Supreme Court decisions without majority opinions

Not all judgments of the United States Supreme Court are supported by majority opinions. That is, the Court cannot always reach a decision on the merits of a case and also produce one opinion joined into by a majority of the justices participating. As many Americans may not realize this, it is worth asking why this happens, what the results are, and how individual justices today regard the phenomenon, or more importantly, how they act in the face of it. What insights might be gained about typical decisionmaking processes through such an inquiry?

In theory, there are rational grounds for justices to use separate opinions, voting blocs, and other tactics that may lead to Court frag mentation. A reason perhaps more compelling than others is that judi cial politics below the Supreme Court level is often governed by neces sity and individual preferences of public policy, rather than by precise legal principles. Can the members of a body that formulates policy for all of American society, even the nation's leading jurists, be expected to be governed much differently in their actions? Might they even engage in one-upmanship, sensing that how each of them performs in the most difficult cases can affect the real influence upon American life each attains over the long haul? This study asserts that, theoretical ly, each justice might try to increase his or her relative influence by appealing to the discretionary tendencies of the lower courts and that, in actuality, whatever their true intentions, some justices succeed.

Procedure--Certain strategies may optimize conditions for the inclusion of a given justice's ideas in principles (here termed "least common denominators") deemed legally controlling by the lower courts. Using a computerized legal research system, the numbers of affirmative citations to the opinions in which each justice participated are compared, the data being arranged in two different ways for slightly different rankings; a justice's position in these rankings is termed "prime factor status." The focus is upon decisions without Court opinions of the Burger Court after 1975, and citations by district and appellate courts under the umbrella of the Federal Sixth Circuit (a "typical" jurisdiction). The findings are weighed against norms of majority opinionmaking, and inferences made.

Findings--Marshall and Brennan rank second and third, respectively, in each tabulation, while White and Stevens top each ranking respectively. Burger, Rehnquist, and O'Connor (in that order) lag behind Blackmun, Powell, and (in one ranking) Stewart. Conclusions--Brennan and Marshall, with Stevens as their strongest ally, may exercise greater bloc cohesion, and more sophistication in writing separate opinions, than other justices in these divisive cases. It is "in character" to develop a propensity to be cited whenever possi ble, thereby exerting long-term policy influence, because "the other side" so often gains the majority this duo would naturally wish to win over.