Building Consensus, One Justice at a Time

Contrary to public perceptions, the supreme court generally aims to build consensus, analysis of its decisions shows. Business negotiators would be wise to adopt the same goal in their own group talks.

By on / Dealmaking

When U.S. Supreme Court Justice Anthony Kennedy announced on June 27 that he would retire at the end of July, many conservatives were jubilant, while many on the political left were devastated. These opposite reactions grew out of shared beliefs: that President Donald Trump will nominate a right-leaning judge to replace Kennedy, the frequent swing vote in the court’s 5-to-4 decisions, and that this new justice will usher in more conservative rulings on issues ranging from affirmative action to abortion to the power of labor unions.

On July 9, Trump did nominate a judge with solid conservative credentials, Brett Kavanaugh. Analysis of the Supreme Court’s recent decisions, however, suggests both Republican hopes and Democratic fears of how far to the right the Court will lean in the future could be too high—and sheds light on how the justices are pursuing the fine art of consensus building.

A penchant for agreement

In recent decades, the Supreme Court’s 5-to-4 decisions, including the landmark 2015 ruling that recognized same-sex marriage and a decision this June that upholds Trump’s travel ban on visitors from seven nations, most of them Muslim-majority, have attracted the most controversy from both ends of the political spectrum.

Yet according to the Supreme Court Database, the nine justices are far more likely to agree than they are to disagree, write legal experts Sarah Turberville and Anthony Marcum in a recent Washington Post op-ed. In fact, since 2000, unanimous decisions have been 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.

Moreover, unlike the U.S. public as a whole, the Supreme Court is not becoming more divided over time. In fact, the Court’s 2016–2017 term was the least partisan since the middle of the 20th century, Max Bloom wrote in the National Review last year. The fact that the Court had only eight justices for much of that term (due to the Senate’s refusal to consider then-President Obama’s nominee to fill the Antonin Scalia vacancy) likely contributed to this relative harmony of opinion: “The justices had to work to avoid tie votes,” writes Bloom. But for many decades, close rulings have hovered around just 20%.

It is true that cases involving hot-button social issues such as gay rights and abortion lately have tended to result in more narrowly divided votes of 5-to- 4 or 6-to-3. But even highly charged political cases often have been decided unanimously or with only one or two dissenters. There also have been times when more conservative justices have sided with their more liberal colleagues and vice versa.

A commitment to consensus

There is evidence that the current court makes consensus a primary goal. Turberville and Marcum note that during his 2005 confirmation hearing, Chief Justice John Roberts said he would have “a particular obligation to try to achieve consensus” with his colleagues. He has expressed a similar commitment to consensus in other statements throughout his tenure. In 2016, for example, he spoke of the Court’s “commitment . . . to talking about things, talking them out,” which he believes “sometimes brings you a bit closer together.”

There are compelling reasons for the Supreme Court to strive for consensus. Unified opinions give lower courts greater clarity on matters of law and less room for interpretation. Consensus at the top also “builds institutional trust,” according to Turberville and Marcum, by showing that “the issue at hand was honestly considered, strongly deliberated, and fairly decided.” As compared to legislative and executive branches of the U.S. government, where elected officials face significant political and financial pressures to stake out strong opinions on issues and stand by them, members of the Supreme Court, once appointed, seem to be more open to being persuaded by others’ arguments and legal interpretations.

The benefits of consensus building

Looking beyond the Supreme Court, groups that focus on making decisions through consensus tend to reach agreements that are more stable, more efficient, and wiser than groups that make decisions through majority rule— that is, through a “yea or nay” vote, 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 (Oxford University Press, 2006).

Susskind and Cruikshank are careful to note that consensus need not be the same thing as unanimity. Rather, consensus involves building solidarity and agreement within a group to get the most members possible to buy into a shared decision. Although unanimity is the goal, because it can be so difficult to achieve, groups should be prepared to settle for “overwhelming agreement”— the support of almost all members. Moreover, the authors of Breaking Robert’s Rules stress that the goal should be informed consensus: parties should thoroughly understand what they’re agreeing to and be prepared to live with the proposed settlement.

As compared to groups that follow a “winner take all” approach to decision making, groups that take time to build consensus craft agreements that include more diverse perspectives and thus hold up better over time.

Consensus building: A five-step approach

Susskind and Cruikshank outline five essential steps for achieving consensus in your group negotiations:

  • 1. Include the right people and set expectations. When convening meetings, take time to assess who will be affected by a deal. Ensure that those present have a solid understanding of the substance and context of the negotiation. To keep the group’s agenda from being unduly influenced by its leaders, consider hiring an unbiased professional facilitator to lead the consensus-building process.
  • 2. Assign roles and responsibilities. Once the group has convened, negotiate the ground rules that will govern your problem-solving effort and assign responsibilities. Define your commitment to consensus building and decide what you will do if consensus proves impossible. You might also write up a mission statement, set a timetable and budget, and determine who will document your discussions.
  • 3. Engage in group problem solving. In a typical group problem-solving negotiation, various attendees present their views, perhaps entertain some modifications to their proposals, and hold votes on their proposals to determine a “winner.” By contrast, in a consensus-building approach, the group as a whole focuses 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 aims to craft a “single text” package that meets everyone’s needs before seeking firm commitments.
  • 4. Reach agreement. Once a single text has been negotiated, the meeting facilitator asks each participant whether or not he or she accepts the agreement on the table. If some participants don’t, they are expected to further clarify their interests and propose improvements. The goal is to maintain effective communication and build strong relationships. This process continues until the group has achieved overwhelming consensus.
  • 5. Hold people to their commitments. Because surprises are inevitable, implementation is often the hardest stage in any negotiation. Changes to the political or economic context, new laws, new parties, and unforeseen events can lead group members 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.

A coordinated campaign

Supreme Court justice Anthony Kennedy’s decision to retire may have been hastened by a persuasion campaign carried out by the Trump administration, according to the New York Times.

Following a standard playbook, White House allies argued in the media and to Kennedy directly that his judicial legacy would be threatened if he waited to retire until after the November midterm elections. If Democrats take control of the Senate, they cautioned, an ideological liberal might be chosen to replace the more moderate justice.

Members of the Trump administration also capitalized on existing professional and personal ties to Kennedy and worked on fostering new ones, the Times reports:

  • The White House chose Kennedy to administer the judicial oath to incoming justice Neil Gorsuch, who had served Kennedy as a law clerk. At the ceremony, Trump praised Kennedy lavishly, despite the fact that the justice is reviled on the political right for his decision to uphold access to abortion, among other issues.
  • After meeting Kennedy at her father’s inauguration, Trump’s daughter Ivanka visited the Supreme Court with her daughter as Kennedy’s guest.
  • After Gorsuch’s nomination, a White House official publicly floated the names of two candidates for the next Supreme Court vacancy—both of them former clerks of Kennedy. Trump also nominated three of Kennedy’s former clerks to federal appeals courts.
  • When he was a banker at Deutsche Bank, Kennedy’s son, Justin, worked closely with Trump when he was a real estate developer. “Say hello to your boy,” Trump said to Kennedy after his first address to Congress in February 2017. “Special guy.” Deutsche Bank loaned Trump $1 billion at a time when other banks shunned his business.

When we’re trying to persuade others to come around to our point of view in negotiation and other contexts, it can be tempting to pull out all the stops. But while personal, financial, and professional ties may get us what we want, they can also create unwanted scrutiny about our ethics. Think about who may be excluded from or harmed by your efforts, and aim for an agreement that protects your reputation.

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