Abstract
Part I retells the history of Supreme Court decisions—from the time when Justices followed the British practice of issuing seriatim opinions to the time of Chief Justice John Marshall who instituted a policy of a single opinion for the Court. This norm of consensus lasted 140 years, during which the Court decided more than ninety percent of its cases unanimously. However, modern practice has been marked by division and dissensus, which have incited rhetoric of delegitimization. Part II examines two types of consensuses. Section A discusses internal consensus, or the extent to which the Justices agree with each other. Yet accusations that the Supreme Court is politicized or illegitimate are often another way of saying that it has strayed too far from public opinion. In turn, Section B explores the effects of external consensus—that is, the extent to which the public agrees with the Supreme Court’s opinions. Part III analyzes the impact of internal and external consensus on perceptions of the Supreme Court, with a particular emphasis on the role of the Supreme Court as a judicial institution.
Recommended Citation
Abby Ulman,
A Crisis of Consensus: The Supreme Court’s Legitimacy and Recent Challenges Thereto,
100
Notre Dame L. Rev.
1393
(2025).
Available at:
https://scholarship.law.nd.edu/ndlr/vol100/iss3/10