Vol. 30 No. 10 (November 2020) pp. 158 -160INCONSISTENCY AND INDECISION IN THE UNITED STATES SUPREME COURT, by Matthew P. Hitt. Ann Arbor: University of Michigan, 2019. 234pp. Hardback $75.00. ISBN: 9780472131365.
Reviewed by Ali Masood, Department of Political Science, Rhodes College. Email: masooda@rhodes.edu.
Legal doctrine is at times inconsistent and unclear. While the norm of consensus and collegiality has been well documented within the U.S. Supreme Court, for a variety of reasons, Supreme Court justices disagree on case outcomes for a variety of reasons. Supreme Court decisions that are divided along ideological lines and split decisions that are counter-attitudinal in nature have received significant scholarly attention within the study of law and courts. What is less known is why the Supreme Court issues unreasoned judgements – those without precedent that are difficult for the lower courts to follow and apply consistently. Matthew P. Hitt’s INCONSISTENCY AND INDECISION IN THE UNITED STATES SUPREME COURT is an ambitious and first book-length analyses that provides an in-depth account of unreasoned judgments by the U.S. Supreme Court. This new and important work is a welcome contribution to the Supreme Court and judicial decision-making literature. The scope of Hitt’s book is novel, the writing style is engaging, and the analysis is both thorough and interesting.
The book is divided into two parts. The first part of the book provides a detailed account of doctrinal paradoxes, discursive dilemmas, and unreasoned judgements. It also provides new insights on recent Supreme Court trends and the frequency with which the justices collectively issue unreasoned judgements. The second half of the book is an empirical exploration of the impact of the Court’s unreasoned judgements to distinct audiences. Hitt begins by assessing attentiveness to unreasoned judgements within the lower federal courts. Next, Hitt examines how the United States Congress might respond to an inconsistent Court through Court curbing legislation. Finally, Hitt gauges the impact of unreasoned judgements on diffuse support for the Supreme Court.
In Chapter 1, the book conceptualizes unreasoned judgements as a phenomenon that occurs when “the judgement of the court is issued without accompanying reasoning that is itself supported by a majority of the justices’’ (p. 3). In other words, a judgement without a reason is where a majority of justices support an outcome, but there is not enough support behind a legal rationale and therefore no precedent is established. The consequence of such an unreasoned judgement is that while the controversy at hand is resolved for a given case, the outcome is almost always isolated from future controversies even within the same issue area. Since there is no precedent, subsequent references to an unreasoned judgment in future cases by the Supreme Court itself or the lower courts are expected to be minimal.
In Chapters 2, 3, and 4, Hitt reinforces the claim that Supreme Court justices issue unreasoned judgements infrequently and reluctantly. The argument provided is that justices prefer to avoid unreasoned judgements when possible, but under certain conditions they become unavoidable. The contention made throughout the book is that unreasoned judgements emerge for a variety of reasons, which include: [*159] (1) dealing with a case that is broad national importance; (2) the justices’ strong desire for reversal or affirmation but for different reasons; (3) when there is majority support for an outcome but no single rationale has an outright majority; and (4) when broader doctrinal concerns about the future applicability of the case to other controversies is more pressing to the justices than a clear and consistent outcome. The findings show that unreasoned judgments within per curiam opinions of the Supreme Court are on a downward trajectory. Hitt also presents a breakdown of unreasoned judgements by issue area and case salience. Additionally, there is information on the likelihood of unreasoned judgements when there is a disordered ideological coalition and when circuit conflict is present. In short, unreasoned judgements are positively associated with a disordered coalition but there is a negative relationship in resolving circuit conflict. There also appears to be no meaningful difference between reasoned and unreasoned judgements for salient and non-salient decisions. This information is new and provides the reader with a much better sense how and when unreasoned judgements are deployed by the Court.
