The Puzzle of Unanimity

Concurring and Dissenting without Opinion

“…First, the norm of having the senior Justice in the minority coalition assign the dissenting opinion was institutionalized during the Burger Court. 117 Prior to this innovation, there were sporadic attempts at coordination among members of a minority coalition but no accepted norm that a particular Justice would or should bear the burden of ensuring that a minority position be explained in writing. 118 By reducing coordination costs, this institutional change has been said to be associated with "[t]he abrupt end of the practice of notation (dissenting without opinion) at the beginning of the Burger Court."…”

“…made each justice publicly responsible for his or her votes." 120 As a result, this institutional change might have "led to the death of acquiescence and notation" 121 to the extent that prominent focus was placed on each Justice's behavior in any given case.…”