No full-text available
To read the full-text of this research,
you can request a copy directly from the authors.
Strategic Policy Considerations and Voting Fluidity on the Burger Court
Abstract
Justices are strategic actors. This is particularly evident when they change their votes between the original conference on the merits and the Court's announcement of the final decision. We predict that such voting fluidity may be influenced by strategic policy considerations, justices' uncertainty over issues involved in a case, the chief justice's interest in protecting his prerogatives and other institutional pressures. To test our hypotheses, we explore the occurrence of fluidity on the Burger Court (1969-85). Using logistic regression, we show that justices' decisions to change their votes stem primarily from strategic policy considerations. In limited instances the decision to switch can be attributed to either uncertainty or institutional pressures. Our findings suggest that the decision of a justice to join nn opinion results from more than his or her initial policy preferences; final votes are influenced as well by the politics of opinion writing.
... These works suggest that at various stages of Supreme Court decision making, justices recognize that they must account for the projected actions of their colleagues in order to secure outcomes that are simultaneously optimal and feasible within a given context. This leads justices to pursue actively certain bargaining and accommodation strategies (e.g., Maltzman and Wahlbeck 1996;Wahlbeck et al. 1998). ...
... As mentioned, the data come from the Spaeth (2004) Case complexity has been measured using factor scores retrieved from a factor analysis of the number of issues in the case, the number of legal provisions, and the number of opinions written in the case (Maltzman and Wahlbeck 1996). 9 I have found that this measure does not possess satisfying measurement properties given the lopsided distributions of both the number of legal provisions and issues (see Table B. ...
... Murphy (1964) asserted justices' positions might fluctuate from their vote at conference to the final vote on the merits and scholars demonstrate justices switch votes based on ideology, uncertainty, institutional norms, and strategic motivations (see, e.g., Howard 1968;Brenner 1982;Hagle and Spaeth 1991;Maltzman and Wahlbeck 1996). These anecdotal (see, e.g., Woodward and Armstrong 1979) and scholarly (e.g., Johnson, Spriggs, and Wahlbeck 2005) works suggest strategic considerations play into justices' first vote at conference but do not hint at whether these considerations (or others) may result in position fluidity prior to conference. ...
... The lack of comparable data for the entire Court constrains our ability to test our model further. However, past work on voting fluidity demonstrates vote switching from conference to the final votes on the merits occurred for all justices on the Burger Court, which suggests it is unlikely that fluidity during the oral argument stage is unique to Blackmun and Powell (Maltzman and Wahlbeck 1996). Moreover, we believe that because of key differences between Blackmun and Powell, they are the right two justices to examine if we seek to draw generalizable conclusions. ...
Although scholars have established that oral arguments play a role in Supreme Court decision making, a fundamental question remains: can oral arguments change justices’ votes? Using data on the positions taken by Justices Blackmun and Powell prior to oral arguments, the authors seek to answer this question while implicitly addressing another: how effectively can attorneys persuade the Court during arguments dominated by justices attempting to persuade each other? The authors find that in a significant minority of cases, justices are persuaded to switch their vote as a result of oral argument and that high-quality attorneys play a central role in that persuasion.
... Using this approach, they have sought to explain how strategic constraints influence factors such as the justice chosen to write the Court's majority opinion (Rohde 1972;Maltzman and Wahlbeck 1996a;Maltzman et al. 2000), the voting decisions of individual justices, including when they change their original votes (Brenner and Spaeth 1988;Bonneau et al. 2007), and the final outcomes of cases (Rohde and Spaeth 1976). Political scientists have also attempted to understand the role of ideology on the Court, generating a debate between those who believe the majority opinion writer's opinion is most important (Murphy 1964;Bonneau et al. 2007;Epstein and Knight 1998;Maltzman and Wahlbeck 1996b; Rohde and Spaeth 1976;Slotnick 1979) and those who argue the median justice is the most influential (Spiller 2000; Anderson and Tahk 2007). ...
... While the majority of Supreme Court scholars agree that ideology plays a key role, at least two major theories have been proposed to explain how it affects the process. The agenda-control model holds that the writer of the Court's majority opinion holds disproportionate control over the judicial process (Murphy 1964;Epstein and Knight 1998), although scholars generally recognize that this power is not monopolistic (Maltzman and Wahlbeck 1996b;Rohde and Spaeth 1976;Slotnick 1979). A contrary view, based on the median-voter theorem (Downs 1957), holds that the justice with the median ideology on the Court will be the pivotal voter who plays the most important role in the process (Spiller 2000;Anderson and Tahk 2007). ...
The Supreme Court's reasoning in a decision, including the precedent it cites in support of that reasoning, can be as significant as the outcome in determining the long-term impact of a case. As a result, the content of opinions can be used to provide important new insights into existing debates regarding judicial politics. In this article we present a strategic content model of the judicial process, which demonstrates how opinion content results from the strategic interaction between justices during the Court's bargaining process. This is the first article to show on a large scale that the extent to which a majority opinion writer cites authoritative precedent is systematically influenced by the decisions and ideology of other justices. We find that the Court generates opinions that are better grounded in law when more justices write concurring opinions. This demonstrates that justices write concurring opinions based not just on a preference for making their opinions known, but also to influence the reasoning relied on by the majority opinion. We also show that diversity of opinion on the Court, a factor often overlooked in the political science literature, has a significant impact on the extent to which a Court opinion cites authoritative precedent. Finally, our results provide a novel test of the agenda-control and median-justice models. We find that the ideology of the median justice influences the citation of precedent in the majority opinion, whereas the majority opinion writer's ideology does not, suggesting that agenda-setting powers are not as strong as previously claimed.
... It is remarkable that a model of conditionally independent voters does so well. Justices decide on which cases to consider together (known as the 'rule of four' on the Supreme Court [3]), they sit on the same bench during oral arguments, they trade notes during the writing process [26], they strategize about opinion writing and assignment [27,28], and they are even friends [29]. The many examples of interaction suggest that there is ample space for them to influence each other. ...
The collective statistics of voting on judicial courts present hints about their inner workings. Many approaches for studying these statistics, however, assume that judges’ decisions are conditionally independent: a judge reaches a decision based on the case at hand and his or her personal views. In reality, judges interact. We develop a minimal model that accounts for judge bias, depending on the context of the case, and peer interaction. We apply the model to voting data from the US Supreme Court. We find strong evidence that interaction is an important factor across natural courts from 1946 to 2021. We also find that, after accounting for interaction, the recovered biases differ from highly cited ideological scores. Our method exemplifies how physics and complexity-inspired modelling can drive the development of theoretical models and improved measures for political voting.