It is within these chapters (2-4) the author presents the plan to operationalize unreasoned judgments for the empirical analyses. Hitt states that “[i]n the analysis that follow, I consider only opinions per curiam issues after oral argument and accompanied by at least one separate opinion as unreasoned judgements” (p. 32). The argument is that for there to be evidence of controversy or disagreement in the logic, an opinion must be accompanied by separate concurring or dissenting opinions. While this appears to be a measured approach that is generally understandable, a more critical view of this operationalization lies in the implicit assumption that the justices deliberately highlight unreasoned judgements through separate opinions. The justices’ themselves on multiple occasions have articulated that in contemporary times they rarely bother with separate opinions for non-argued per curiam decisions, which constitute the bulk of the Court’s unreasoned judgements. One example is in LAWRENCE V. CHAPTER (1996) where the Court reiterates that separate opinions are no longer customary. The implication is that usually when the justices disagree in the logic or outcome for such per curiams, they do not voice their disagreement. In the rare instances there is a separate opinion associated with per curiam decisions, it is because one or more justices felt more disagreement than what is customary. What this means is that what appears to be a downward trend in the frequency of unreasoned judgements may in part be due to the fact that the Supreme Court has adjusted its norm to not issuing separate opinions with these decisions and measurement strategy of identifying an unreasoned judgement as one with at least one separate opinion is what may in part be driving the results.
Chapters 5, 6, and 7 are extremely interesting. The idea of exploring the impact of the Supreme Court’s unreasoned judgements on multiple audiences is creative and thoroughly informative. Chapter 5 is perhaps the strongest section in the book. Within this chapter, Hitt identifies a strategy to compare the impact of reasoned and unreasoned judgments within the district and circuit courts. The author finds that unreasoned judgments receive little deference and fewer citations within the lower courts compared to the Court’s more traditional reasoned judgements. This finding is new to the literature. While empirically sound, I would have liked to have seen more theoretical engagement with why one would expect the impact of unreasoned judgments to be more, less, or equivalent to the Court’s reasoned [*160] judgments. In Chapter 6, Hitt explores whether Congress responds to unreasoned decisions differently through Court curbing legislation. In short, there is no evidence to support that Congress feels the need to respond to unreasoned judgments in any way. I was left wondering why would Congress ever consider action in response to unreasoned decisions when their lack of clarity makes them hard to follow and implement. One could argue that unclear and inconsistent legal doctrine provides more leeway to the elected branches. In Chapter 7, Hitt designs a unique experiment to measure whether the public perceives the Court differently when presented with reasoned and unreasoned judgements. The author finds that unreasoned or inconsistent opinions do not reduce diffuse support for the Court. I found this chapter to be clever and interesting. My only critique is on the theoretical side, which is why the public would be expected to perceive the Court differently based on whether a decision is reasoned or unreasoned. Can the public successfully distinguish between the two? Overall, the empirical chapters are well done and informative. Taken together, one may still wonder why unreasoned judgments matter? Unreasoned judgments constitute a small portion of the Supreme Court’s overall docket, are decreasing over time, are not often followed by the lower courts, do not elicit responses from Congress, and do not appear to increase or diminish diffuse support for the Court. With this in mind, I wondered why they are critical to understanding the behavior of the justices. I think this case could have been made more persuasively. This unresolved question also provides a clear pathway for future research to build on this work.
INCONSISTENCY AND INDECISION IN THE UNITED STATES SUPREME COURT is an important addition to the Supreme Court and judicial politics literature. This book will appeal to multiple audiences including undergraduate and graduate students, law school students and professors, and of course scholars of the American judiciary. Beyond academics, the book will also be of interest to lay individuals broadly interested in the Supreme Court and how it functions. There is something in here for everyone from descriptive analyses, to qualitative discussion of Supreme Court cases, and sophisticated empirical analyses that includes time series and experimental manipulation. This book engages a complex subject that is presented in a way that is easy to understand. More generally, Hitt’s work is an excellent model to emulate for extensive, book-length analyses. I enthusiastically recommend including this book on syllabi for American and Judicial Politics courses.
CASES:
LAWRENCE ON BEHALF OF LAWRENCE V. CHAPTER, 516 U.S. 163 (1996).
© Copyright 2020 by the author, Ali Masood.
