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The Illusion of Judicial Consensus: Zoning Decisions in the Maryland Court of Appeals

Published online by Cambridge University Press:  02 September 2013

Robert J. Sickels
Robert J. Sickels
Affiliation:
United States Civil Service Commission
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Extract

In some American courts of last resort, dissent is free and frequent; in others the judges vote unanimously for months, even for years at a time—a difference in judicial behavior which tempts inquiry and speculation. Although social scientists generally focus on dissenting courts and feed the human and scientific appetite for open controversy, the operation of every type of court is clarified by an examination of the ways and pitfalls of ostensible consensus among the judges. The purpose of this study of one supreme court and one body of law—zoning law in the Maryland Court of Appeals—is to demonstrate that under certain conditions unanimity in voting is illusory.

Type
Research Notes
Information
American Political Science Review , Volume 59 , Issue 1 , March 1965 , pp. 100 - 104
Copyright
Copyright © American Political Science Association 1965

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References

1 Schubert, Glendon, “The Michigan Supreme Court,” in Quantitative Analysis of Judicial Behavior (New York, 1959), pp. 129–142Google Scholar; and Ulmer, S. Sidney, “Leadership in the Michigan Supreme Court,” in Schubert, Glendon, ed., Judicial Decision-Making (New York, 1963), pp. 13–28Google Scholar.

2 At the .01 level, 10.6 ± 2.6 per cent.

3 Schubert, , Quantitative Analysis, p. 134Google Scholar, contrasts rates of dissent in 1956–57: .79 in the United States Supreme Court and .16 in the Wisconsin Supreme Court. Whatever the dissimilarities then and now, these two courts may be said to share a penchant for lively dissent, never a characteristic of the Maryland Court of Appeals.

4 It was ostensibly against such a possibility, threatened by Franklin Roosevelt's court reorganization plan, that Chief Justice Hughes argued in a letter to Congress in March, 1937, “The Constitution does not appear to authorize two or more Supreme Courts or two or more parts of a supreme court functioning in effect as separate courts.” U. S. Senate, Reorganization of the Federal Judiciary, 75th Cong., 1st sess. (1937)Google Scholar, S. Rept. 711, p. 40. The real disagreement was over the Court's policy, of course, not its procedure.

5 Laws of Maryland, 1960, Ch. 11, ratified the same year.

6 See, for example, the citations in Rathkopf, Arden H., The Law of Zoning and Planning, 3d ed. (New York: Clark Boardman Co., 1962), vol. 1, sec. 27, p. 15Google Scholar.

7 To April, 1964. Tables of cases are available from the author.

8 Significant at the .01 level.

9 Significant at the .05 level.

10 Maryland State Bar Association, “Report of Committee to Study the Case Load of the Court of Appeals,” Transactions (Baltimore: Maryland State Bar Association, 1958), p. 307Google Scholar.

11 Ibid.

12 Ibid.

13 Holmes, dissenting in Lochner v. New York, 198 U. S. 45 at 76 (1905).

14 Holmes, , “The Path of the Law,” Harvard Law Review, Vol. 10 (1897), p. 461Google Scholar, reprinted in his Collected Legal Papers.

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