The norm of consensus on the US Supreme Court

For four decades scholars have sought to explain the rise of dissensus on t he U.S. Supreme Court. While the specific explanations they offer vary, vir tually all rest on a common story: during the nineteenth (and into the twen tieth) century, the Supreme Court followed a norm of consensus. That is, th e justices may have privately disagreed over the outcomes of cases but mask ed their disagreement from the public by producing consensual opinions. The problem with this story is that its underlying assumption lacks an empiric al basis. Simply put, there is no systematic evidence to show that a norm o f consensus ever existed on the Court. We attempt to provide such evidence by turning to the docket books of Chief Justice Waite (1874-1888) and making the following argument: if a norm of consensus induced unanimity on Courts of by-gone eras, then the norm may ha ve manifested itself through public unanimity in the face of private confer ence disagreements. Our investigation, which provides systematic support fo r this argument and thus for the existence of a norm of consensus, raises i mportant questions about publicly unified decision-making bodies, be they c ourts or other political organizations.