Document Type

Article

Publication Title

North Carolina Law Review

Abstract

Will the Roberts Court produce decisions of consequence in the foreseeable future? Or will its contributions be more modest? We address these questions not by reviewing the doctrine developed by the Court but rather by considering its capacity to generate important precedents. That consideration centers on an account we have previously called "ideological diversity." To state it simply, the idea is that the greater the ideological homogeneity of the majority coalition, the higher the likelihood that it will produce a consequential, perhaps landmark, decision. As such, the account stands in marked contrast to more common approaches in the legal academy that see the nature of judicial rulings as a choice the Justices consciously make regarding whether to be "minimal" or not. To us, most Justices-including most on the Roberts Court-seek to generate decisions that advance their preferred view of the law. But their ability to do so is structured in no small part by the preferences of their colleagues in the majority coalition. In what follows, we explain our account and then move to several empirical tests of it. Finding that data drawn from the 1953 through 2004 Terms support the idea that ideologically close majorities are more able to produce consequential decisions, we turn to the Roberts Court. In a nutshell, our analysis suggests that when five of its members coalesce-as they are prone to do-the Roberts Court bears the hallmarks of an institution capable of producing dramatic decisions. On the other hand, unanimous decisions-also hardly rare events on this Court-are far less likely to generate consequential precedent.

First Page

1299

Volume

86

Publication Date

2008

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