This article is part of the theme issue ‘A complexity science approach to law and governance’.
... Third, the extended process of decision making in courts that use the procrustean model fails to pinpoint exactly where case complexity manifests itself and what it impacts. For example, in an early effort to measure the complexity of cases on the U.S. Supreme Court, Maltzman and colleagues (Maltzman and Wahlbeck 1996; see also Maltzman et al. 2001) used the number of separate opinions, the number of issues, and the number of legal provisions in a decision. But when researchers misapply these measures they risk "[flipping] the causal chronology" (Clark et al. 2015:38). ...
While high courts with fixed time for oral arguments deprive researchers of the opportunity to extract temporal variance, courts that apply the “accordion model” institutional design and adjust the time for oral arguments according to the perceived complexity of a case are a boon for research that seeks to validate case complexity well ahead of the courts’ opinion writing. We analyze an original data set of all 1,402 merits decisions of the Norwegian Supreme Court from 2008 to 2018 where the justices set time for oral arguments to accommodate the anticipated difficulty of the case. Our validation model empirically tests whether and how attributes of a case associated with ex ante complexity are linked with time allocated for oral arguments. Cases that deal with international law and civil law, have several legal players, are cross-appeals from lower courts are indicative of greater case complexity. We argue that these results speak powerfully to the use of case attributes and/or the time reserved for oral arguments as ex ante measures of case complexity. To enhance the external validity of our findings, future studies should examine whether these results are confirmed in high courts with similar institutional design for oral arguments. Subsequent analyses should also test the degree to which complex cases and/or time for oral arguments have predictive validity on more divergent opinions among the justices and on the time courts and justices need to render a final opinion.
... Additionally, the need to maintain a MWC also means that justices must sometimes engage in bargaining in order to obtain a majority, leading to strategic costs (Maltzman & Wahlbeck, 1996;Wahlbeck, Spriggs, & Maltzman, 1998). Similarly, the need to build a MWC may dilute and complicate the legal rules and tests the Court creates to ensure compliance (Schwartz, 1992). ...
... This perception may exist because, unlike the Chief Justice of the United States Supreme Court, many state chief justices do not have the power to assign court opinions. Indeed, only 20 states allow their chief justice to assign court opinions in some form (Hughes, Wilhelm, and Vining 2015). 1 The voluminous literature examining opinion assignment on the United States Supreme Court shows that this power is a potent agenda-setting and organizational tool (Maltzman and Wahlbeck 1996;Johnson, Spriggs, and Wahlbeck 2005;Maltzman and Wahlbeck 2004;Wahlbeck 2006). He can use his power to reward or punish associate judges. 2 He can also use opinion assignment to bend judicial policy toward his own preferences, either through assigning the opinion to another justice or to himself (Johnson, Spriggs, and Wahlbeck 2005;Sill, Ura, and Haynie 2010). ...
While women are underrepresented in many political institutions and leadership positions, nearly half of state supreme court chief justices are women. Is there something about the role of state supreme court justice that facilitates the recruitment of women to this important political position? We examine whether the selection of a woman chief is driven by the court’s institutional need for women’s leadership style or simply the supply of qualified justices. We find that ideological diversity drives demand for a woman chief. A supply of experienced women justices also has a significant impact on likelihood of selection.
... However, it has also been widely documented that there exists a norm by which opinion assignments are distributed evenly among the justices (e.g., Brenner and Palmer 1988;Maltzman and Wahlbeck 1996b;Maltzman et al. 2000). Assuming this norm is binding, if the justices' relative preferences do not vary from case to case, then it is not possible for the chief justice to assign cases disproportionately to his ideological allies, though he might assign disproportionately important cases to them. ...
Ideal point estimation in political science usually aims to reduce a matrix of votes to a small number of preference dimensions. We argue that taking a nonparametric perspective can yield measures that are more useful for some subsequent analyses. We propose a conditional autoregressive preference measurement model, which we use to generate case-specific preference estimates for US Supreme Court justices from 1946 to 2005. We show that the varying relative legal positions taken by justices across areas of law condition the opinion assignment strategy of the chief justice and the decisions of all justices as to whether to join the majority opinion. Unlike previous analyses that have made similar claims, using case-specific preference estimates enables us to hold constant the justices involved, providing stronger evidence that justices are strategically responsive to each others' relative positions on a case-by-case basis rather than simply their identities or average relative preferences. © 2016 by the Southern Political Science Association. All rights reserved.
... In either scenario, the assignor can select him or herself to write the majority's opinion. Most studies that investigate strategic opinion assignment assume that the assignor's ideal policy position is his or her foremost priority when selecting an opinion writer (e.g., Hammond, Bonneau, and Sheehan 2005;Lax and Cameron 2007;Maltzman, Spriggs, and Wahlbeck 2000;Maltzman and Wahlbeck 1996;Rohde 1972). For the most part, these investigations consider the bargaining that takes place among the justices based on their individual policy preferences and not how the public at large will react to the resulting opinion. ...
Does the identity of a majority opinion writer affect the level of agreement a Supreme Court decision receives from the public? Using a survey experiment, we manipulate majority opinion authors to investigate whether individuals are willing to agree with Supreme Court opinions authored by ideologically similar justices even though the decisions cut against their self-identified ideological policy preferences. Our study provides insight into the extent to which policy cues—represented by a political institution’s policy messenger—affect agreement with a given policy. We find that a messenger effect indeed augments the level of agreement a given Supreme Court case receives.
... Nevertheless, the status quo has rarely been incorporated in models of judicial decision-making. 4 Instead, judicial opinions are often attributed by judicial scholars to the justices' preferences over the competing alternatives presented in the case, as articulated by the opposing sides during oral argument (see McGuire, Smith, and Caldeira 2004) or by the majority and dissenting opinions (see Maltzman and Wahlbeck 1996). ...
... In complex cases the need for information is particularly high because it is particularly difficult to judge how case outcomes, multiple legal policy areas and policy preferences will interact (Bailey et al. 2005). Put differently, justices may have differing preferences depending on which legal issue is personally most important to them (Maltzman and Wahlbeck 1996); a situation that is only exacerbated by the fact that there may be multiple opinions in circulation, thus complicating the process of discerning the likely outcome (see, e.g., Maltzman et al. 2000). ...
