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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

other judges.

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).

  • 69. Ostberg et al., “Acclimation Effects,” supra note 64 at 714.
  • 70. Nick Robinson, “Structure Matters: The Impact of Court Structure on the Indian and U.S. Supreme Courts” (2013) 61:1 American Journal of Comparative Law 173 at 186.
  • 71. Pamela C. Corley et al., “Extreme Dissensus: Explaining Plurality Decisions on the United States Supreme Court” (2010) 31:2 Justice Systems Journal 180 at 186-187 [Corley et al., “Extreme Dissensus”]; Maltzman & Wahlbeck, “Burger Court,” supra note 13 at 589.

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.[1] 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.[2] 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.[3] Both Dickson and Lamer wrote a significantly higher percentage of majority opinions after becoming chief justice, although McLachlin did not.[4] 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.[5] They argue that McLachlin is a “social leader,” whose primary goal is to increase collegiality and consensus on the court.[6]

Chief justices of the US Supreme Court also have different writing and dissenting patterns than other justices.[7] Chief justices are more likely to write majority opinions than other judges, particularly in important cases.[8] 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.[9] 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.[10] Of course, some of this effect may be due to how the chief justice chooses to assign opinion writing.[11]

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.[12] [13] After assuming leadership of the court, Subba

Rao participated in another 77 reported decisions and was in the majority every time.[14] 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.

  • 84. Gadbois, “Indian Judicial Behaviour,” supra note 83 at 166.
  • 85. George H. Gadbois, “Selection, Background Characteristics, and Voting Behaviour of Indian Supreme Court Judges, 1950-1969” in Glendon Schubert & David J. Danelski, eds, Comparative Judicial Behaviour: Cross-Cultural Studies of Decision-Making in the East and West (New York: Oxford University Press, 1969) at 240-241.
  • 86. Nick Robinson et al., “Interpreting the Constitution: Supreme Court Constitution Benches since Independence” (2011) 41 Economic & Political Weekly 27 at 31 [Robinson, “Interpreting the Constitution”].
  • 87. Robinson, “Interpreting the Constitution,” supra note 86 at 31.
  • 88. Chris Hanretty, “Lumpers and Splitters on the United Kingdom Supreme Court” (2013) American Political Science Association 2013 Annual Meeting Paper, 4 [Hanretty, “Lumpers and Splitters”] at 15, 19.

  • [1] We ran logit regressions for each country with the dependent variable being whether thejudge dissented and the independent variables being whether the judge was the chief justice,the ideology of the judge (either the party of the appointer or the lifetime liberal voting ratein criminal cases), the direction (liberal or conservative) of the lower court decisions, the areaof law, and a time trend. None of the chief justice coefficients were statistically significant forCanada, Australia, or the UK.
  • [2] The only significant coefficient was on the chief justice variable in the United States whenwe used party of the appointing president for the judges’ ideology. The effect was significantat the .05 level and, as predicted, negative (-5.7%). However, the coefficient was not statistically significant when we used lifetime liberal voting records in criminal cases as a proxy forideology.
  • [3] Matthew Wetstein & C.L. Ostberg, “Strategic Leadership and Political Change on theCanadian Supreme Court: Analyzing the Transition to Chief Justice” (2005) 38:3 CanadianJournal of Political Science 38 653 [Wetstein & Ostberg, “Strategic Leadership”]).
  • [4] Wetstein & Ostberg, “Strategic Leadership,” supra note 74 at 664-665, n. 97.
  • [5] Wetstein & Ostberg, “Strategic Leadership”, supra note 74 at 671, n. 3.
  • [6] Wetstein & Ostberg, “Strategic Leadership”, supra note 74, n. 97 (applying models of judicial leadership from David J. Danelski, “The Influence of the Chief Justice in the DecisionalProcess of the Supreme Court” in Sheldon Goldman & Austin Sarat, eds, American CourtSystems: Readings in Judicial Process and Behavior (San Francisco: W.H. Freeman, 1978) 506.
  • [7] Recall that the practice of assigning opinions varies across countries. In the United States,the justices vote in the conference following the hearing and then the practice is that the mostsenior justice in the majority (or the chief justice if that person is in the majority) assigns theopinion writing, including possibly to him- or herself. In Canada, the chief justice assigns theopinion writing, although the practice is collegial, as it was at the House of Lords. In India,the most senior judge on the panel decides who writes the opinion.
  • [8] Saul Brenner & Eric S. Heberlig, “‘In My Opinion ...’: Justices’ Opinion Writing in theU.S. Supreme Court, 1946-1997” (2002) 83:3 Social Science Quarterly 762 at 769-770; ElliotE. Slotnick, “The Chief Justices and Self-Assignment of Majority Opinions: A Research Note”(1979) 31:2 Political Research Quarterly 219 at 220.
  • [9] Maltzman et al., “Politics of Dissent”, supra note 56 at 503, 506.
  • [10] Brenner & Hagle, “Opinion Writing,” supra note 56. A similar study by Corley et al. on the USSupreme Court between 1953 and 2006 found that the chief justice was, on average, twice as likelyto join a plurality opinion and significantly less likely to write or join a special concurrence: Corleyet al., “Extreme Dissensus,” supra note 71 at 188, 391-407, n. 34; see also Melinda Gann Hall &Paul Brace, “Order in the Courts: A Neo-institutional Approach to Judicial Consensus” (1989)42 Western Political Quarterly 391 at 403 (reports a 22 percent higher dissent rate on courts thatrandomly assign opinions than those where the chief justice assigns the opinion).
  • [11] Corley et al., “Extreme Dissensus,” supra note 71 at 195, n. 34.
  • [12] George H. Gadbois, Jr., “Indian Judicial Behaviour” (1970) 5:3 Economic and Political
  • [13] Weekly 149 at 151-153 [Gadbois, “Indian Judicial Behaviour”].
  • [14] 2 Arvind & Stirton, supra note 17 at 41, n. 17.
 
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