Passing and Strategic Voting on the U.S. Supreme Court

Abstract

Analyzing strategic aspects of judicial decisionmaking is an important element in understanding how law develops. In this article, we examine sophisticated voting on the U.S. Supreme Court by empirically modeling justices' decisions to pass when it is their turn to vote during conference discussions. We argue that, due to the opinion assignment norm, the chief justice may pass when one of the key conditions necessary for sophisticated voting—certainty about the views held by other justices and the agenda—is lacking. By passing, the chief can view his colleagues' votes in order to determine which vote will allow him to assign the majority opinion and, ultimately, forward his policy preferences. Using data from Justice Lewis F. Powell's conference notes, we show that the chief passes for this purpose, and that doing so is an effective strategy. In addition, we show that the senior associate justice in a case, who has a nontrivial chance of assigning the majority opinion, also passes for strategic reasons. As we expect, the data indicate that the remaining associates seem not to pass for strategic purposes.

Explaining the (Non)Occurrence of Equal Divisions on the U.S. Supreme Court

“…2. Burger was known to frequently buck the norms of the Court and assign the opinions even when his position did not command a majority (Johnson, Spriggs, & Wahlbeck, 2005;Woodward & Armstrong, 1979). 3.…”

Trying to Get What You Want

“…Our variable, Likelihood Merits Preferred, takes on values between 0 and 1, where 0 indicates that a justice always prefers the status quo and 1 indicates that a justice always prefers the likely merits outcome. We follow existing studies (e.g., Black and Owens 2012a;Johnson, Spriggs, and Wahlbeck 2005) and also include the squared value of this variable. Substantively, this approach allows us flexibility in assessing whether the effect of policy predictions might be substantial when a justice is certain or nearly certain she will dislike the merits (i.e., low values of our variable) but attenuated for justices who have more reason to believe the merits outcome might be favorable.…”

Lessons in disguise: multivariate predictive mistakes in collective choice models

“…However, the discovery of JPEs may serve as motivation for collecting decision-timing data in order to unpack the dynamics of association. An excellent example of the added leverage provided by the timing of decisions, in the context voting on the U.S. Supreme Court, is given by Johnson et al (2005).…”