... It measures whether a case had more or less amici filings than the terms average case (c.f., Bonneau et al., 2007:902, n. 21). Wahlbeck, 2005), and that uncertainty and institutional pressures will vary over time (e.g., Maltzman and Wahlbeck, 1996). I measure civil rights and liberties with the Spaeth (2006) "value" variable to account for previous research that shows the attitudinal model is more successful in some areas than others (Segal and Spaeth, 2002:419-21;Gillman, 2003:4), and the proportion of precedential votes differs across issue areas (Spaeth and Segal, 1999:311-12). ...
Why do policy-motivated justices conform to unfavorable precedents? This article suggests that two theories, social-legal backgrounds and precedential characteristics, help explain why justices support unfavorable precedents. To test the explanatory power of these theories, the article uses data from the 1953-94 terms that ascertains whether justices cast precedential votes. The results, after testing multiple indictors of each theory, suggest that precedential voting is more likely when cases have older landmark precedents, cases have positive precedent vitality, and justices have a strong social-legal background. However, the likelihood of precedential voting decreases when justices have an elite legal pedigree and when justices confront a well-cited landmark precedent. This implies that future tests of legal decision making need to sort out the ambivalent effects of precedent and social-legal backgrounds.
... Additionally, Maltzman, Spriggs, & Wahlbeck (2000) break down Justices' responses to a majority opinion among the categories of Join Majority, Wait, Suggestion, Threat, Will Write, Circulate/Join Concur, and Circulate/Join Dissent, and find that in 24.1 percent of cases a Justice made a suggestion or threat seeking a change in the majority opinion. The result of these various memoranda will often be a tradeoff for the drafting Justice between the closeness of the majority opinion to his or her draft opinion and the size and composition of the majority (Maltzman, Spriggs, & Wahlbeck 2000;Maltzman & Wahlbeck 1996;Scalia 1994;Brenner 1980). ...
Should a strategic Justice assemble a broader coalition for the majority opinion than is necessary, even if that means accommodating changes that move the opinion away from the author’s ideal holding? If the author’s objective is to durably move the law to his or her ideal holding, the conventional answer is no, because there is a cost and no corresponding benefit. We consider whether attracting a broad majority coalition can placate future courts. Controlling for the size of the coalition, we find that cases with ideologically narrow coalitions are more likely to be treated negatively by later courts. Specifically, adding either ideological breadth or a new member to the majority coalition results in an opinion that is less likely to be overruled, criticized, or questioned by a later court. Our findings contradict the conventional wisdom regarding the coalition-building strategy of a rational and strategic opinion author, establishing that the author has an incentive to go beyond the four most ideologically proximate Justices in building a majority coalition. And because of later interpreters’ negative reactions to narrow coalitions, the law ends up being less ideological than the Justices themselves.
Case complexity is central to the study of judicial politics. The dominant measures of Supreme Court case complexity use information on legal issues and provisions observed postdecision. As a result, scholars using these measures to study merits stage outcomes such as bargaining, voting, separate opinion production, and opinion content introduce posttreatment bias and exacerbate endogeneity concerns. Furthermore, existing issue measures are not valid proxies for complexity. Leveraging information on issues and provisions extracted from merits briefs, we develop a new latent measure of Supreme Court case complexity. This measure maps with the prevailing understanding of the underlying concept while mitigating inferential threats that hamper empirical evaluations. Our brief-based measurement strategy is generalizable to other contexts where it is important to generate exogenous and pretreatment indicators for use in explaining merits decisions. (JEL K00, K40)
Among all the institutions or organizations who give file briefs or petition the U.S. Supreme Court, the U.S. Solicitor General (SG) may be the most powerful. It is well documented that petitions with the support of the SG are much more likely to be granted certiorari, and, if the SG advocates a decision, the Court is likely to decide in a likeminded manner. We examine what influence judicial attendance at the State of the Union (SOTU) may have on the activity of the SG Others have explored the motivating factors for justice attendance; these studies have found policy disagreements and public opinion play a role. We argue and find that the SOTU is a valid public announcement of the president’s agenda and when there are fewer justices in attendance, the SG is motivated to file more amicus briefs. Our findings line up with these expectations.
The Chief Justice is viewed as the leader of the Supreme Court. In their position of leadership, many –including the Chief Justice– believe it is incumbent upon the Chief Justice to maintain and enhance the Court’s institutional legitimacy. This paper hypothesizes that because the Chief Justice is concerned with the Court’s legitimacy, he will be influenced by public opinion to a greater extent than the Associate Justices. Analysis of Supreme Court decision-making between 1952 and 2016 supports this hypothesis.
The State of the Union represents an opportunity for the president to share policy goals with other political actors. Thus, the State of the Union can proxy how much information the Court has about executive preferences when receiving a case. We find that the less time a president devotes to a policy area, the more likely the Court is to issue a request for a brief in a case dealing with that issue area. This finding indicates that the Court is cognizant of presidential signals of policy preferences and actively seeks to supplement its understanding of the executive’s preferences.
The U.S. Constitution, the oldest written constitution, gives each branch of the federal government certain distinct powers, each apportioned through a separated system with built-in checks and balances calculated to guard against abuses perpetrated by any one branch. The nation is therefore said to have three separate governmental branches sharing power. This chapter introduces the Supreme Court and its exercise of power, examining milestone decisions beginning with Marbury v. Madison (1803). It then explains the framework used for exploring the Court’s policy-making across the three major constitutional eras as laid out in Robert McCloskey’s The American Supreme Court.
We argue that given finite resources to review the large number of lower court decisions, Supreme Court justices should primarily be interested in aggregate responses to their precedents. We offer a theory in which the US Supreme Court drives aggregate responses to its decisions by signaling the utility of its precedents to judges on the lower courts. Specifically, we argue that lower court judges have a greater propensity to rely on a Supreme Court decision when the justices explicitly direct a lower court to consider a formally argued decision in its summary decisions. Our results demonstrate that such signals significantly increase the frequency with which the lower courts adopt the precedents of the US Supreme Court. We corroborate the causality of these links through qualitative analyses, distance matching methods, and simultaneous sensitivity analysis. Our study offers new and important insights on judicial impact and decision-making behavior in the American courts.
