On the Role of Ideological Homogeneity in Generating Consequential Constitutional Decisions

Published in 2008. In the University of Pennsylvania Journal of Constitutional Law 10: 361-386.

(Revised version of a paper presented at the Journal of Constitutional Law's Symposium on Positive Approaches to Constitutional Law and Theory, Philadelphia, PA, 2.24.07.)

Nancy Staudt
Barry Friedman
Lee Epstein

Assuming that Supreme Court justices in the majority can transform any constitutional dispute into a ruling with major (or minor) legal implications, what explains their choice? Several possibilities present themselves. But here we focus chiefly on the effect of ideological diversity on the nature of the decision the Justices render, and argue that the more homogeneous the majority, the higher the likelihood of a consequential decision. An analysis of Supreme Court decisions addressing state or federal constitutional matters (1953-2005 terms) lends support to our claim: Regardless of the size of the majority, a strong and positive association exists between ideological homogeneity and the production of a noteworthy decision.

Click here for the article (.pdf)
Click here for the data (Stata .dta file) (posted on 3.8.07)
Click here for the website of related article, On the Capacity of the Roberts Court to Generate Consequential Precedent