority not because of how she votes but because she establishes which judges hear particular cases.
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