This study offers a new approach to understanding the president's agenda and impact. Because the court lacks the ability to implement its decisions, it depends on political actors and the public to maintain legitimacy. We argue that the president's decision to go public on an issue, depending on the intensity in which it is done, induces the Court to defer to the executive. We examine the Supreme Court's responsiveness to presidential preferences on civil liberties and rights cases. If a policy area is especially important to the president, we assume it is in this area that he will work hardest to protect his interests. We find that the greater the proportion of the State of the Union that the president devotes to the topic area of civil liberties and rights, the more likely the Court is to rule in the president's ideological direction.
Los juristas suelen analizar la argumentación desde una perspectiva formal y normativa aplicada, en su mayoría, al ámbito de los jueces y sus decisiones. Este artículo adopta una perspectiva distinta, en tanto examina de manera empírica la calidad de la argumentación de las demandas propuestas dentro de procesos de control constitucional abstracto. En esta línea, este trabajo evalúa en qué medida la habilidad argumentativa de los accionantes da cuenta del sentido de las decisiones judiciales. Para el efecto, se define la calidad de la argumentación como la habilidad del demandante para: (i) identificar normas constitucionales violadas y disposiciones inconstitucionales; (ii) exponer sus argumentos de manera clara y coherente, y (iii) sustentar sus pretensiones sobre la base de fuentes jurídicas. A partir del análisis cuantitativo de una base de datos original que incluye cuarenta acciones públicas de inconstitucionalidad resueltas por la Corte Constitucional de Ecuador desde 2008 hasta 2016 y una encuesta dirigida a expertos, este artículo halla que, a diferencia del tipo de accionante (público o privado), la argumentación de las demandas no tiene un impacto estadísticamente significativo sobre las probabilidades de obtener una decisión judicial favorable para las pretensiones de quien la interpone.
The newly available docket books of the Hughes Court justices offer valuable insight into the deliberations of the Supreme Court of the United States during some of its most important and tumultuous terms. This Article analyzes the content of these docket books, both confirming and dispelling accounts of the justices' voting behaviors that have persisted up to the present day. First, the docket books confirm that the justices often changed their positions in major cases in the interval between their votes in conference and their final votes on the merits. Second, these sources confirm that the Court achieved comparatively high rates of unanimity even during its most fractious terms because justices who had served on earlier Courts had internalized a norm under which those who lost at the conference vote commonly acquiesced in the judgment of the majority. Third, the docket books reveal that the justices who most frequently acquiesced in this period's major cases were those widely considered to be its most recalcitrant conservatives: James Clark McReynolds and Pierce Butler. Finally, the docket books lend little support to the common claim that Chief Justice Charles Evans Hughes frequently changed his vote in major cases for the purpose of lending greater credibility to judgments rendered by a divided Court.
We explore the factors that lead Supreme Court justices to integrate disagreeable rhetoric into their written, signed opinions. We suggest that deploying disagreeable rhetoric is a costly exercise that is governed by strategic considerations. In particular, we posit that justices will be more willing to pay the costs of disagreeability for issues that are of high personal or legal significance, while they will prove less willing to employ disagreeable rhetoric as they drive to accommodate an ideologically diverse set of colleagues. Examining judicial opinions from 1946-2011 using text-based measures of negative language, we find consistent evidence on both accounts. Moreover, we find that several predictors are robust across majority, dissenting, and concurring opinions. Finally, to explore one consequence of disagreeable rhetoric, we show that it is negatively related to the size of majority coalitions, suggesting important implications for the legitimacy of the Supreme Court.
Scholars have analyzed how those with close ties to Supreme Court justices—including family, friends, and political and legal elites—influence judicial behavior, but there are still questions about how law clerks’ attributes affect their relationship to their justice. This is important because clerks’ genders may affect their credibility and their ability to influence their justice’s behavior when a case involves a clear gender dimension. Scholars have uncovered a great deal about the determinants and consequences of the credibility of a different set of attorneys—those who present at oral argument. I apply insights from the literature on attorney credibility to the context of law clerks and analyze whether women enjoy greater credibility and influence in cases involving sex discrimination and abortion. I find that women influence their justice’s vote on the merits, but this influence is conditional on the number of women a justice hires and the justice’s ideology. This finding is robust to accounting for potential spurious factors and to balancing covariates via matching. This analysis has implications for how the justices acquire and use information from their environment to aid in their decision making.
This chapter combines historical evidence and social-psychology insights to contend that “coherent” Supreme Courts—those with five or more Justices who agree on crucial issues—are far more likely to overrule precedents, and to aggressively attempt to create broad precedents, than are “incoherent” Courts. The author explains the social-psychology dynamics that contribute to the formation (or absence) of coherent Court majorities. He then surveys three historical periods to illustrate the divergent behavior of coherent versus incoherent Courts: the post-1936 New Deal Court, which was highly coherent on most issues and thus ambitious in both overturning and establishing precedent; the Warren Court, which was incoherent and cautious before 1962 but became coherent and aggressive thereafter; and the Rehnquist Court, which was incoherent on most issues (dominated by two centrist swing Justices) and thus adopted a minimalist approach toward precedent. The author concludes with a preliminary analysis of the Roberts Court, suggesting that it is generally incoherent and therefore reluctant to formally overrule precedent in most areas.
Previous research examining the impact of extra-Court factors on Supreme Court decision making has developed conflicting theoretical perspectives supported with limited empirical evidence. In an attempt to better assess the influence of Congress on Court decisions, we develop a theoretical model specifying the conditions under which congressional preferences might constrain justices' votes on the merits. More specifically, we argue that previous congressional overrides in an issue area and case-level interest group activity make congressional preferences salient for the justices. In these threat situations, the justices will be most likely to shift their final votes on the merits in a manner congruent with the preferences of Congress. Based on our logit analysis of data on all orally argued statutory cases from 1963 to 1995, we find mixed support for our hypotheses and conclude that there are limited conditions under which congressional preferences may influence a justice's vote.
Recent studies have established that the decisions of a federal court of appeals judge are influenced not only by the preferences of the Judge, but also by the preferences of her panel colleagues. Although the existence of these "panel effects" is well documented, the reasons that they occur are less well understood. Scholars have proposed a number of competing theories to explain panel effects, but none has been established empirically. In this Article, I report an empirical test of two competing explanations of panel effects-one emphasizing deliberation internal to a circuit panel, the other hypothesizing strategic behavior on the part of circuit judges. The latter explanation posits that court of appeals judges act strategically in light of the expected actions of others and that, therefore, panel effects should depend upon how the preferences of the Supreme Court or the circuit en banc are aligned relative to those of the panel members. Analyzing votes in Title VII sex discrimination cases, I find no support for the theory that Panel effects are caused by strategic behavior aimed at inducing or avoiding Supreme Court, review. On the other hand, the findings strongly suggest that Panel effects are influenced by circuit preferences. Both minority and majority judges on ideologically mixed panels differ in their voting behavior depending upon how the preferences of the circuit as a whole are aligned relative to the panel members. This study provides evidence that Panel effects do not result from a dynamic wholly internal to the three judges hearing a case, but are influenced by the environment in the circuit as a whole as well.
