In this first systematic and extensive application of cross-judicial methodology, we examine the members of the Rehnquist Court (1986–94 terms) with prior appellate court experience to discern any correlation with their Supreme Court behavior in terms of nonconsensual opinion writing and voting. We find that they become less consensual as justices than they were as judges in the lower court. Importantly, this finding holds after controlling for such institutional differences between the two court levels as size, ideology, case types, stare decisis, and norms. Consistent with the neoinstitutional perspective, we surmise that this behavior change is due to the modern Supreme Court being unique, a court on which the members feel it is desirable, necessary, and possible to express policy disagreements with the majority via separate opinions and votes.
There has been a flood of scholarship over the years on whether there is a “right to privacy” in the Constitution of the United States. Griswold v. Connecticut (1965) was, of course, the Supreme Court decision that opened the floodgates to this river of commentary. A subject search for “privacy, right of” in the College of William and Mary's on-line library catalog located 360 book titles. A perusal of the leading law review bibliographic indices turned up still more. Whether the Constitution contains some sort of “right to be let alone” is plainly one of the central questions of contemporary constitutional discourse.
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