The History of the Per Curiam Opinion: Consensus and Individual Expression on the Supreme Court

Readers of Supreme Court opinions have become so accustomed in recent years to the multiple concurrences and dissents that accompany important opinions that it is difficult to recall that this is a relatively recent phenomenon. It is only in the past century that the Court's traditional balance of the institutional and the personal has shifted from an insistence on presenting what Learned Hand termed "monolithic solidarity" to the world. That insistence began with Chief Justice Marshall's determination that the Court should resolve its cases, not seriatim, with each Justice writing separately, but instead in a single, unified opinion. The resulting culture of the Court, one that discouraged both dissenting and concurring opinions as assaults on this unified front, persisted from Marshall's day into the 1930s.3 The Court in the nineteenth and early twentieth centuries thus deliberately submerged the idea of a personal voice in the fiction of a collective voice, one that spoke for the institution rather than for the Justice who served as its designated scribe.