Consensus Building on the Court?

Consensus building is an ideal way for groups to reach well-reasoned decisions that hold up over time. No wonder, then, that consensus building is a common goal of the U.S. Supreme Court.

By PON Staff — on November 1st, 2021 / Dealmaking

When making decisions, groups often hold a simple vote and allow the majority to get its way. But groups that instead work to reach decisions through consensus building tend to reach agreements that are more stable, more efficient, and wiser than groups that make decisions through majority rule, write Lawrence E. Susskind and Jeffrey L. Cruikshank in their book, Breaking Robert’s Rules: The New Way to Run Your Meeting, Build Consensus, and Get Results.

Consensus building involves striving for solidarity and agreement to get the most group members possible to buy into a shared decision. As compared to groups that follow a “winner take all” approach to decision making, groups that take a consensus-building approach craft agreements that include more diverse perspectives and thus hold up better over time. That may be why consensus building has been a frequent goal of the U.S. Supreme Court—and likely will continue to be, even with the court’s conservative majority.

A Penchant for Agreement

In recent decades, many of the Supreme Court’s close 5-to-4 decisions—including the landmark 2015 ruling that recognized same-sex marriage, a decision in June 2018 that upheld President Donald Trump’s “travel ban” on visitors from seven mostly Muslim-majority nations, and a 2021 refusal to freeze a Texas law that bars abortions after six weeks—have attracted the most attention and led to the widespread belief that the court is as polarized as the rest of the country.

Yet, according to the Supreme Court Database, the justices have been far more likely to agree than to disagree in recent years, write legal experts Sarah Turberville and Anthony Marcum in a 2018 Washington Post op-ed. Between 2000 and 2018, unanimous decisions were the Court’s most common, at 36%, while overwhelming majorities—7-to-2 or 8-to-1—made up about 15% of decisions. By comparison, only about 19% of cases were decided by 5-to-4 votes.

Highlighting the role of leadership in negotiation, that’s in large part because Chief Justice John Roberts sees great value in consensus building. Unified opinions give lower courts greater clarity on matters of law and less room for interpretation. And when the court manages to reach unanimous or near-unanimous decisions through consensus building, it gives the impression that it is an institution where issues are “honestly considered, strongly deliberated, and fairly decided,” according to Turberville and Marcum.

Will Consensus Building Prevail?

After Justice Amy Coney Barrett was confirmed to replace the late Justice Ruth Bader Ginsberg in October 2020, conservatives gained a 6-3 majority on the court. Predictably, the 2020-2021 term was the court’s most conservative since 2008: 60% of its decisions leaned conservative, according to FiveThirtyEight. Yet this leaves the justices with new motivations to pursue consensus building.

First, because they do not vote in lockstep, the six conservative justices will find that they often need to negotiate with one another to reach consensus. Their differences will require internal discussion, negotiation, and compromise.

Second, the three liberal justices will need to compromise more often with the majority to achieve some sort of consensus. In other words, “what looks like consensus among the justices may be the liberal justices moderating their stances in the hopes of keeping the conservative justices from going too far,” write Amelia Thomson-DeVeaux and Laura Bronner for FiveThirtyEight.

The Benefits of Consensus Building

In their book, Breaking Robert’s Rules, Susskind and Cruikshank outline essential steps for effective consensus building in the context of group negotiation. Here are three of their consensus-building techniques:

Engage in group problem-solving. In a consensus building approach, the group as a whole should focus on generating “packages, proposals, and ideas that can help all the parties do better than they would in the absence of an agreement,” write Susskind and Cruikshank. The group, perhaps with the help of a trained facilitator, should aim to craft a package that meets everyone’s needs before seeking firm commitments from all the members.
Reach agreement. Next, participants should discuss whether they accept the draft agreement on the table. If some participants don’t, those members are expected to further clarify their interests and propose improvements to the deal. The goal is to maintain effective communication and build strong relationships. This process continues until the group has achieved overwhelming consensus.
Hold people to their commitments. Because surprises are inevitable, implementation is often the hardest step in the consensus building process. Changes to the political or economic context, new laws, new group members, and unforeseen events can lead participants to question whether they can stand by their commitments. Negotiators might prepare for such surprises by including contingencies in their deal—clauses that stipulate what they’ll do if various events play out. They should also commit to revising the agreement when circumstances change.

What have your experiences with consensus building been like? Would you recommend it as a decision-making tool? If so, why? If not, why not?

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Consensus Building on the Court?