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Silent Acquiescence on the Supreme Court

The norm of silent acquiescence on the Supreme Court was thought to have been eviscerated in the twentieth century by certain institutional reforms and the rise of dissenting opinions. Given that silent acquiescence is difficult to observe, however, the extent to which this norm persists on the modern Court remains unclear. To overcome this observational difficulty, I analyze private memoranda exchanged by justices who served during the Burger Court. The empirical results suggest that silent acquiescence is a rare but regular occurrence on the modern Court, and is more likely to occur in comparatively unimportant cases. Notwithstanding institutional and personnel changes that limited silent acquiescence and precipitated an increase in dissenting opinions, it appears that the practice of go-along voting continued throughout the Burger Court. The results have implications for our understanding of separate opinion writing, judicial decision-making, and judicial legitimacy.