Past research on bureaucratic compliance with Supreme Court opinions offers few comprehensive theoretical frameworks and even fewer rigorous empirical tests. I argue that bureaucracies comply based on the costs or benefits of alternative ways of responding to the Court. Agencies develop these expectations from the environments within which they implement opinions, which I conceptualize as attributes of Court opinions, agency characteristics, and external actors. I show that federal bureaucracies generally comply with the Court, though they sometimes respond to the Court in self-interested ways. Using a probit model of agency implementation of Court opinions from the 1953 through 1990 terms, I also demonstrate that several factors explain whether agencies comply, including the nature of the Court's opinions, the characteristics. of the responding agency, and support by societal interests. I further illustrate that the absence of defiance or evasion most likely results from the interdependencies between federal agencies and the Court. The implication is that legal rules are important, setting up referents for behavior, and their ability to encourage compliance stems in part from their actual content.
In a ground-breaking study on the nature of judicial behaviour in the Supreme Court of Canada, Donald Songer, Susan Johnson, C.L. Ostberg, and Matthew Wetstein use three specific research strategies to consider the ways in which justices seek to make decisions grounded in "good law" and to show how these decisions are shaped within a collegial court. The authors use confidential interviews with Supreme Court justices, analysis of their rulings from 1970 to 2005, and measures that tap their perceived ideological tendencies to provide a critical examination of the ideological roots of judicial decision making, uncovering the complexity of contemporary judicial behaviour. Examining judicial behaviour through the lens of three different research strategies grounded in qualitative and quantitative methodologies, Law, Ideology, and Collegiality presents compelling evidence that political ideology is a key factor in decision making and a prominent source of conflict in the Supreme Court of Canada.
To what extent do the justices on the Supreme Court behave strategically? In Strategy on the United States Supreme Court, Saul Brenner and Joseph M. Whitmeyer investigate the answers to this question and reveal that justices are substantially less strategic than many Supreme Court scholars believe. By examining the research to date on each of the justice’s important activities, Brenner and Whitmeyer’s work shows that the justices often do not cast their certiorari votes in accord with the outcome-prediction strategy, that the other members of the conference coalition bargain successfully with the majority opinion writer in less than 6 percent of the situations, and that most of the fluidity in voting on the Court is nonstrategic. This work is essential to understanding how strategic behavior – or its absence – influences the decisions of the Supreme Court and, as a result, American politics and society.
Over the course of the past decade, the behavioral analysis of decisions by the Supreme Court has turned to game theory to gain new insights into this important institution in American politics. Game theory highlights the role of strategic interactions between the Court and other institutions in the decisions the Court makes as well as in the relations among the justices as they make their decisions. Rather than assume that the justices' votes reveal their sincere preferences, students of law and politics have come to examine how the strategic concerns of the justices lead to "sophisticated" behavior as they seek to maximize achievement of their goals when faced with constraints on their ability to do so. In Institutional Games and the U.S. Supreme Court, James Rogers, Roy Flemming, and Jon Bond gather various essays that use game theory to explain the Supreme Court's interactions with Congress, the states, and the lower courts. Offering new ways of understanding the complexity and consequences of these interactions, the volume joins a growing body of work that considers these influential interactions among various branches of the U.S. government. Contributors: Kenneth A. Shepsle, Andrew De Martin, James R. Rogers, Christopher Zorn, Georg Vanberg, Cliff Carrubba, Thomas Hammond, Christopher Bonneau, Reginald Sheehan, Charles Cameron, Lewis A. Kornhauser, Ethan Bueno de Mesquita, Matthew Stephenson, Stefanie A. Lindquist, Susan D. Haire, Lawrence Baum. © 2006 by the Rector and Visitors of the University of Virginia. All rights reserved.
How do Supreme Court justices decide their cases? Do they follow their policy preferences? Or are they constrained by the law and by other political actors?The Constrained Courtcombines new theoretical insights and extensive data analysis to show that law and politics together shape the behavior of justices on the Supreme Court. Michael Bailey and Forrest Maltzman show how two types of constraints have influenced the decision making of the modern Court. First, Bailey and Maltzman document that important legal doctrines, such as respect for precedents, have influenced every justice since 1950. The authors find considerable variation in how these doctrines affect each justice, variation due in part to the differing experiences justices have brought to the bench. Second, Bailey and Maltzman show that justices are constrained by political factors. Justices are not isolated from what happens in the legislative and executive branches, and instead respond in predictable ways to changes in the preferences of Congress and the president. The Constrained Courtshatters the myth that justices are unconstrained actors who pursue their personal policy preferences at all costs. By showing how law and politics interact in the construction of American law, this book sheds new light on the unique role that the Supreme Court plays in the constitutional order.
How do competing motivations influence the decisions of justices to author concurring opinions? Justices must balance their desire to shape the law and public policy toward their preferred position with the need for strong and stable coalitions. We construct a theoretical model of cooperative behavior that explicitly accounts for the competing individual- and group-level considerations of U.S. Supreme Court justices. Our theory identifies conditions specific to justices, coalitions, and cases that make the authoring of a separate opinion attractive to justices. We test these expectations using data from 40 years of justice votes within some 4,500 cases. The results of our empirical analyses support our theoretical expectations and show that the choice of a justice in the initial majority to write separately is conditional on characteristics of the justices and the coalition. We also highlight the important implications of our findings for the study of judicial decision making and policymaking more generally.
Over the last century, empirical legal scholarship has joined the ranks of the mainstream within the legal academy. In this article, Professor Heise traces the history of legal empiricism and discusses its growing role within the legal academy. First, the article traces legal empiricism through the twentieth century from the legal empiricism movement of the early twentieth century, to post-World War II efforts to revive legal empiricism, including the Chicago Jury Project and large-scale foundational support for empirical legal research, through current support for legal empirical research from both the law schools and other research centers. The article then discusses several factors which have influenced the recent growth in legal empirical research including: the increasing breadth and maturity of legal scholarship overall, an increase in collaborative research by law professors, a growing number of available datasets and sophisticated computational tools for statistical analysis, and an increasing call for empirical research from the bench. Next, the article uses empirical judicial decision-making literature to illustrate current trends in empirical legal research, including the two predominant research models of behaviorism and attitudinalism, and developing research in the areas of the legal, public choice, and institutionalism models for explaining judicial decision making. Finally, the article discusses some of the inherent limitations of current research methodologies and available databases, but concludes that structural limitations aside, empirical legal scholarship has arrived as a research genre and will continue to flourish.
