Judicial Ideology and the Selection of Disputes for U.S. Supreme Court Adjudication

Abstract

In political science, the well‐known “attitudinal model” of legal decision making dictates that judges' sincere policy preferences drive legal outcomes. In contrast, the celebrated “selection hypothesis” from the law and economics literature suggests that litigants carefully consider factors affecting potential case success (including judicial ideology) and accordingly choose, in the name of efficiency, to settle or not pursue cases in which legal outcomes can be readily predicted. Thus, judges end up adjudicating a nonrandom set of cases that, in the typical situation, should not lend themselves to ideological judicial decision making. From this perspective, the influence of Supreme Court justices' ideological preferences on outcomes could be obviated by the forward‐thinking decisions of mindful litigants. We are left with two dominant theories on jurisprudential outcomes that appear to be at odds with each other. We endeavor to address this situation by incorporating litigation case sorting considerations into a basic attitudinal account of Supreme Court justice decision making in environmental cases. Our primary thesis is that the influence of judicial ideology on legal outcomes is conditioned on case sorting decisions (by both litigants and justices) that precede the justices' voting decisions on the merits. We augment our assessment of this thesis by evaluating our basic model on a subset of cases involving the Court's most formidable litigator—the federal government. We find that in both scenarios, the influence of justices' attitudes on their merits voting is indeed conditioned on case sorting. We conclude that the effect of justices' attitudes on Supreme Court policy making likely works in both direct and indirect ways in that their known ideological proclivities may lead to the strategic sorting of cases for Supreme Court adjudication.

Chevron, State Farm, and the Impact of Judicial Doctrine on Bureaucratic Policymaking

“…While few such studies directly test for both attitudinal and precedential effects on judicial outcomes, research by Black andOwens (2009, 1072) and Yates, Cann, and Boyea (2013), for example, suggest that factors other than partisan preference can influence judicial decision making. Black andOwens (2009, 1072) found that in the presence of certain legal factors, justices "sacrifice their policy goals," and that even though justices' policy preferences are strong predictors of their decisions, "law constrains them from acting on policy goals alone."…”

Avoiding Adversariness? The Effects of Gender on Litigant Decision-Making

“…Political scientists have devoted less study to “ordinary” litigant behavior (but see Yates, Cann, and Boyea 2013). The works that do exist usually focus on the behavior of prosecutors and criminal defendants (Landes 1971; Reinganum 1988), the decision to appeal cases to a higher court, and how litigant decisions might affect appellate court behavior (Baird 2007; Cross 2003; Songer, Cameron, and Segal 1995; Yates and Coggins 2009).…”

Justices ‘en Garde’: Ideological determinants of the dissolution of anti-establishment parties

“…We assume that justices’ attitudes (e.g. ideologies and goals) are crucial in explaining their decisions (Blake, 2012; Segal and Cover, 1989; Segal and Spaeth, 1993, 2002; Tate, 1981; Yates et al, 2013a). In many countries, there is no formal mechanism for reviewing the decisions of high courts, which implies that justices’ decisions are not monitored in any formal way, and that the justices are unconstrained in their decision-making (Epstein et al, 2001; Stone, 1992).…”