Are Even Unanimous Decisions in the United States Supreme Court Ideological?
Published in 2012. In the Northwestern University Law Review 106: 699-713
(Prepared for Northwestern University's symposium on the Legacy of Justice Stevens)
Lee Epstein
William M. Landes
Richard A. Posner
Abstract
The fact that a substantial percentage of Supreme Court decisions are unanimous is often used to undermine the theory that the Court's decisions are ideologically driven. We argue that if the ideological stakes in a case are small, even slight dissent aversion is likely to produce a unanimous decision. The data support this interpretation but also establish the existence of an ideological effect in unanimous decisions. These findings are consistent with a realistic conception of the Court as a mixed ideological–legalistic judicial institution.