Judicial scholars have devoted significant effort to analyzing and understanding the implications of justices switching their votes during the opinion drafting stage, known as voting fluidity. Given that justices individually begin their consideration of the merits of cases with their preparation for oral arguments, I argue that these earlier positions in cases are valuable indicators of subsequent behavior, such as voting fluidity. More specifically, I find support for the notion that early fluidity, changing positions from before oral arguments to after, especially when combined with major shifts in the majority coalition, can be a bellwether of traditional fluidity. The analysis suggests that consideration of early fluidity and its motivations furthers our understanding of late fluidity above and beyond known indicators in the literature.
The support of amicus curiae may increase slightly the probability that the U.S. Supreme Court adopts the legal policy suggested by a litigant, but amici alone are rarely the source of legal doctrine. When amici echo the litigant's legal policy, however, they enhance the likelihood that the policy is chosen. Anecdotes that suggest that organized interests have a straightforward effect on Court policymaking appear to be just that—anecdotal. It seems instead that amici's influence on legal policy is conditional on their connection with litigants, and that they have—and may want—a less direct effect on Court policymaking than the literature suggests.
How can we assess relative bargaining power within the Supreme Court? Justices cast two votes in every case, one during the initial conference and one on the final merits of the case. Between these two votes, a justice is assigned to draft the majority opinion. We argue that vote switching can be used to detect the power of opinion authors over opinion content. Bargaining models make different predictions for opinion content and therefore for when other justices in the initial majority should be more or less likely to defect from initial positions. We derive hypotheses for how opinion authorship should affect vote switching and find that authorship has striking effects on switching. Authors thus have disproportionate influence and by extension so do chief justices, who make most assignments. This evidence is compatible with only the “author influence” class of bargaining models, with particular support for one model within this class.
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.
This study investigates the interaction between rules of appropriateness, popular support for judicial decisions, and policy preferences in assessments of the legitimacy of court decisions. We conduct two 3 × 2 × 2 experiments examining participants’ perceptions of legitimacy in cases involving the tort liability of gun manufacturers (Experiment 1) and same-sex marriage (Experiment 2). By manipulating the explanation for the judge's decision (bribe, political contribution, ideology, and law), we examine how participants assess the legitimacy of motivations suggesting compliance with, and deviations from, rules of appropriate judicial behavior in relation to one another. We also analyze how such rules interact with other factors theorized to influence assessments of legitimacy. Our findings demonstrate that rules of appropriateness matter most in participants’ assessments of the legitimacy of court decisions. Moreover, as hypothesized, the influence of other variables is conditioned on compliance with decision-making rules. In Experiment 1, broad public support for decisions enhances legitimacy assessments, but only where the grounds of decision are not viewed as wholly inappropriate. In Experiment 2, involving the salient issue of same-sex marriage, personal preferences influence legitimacy assessments, but again, not where participants view grounds for decision as particularly suspect.
For four decades scholars have sought to explain the rise of dissensus on the U.S. Supreme Court. While the specific explanations they offer vary, virtually all rest on a common story: during the nineteenth (and into the twentieth) century, the Supreme Court followed a norm of consensus. That is, the justices may have privately disagreed over the outcomes of cases but masked their disagreement from the public by producing consensual opinions. The problem with this story is that its underlying assumption lacks an empirical basis. Simply put, there is no systematic evidence to show that a norm of consensus ever existed on the Court. We attempt to provide such evidence by turning to the docket books of Chief Justice Waite (1874-1888) and making the following argument: if a norm of consensus induced unanimity on Courts of by-gone eras, then the norm may have manifested itself through public unanimity in the face of private conference disagreements. Our investigation, which provides systematic support for this argument and thus for the existence of a norm of consensus, raises important questions about publicly unified decision-making bodies, be they courts or other political organizations.
Numerous studies on judges in various countries have found that judges behave strategically in order to obtain politically favourable case outcomes. In this study, we examine whether chief justices of the South African Supreme Court of Appeal1 strategically assign judges to panels to maximize the political favourability of case outcomes. We confirm what other South African scholars have found, that chief justices do strategically make panel assignments. More critically, our analysis shows that they take into account the cumulative composition of the final panel rather than solely considering the individual judges. Specifically, we find that chief justices attempt to make panel assignments in order to maximize the ideological proximity of a minimum winning coalition on the panel, especially in highly salient cases. We assert that by strategically appointing the panels, the chief increases the likelihood that the minimum number of judges necessary will vote in his preferred direction. Thus, we provide further evidence that judges engage in strategic behaviour during the decision-making process.
Previous research indicates that U.S. Supreme Court justices who are likely to control opinion assignments may withhold votes in an initial round of conference voting in circumstances that suggest that this behavior has strategic origins. Specifically, scholars have suggested that justices may pass in conference voting to gain control over the opinion assignment. This study extends this literature by developing a theory of the relationship between strategic passing in a conference vote and opinion assignment, which is assessed through a quantitative analysis of opinion assignments made by Chief Justice Burger. Specifically, we argue that justices selected to write opinions by those who have passed to strategically join a majority will be more ideologically peripheral compared to the majority coalition as a whole than justices who are assigned to write opinions following conference votes cast in order of seniority. Consistent with this theory, we find that Chief Justice Burger, indeed, made opinion assignments that diverged more strongly from the ideological composition of the Court's majority when he passed in conference compared with opinion assignments he made when he voted in order of seniority.
In the past few decades, the states have gained more discretion over policy adoption and implementation. Some of this expanded discretion has resulted from federal court rulings, as the states have increasingly used these courts to achieve their policy goals. But some states are more successful in the federal courts than others. Why is this? We examine cases argued by states in the United States Courts of Appeals between 1970 and 1996 to answer this question. Contrary to research at the Supreme Court level, we find no overall trend that the states are becoming more efficacious in court over time. We also find that the differences among the states' success in court cannot be attributed simply, or even primarily, to disparities in resources. Rather, case attributes and judicial attitudes provide the best explanations for state success in the Courts of Appeals.
