Revisiting the Roosevelt Court: The Critical Juncture from Consensus to Dissensus

Scholars have long debated questions about the decline of consensual norms on the Supreme Court. It is widely understood that Chief Justice John Marshall is responsible for transforming the institution from one where Justices issued their opinions seriatim—or individually—to a collegial body with a single opinion of the Court. It is also plain that the modern Court is often divided with the Justices only issuing unanimous decisions in about one‐third of the cases. What remains unclear, however, is exactly when the norm of consensus ended and what caused its demise. We argue that the institutional transformation from consensus to dissensus was the result of a series of internal and external changes to the judicial decision‐making process during the Roosevelt Court—a period roughly from 1937 to 1947 that was dominated by Justices appointed by President Franklin D. Roosevelt. These developments—occur-ring both on the Court and in the broader political environment—fundamentally altered the dynamic among the Justices and forever changed the way they decided cases. The end result was the replacement of collective expression—once the long‐standing norm— with individual behavior. We highlight what political scientist Paul Pierson terms a " conjuncture " —a moment in time when " discrete elements or dimensions of politics " collide to produce a new, and often unintended, effect. Specifically, we identify a number of institutional developments that dramatically altered the extent to which consensus could be achieved in the Court's decision making. 1 We trace these trends by undertaking an extensive examination of the Roosevelt Court—the conjuncture, or moment in time, when its ability to achieve consensus changed. Our investigation is based primarily on the private papers of Justices William O. Douglas and Harlan Fiske Stone, including memos sent between the Justices, draft opinions, and other correspondence, which we use to determine the durable shifts in the Court's decision‐making processes during