This Article tests for the presence of bias in judicial citations within federal circuit court opinions. Our findings suggest bias along three dimensions. First, judges base outside circuit citation decisions in part on the political party of the cited judge. Judges tend to cite judges of the opposite political party less compared with the fraction of the total pool of opinions attributable to the opposite political party judges. Second, judges are more likely to engage in biased citation practices in certain high stakes situations. These high stakes situations include opinions dealing with certain subject matters (such as individual rights and campaign finance) as well as opinions in which another judge is in active opposition. Third, judges cite more to those judges that cite back to them frequently, suggesting the presence of "mutual" citation clubs.
Originalism is a mode of interpreting the U.S. Constitution that holds that the original intent or original meaning of the Constitution is not only relevant but authoritative – that judges are obligated to follow the framers’ original intent and meaning when resolving cases. Normative questions surrounding originalism’s merit have produced one of the great constitutional debates of recent decades. This article compares and contrasts the First Amendment originalism of three justices: William Brennan, Antonin Scalia, and Clarence Thomas. It examines every First Amendment opinion prior to the 2011 term written by the justices that contains originalism. The article concludes all three justices used originalism to support a wide variety of arguments in a wide variety of First Amendment cases. In addition, the analysis demonstrates that Justices Scalia and Thomas more frequently supported the First Amendment in opinions in which they used originalism, a finding that contradicts the idea that originalism is associated with judicial restraint. The article contends that, with a few minor exceptions, none of the justices used originalism in a consistent way. Finally, the article offers concluding perspectives on originalism’s influence on current First Amendment jurisprudence and the limitations of using originalism for constitutional interpretations.
This article examines the use of originalist citations by Supreme Court justices in First Amendment freedom of expression opinions. It quantitatively examines when justices use originalist citations and qualitatively explores the content of the justices’ citations to determine how the justices are describing the original meaning of the First Amendment. The article concludes that justices uncritically relied on the citations as authoritative; that although it is identified with conservatism and judicial constraint, originalism was frequently used by liberal justices to expand constitutional protections; and that the “blank slate” of originalism makes it a useful tool for originalists and non-originalists alike.
Previous research examining the impact of extra-Court factors on Supreme Court decision making has developed conflicting theoretical perspectives supported with limited empirical evidence. In an attempt to better assess the influence of Congress on Court decisions, we develop a theoretical model specifying the conditions under which congressional preferences might constrain justices' votes on the merits. More specifically, we argue that previous congressional overrides in an issue area and case-level interest group activity make congressional preferences salient for the justices. In these threat situations, the justices will be most likely to shift their final votes on the ments in a manner congruent with the preferences of Congress. Based on our logit analysis of data on all orally argued statutory cases from 1963 to 1995, we find mixed support for our hypotheses and conclude that there are limited conditions under which congressional preferences may influence a justice's vote.
A substantial literature on lower federal courts and state courts suggests that the "haves" usually come out ahead in litigation because they possess superior resources for it and they reap advantages from their repeat player status. We investigate the success of 10 categories of litigants before the Warren, Burger, and Rehnquist Courts to determine whether the resources or experience of litigants has effects on Supreme Court outcomes paralleling those found in the courts below. While different categories of litigants are found to have very different rates of success, those differences do not consistently favor litigants with greater resources. A time series analysis of the success of different categories of litigants over the 36 years studied suggests that the changing ideological complexion of the Court has a greater impact on the success of litigants than differences among litigants in resources and experience.
The central focus of this investigation is the effect of litigation resources on the success of appellants appearing before the United States Courts of Appeals. The analysis parallels the earlier study by Wheeler et al. (1987) of who wins in state supreme courts. The findings are that litigation resources are much more strongly related to appellant success in the courts of appeals than in either the United States or state supreme courts. Upperdog litigants win much more frequently in the courts of appeals in both published and unpublished decisions of the courts of appeals even after controls are introduced for partisan and regional effects and the differences among types of cases.
What is the extent and impact of fluidity on the Supreme Court? To answer this question partially the court's original vote on the merits is compared with its final vote during the period Harold Burton served as a justice (1945-1958). It is found that in 88 percent of the situations the justices voted the same way at both stages. There are no significant differences between the number of vote changes in major cases and in nonmajor ones. The fluidity that occurred was more likely to affect the size of a majority that was already winning at the original vote than to transform a minority at the original vote into a majority at the final vote. The vote changes also created a more attitudinally grounded vote, for the final vote scales generate better scale correlations than the original vote scales. These differences, however, disappear when the consensus cases are omitted.
In the period from 1947 to 1976, the United States Supreme Court has denied certiorari in more than half the cases involving conflict with Supreme Court precedent or intercircuit conflict. In both instances, the denial rate has been higher in the Burger Court than in the Vinson and Warren Courts, and denial has been greater for intercircuit conflict cases than for cases in which the ruling in the lower court was in conflict with one or more Supreme Court precedents. When conflict was conceptualized as a predictor of decision and examined along with federal government as petitioning party, economic issues, and civil liberty issues, it was found to have 4 to 7 times the predictive power of the other variables combined for the Vinson and Warren Courts. For the Burger Court, the petitioning party variable was found to be a better predictor than conflict, but conflict was a much better predictor than the subject variables. Discriminant function models using the four predictor variables were able to account for up to 36.9% of the variance in the Supreme Court's certiorari decisions, almost all of which was the result of the contributions made by the conflict and party factors.
Conventional wisdom about the U.S. Supreme Court states that assignment of the majority opinion to the marginal member of the minimum winning original coalition might ensure its survival. Insofar as minimum winning original coalitions on the Warren Court are concerned (which original coalitions were identified by reference to the justices' docket books), the conventional wisdom is wrong. Although the marginal justice is substantially advantaged in opinion assignment, coalition maintenance is not thereby enhanced. Indeed, the breakup of such coalitions disproportionately occurs when the marginal justice switches his vote to the other side. Moreover, when he changes sides, he nonetheless retains the majority opinion. Assignment of the majority opinion to original coalition members other than the marginal justice did not foster the original coalition's survival either.
The designation of the majority opinion writer is one of the major prerogatives of the Chief Justiceship for influencing the formulation of judicial policy. The limited research on opinion assignment has focused almost exclusively on the ideological aspects of assignment decisions. Data sets employed have been small and noncomparable. This paper empirically examines several concerns operating in opinion assignment decision making in addition to ideology. These include the "equality" principle, distribution of "important" cases, self-assignment patterns, and judicial experience. The data base consists of the universe of over a half a century of opinion assignments made by Chief Justices Taft through Burger.
Government bureaucracies are strategic and implement Supreme Court opinions based upon the costs and benefits of alternative policy choices. Agencies develop these expectations from prevailing resource environments and bureaucracies are more likely to establish larger policy change when resources favor the Court because the costs of not changing their policies appear larger. The amount of bureaucratic policy change due to Court opinions is a function of: (1) attributes of Supreme Court opinions--specificity of Court-ordered policy change, basis of opinions, remands, and dissents; (2) agency characteristics--policy preferences, type of proceedings, and time preferences; and (3) external actors--amicus curiae, opposing litigants, Congress, and presidents. An Ordered Probit analysis tests a multivariate model of the impact of every Supreme Court opinion reversing or remanding a federal agency decision from the 1953 through 1990 terms. Agency policy change after Court opinions is influenced by the specificity of Supreme Court opinions, agency policy preferences, agency age, and amicus curiae support.
This paper offers a theory of the assignment of majority opinions in the U. S. Supreme Court. It assumes that justices are rational actors whose primary motivation in making decisions is to have the policy output of the Court approximate as closely as possible their own preferences about the policy questions the Court considers. The data were derived from all civil liberties cases decided by the Warren Court. Cumulative scaling is employed to isolate the various issue dimensions and order the justices on them. The primary hypothesis of the theory is that the opinion-assigner will assign the majority opinion either to himself or to the justice whose position is closest to his own on the issue in question. A number of subsidiary hypotheses are offered which specify the strategic conditions under which the decision rule will be followed to a greater or lesser degree. Both primary and subsidiary hypotheses are supported. Finally, a number of alternative hypotheses offered by other researchers are tested. The results indicate that where the predictions of both the theory and the alternative hypotheses are the same, they are supported; where the predictions are different, the data support the predictions of the theory and not the alternative hypotheses.
How does the U.S. Supreme Court reach decisions? Since the 1940s, scholars have focused on two distinct explanations. The legal model suggests that the rule of law (stare decisis) is the key determinant. The extralegal model posits that an array of sociological, psychological, and political factors produce judicial outcomes. To determine which model better accounted for judicial decisions, we used Supreme Court cases involving the imposition of the death penalty since 1972 and estimated and evaluated the models' success in accounting for decisional outcomes. Although both models performed quite satisfactorily, they possessed disturbing weaknesses. The legal perspective overpredicted liberal outcomes, the extralegal model conservative ones. Given these results, we tested another proposition, namely that extralegal and legal frameworks present codependent, not mutually exclusive, explanations of decision making. Based on these results, we offer an integrated model of Supreme Court decision making that contemplates a range of political and environmental forces and doctrinal constraints.
Theory: Majority opinion assignments made by the Chief Justice of the Supreme Court can be accounted for with both organizational and attitudinal models of behavior. Hypotheses: The likelihood that the Chief assigns an opinion to a justice depends upon the importance of each case, the size of the initial majority coalition, the timing of the decision, and each justice's expertise, efficiency, workload, and policy preferences. Method: A discrete choice model is used to test a multivariate model of the assignments made by Chief Justice William Rehnquist. Results: Chief Justice Rehnquist's assignments are determined by the Court's organizational needs, rather than the Chief's policy preferences.
The attitudinal model, as applied to the United States Supreme Court, posits that voting by a justice on the Court is determined by his or her policy attitudes and by the location along the policy dimension of the stimulus provided by the case. Howard (1968) maintained that there was extensive fluidity in voting between the original vote on the merits and the final vote, that such fluidity deflated the ideological voting and that, as a consequence, the final vote, used in the attitudinal model, is an unreliable indicator of judicial attitudes. We question whether there is extensive fluidity in voting on the Court and argue that the fluidity in voting that takes place usually moves in the expected ideological direction. Nevertheless, Howard's general argument that the attitudinal model does not capture the reality of Supreme Court decision-making seems to be valid. For not all fluidity votes move in the expected direction and the most frequent type, i.e. the minority-majority votes, is also driven by small-group variables.
This paper examines conformity voting on the U.S. Supreme Court from 1946 to 1975. We compare pairs of votes in which a justice switches from the minority at the original vote on the merits to the majority at the final vote (conformity voting) with pairs of votes in which a justice votes with the minority at both votes. Using PROBIT we identify eight variables associated with switching. Particularly important are case salience and the size of the majority at the original vote. © 1992, Southern Political Science Association. All rights reserved.
Judicial scholars are making increased use of data from the justices' personal papers. In the face of comments by justices questioning the reliability of this information and, perhaps, skepticism among judicial scholars about the reliability of some justices' records, it is important to explore the reliability of data drawn from their papers. To do so, we examine the conference records for the 1967 and 1968 terms of the Supreme Court. For these years, the papers of four justices, Earl Warren, William Douglas, William Brennan, and Thurgood Marshall, are available at the Library of Congress. We found that their records are substantially accurate and reliable. A logit model of conference recording error finds that mistakes are not simply random noise, but can be explained as a function of case complexity, the length of joint service with the voting justices, tentative conference positions, and Court consensus.
How important are lawyers in the decision making of the U.S. Supreme Court? Although legal expertise has long been assumed to benefit certain litigants, the frequency with which lawyers appear before the Court has not been directly measured. In this article, I argue that, quite apart from the status of different litigants, lawyers can be viewed as repeat players who affect judicial outcomes. Using data from the U.S. Supreme Court Judicial Data Base with data from the United States Reports, I propose and test a theory in which the informational needs of the Court are better met by more credible litigators. Thus, for example, a more experienced lawyer significantly raises the probability of a party's success. The findings testify to the efficacy of experienced counsel, irrespective of the parties they represent.
Brenner and Spaeth (1988) examined the docket books of justices of the United States Supreme Court and found that in 86 percent of the Warren Court's minimum winning original decision coalitions that broke up the marginal justice (i.e., the justice ideologically closest to the dissenters) defected. We attempt to explain why the marginal justice defects. Use of a difference of means test and the maxmum likelikhood estimation technique probit indicate ideological closeness and the lack of ability of the marginal justice to be the most important factors contributing to the defection of the marginal justice. Analysis of the behavior of the five justices who most often were marginal shows each of them also responded ideosyncratically to one or more identified case characteristic variables.
Examines justices as strategic actors.
United Transportation Union
- Toledo Detroit
- Shore Line V