Strategic Defiance and Compliance in the U.S. Courts of Appeals

Abstract

Why do lower courts treat Supreme Court precedents favorably or unfavorably? To address this question, we formulate a theoretical framework based on current principal-agent models of the judiciary. We use the framework to structure an empirical analysis of a random sample of 500 Supreme Court cases, yielding over 10,000 subsequent treatments in the U.S. Courts of Appeals. When the contemporary Supreme Court is ideologically estranged from the enacting Supreme Court, lower courts treat precedent much more harshly. Controlling for the ideological distance between the enacting and contemporary Supreme Courts, the preferences of the contemporary lower court itself are unrelated to its behavior. Hence, hierarchical control appears strong and effective. At the same time, however, a lower court's previous treatments of precedent strongly influence its later treatments. The results have important implications for understanding legal change and suggest new directions for judicial principal-agency theory.

Judicial Retirements and the Staying Power of U.S. Supreme Court Decisions

“…Benjamin and Desmarais () show that the aggregate number of negative treatments increases with the average distance between Supreme Court medians, and Spriggs and Hansford () have demonstrated that the Supreme Court is more likely to overrule a precedent the greater the ideological distance between the decision median and the contemporary median (see also Hansford & Spriggs ). Similarly, Westerland et al () show that increasing distance between the median member of the opinion coalition and the contemporary Supreme Court median significantly reduces compliance with precedents by circuit court panels.…”

“…Similarly, ideological change between the Supreme Court majority that issued a precedent and the current Supreme Court suggests that the current Court may take a more critical view of a precedent. It is precisely for this reason that scholars have argued that ideological shifts between the enacting and contemporary Supreme Court will lead lower courts to treat opinions less favorably, and a number of studies provide strong evidence for such an effect (e.g., Gruhl ; Hansford & Spriggs ; Klein ; Westerland et al ). Given that the retirement of Supreme Court justices and their replacement with new justices affects the ideological composition of the Court, retirements are therefore (indirectly) relevant for how lower courts treat precedents.…”

“…Since judges on the courts of appeals occupy the level below the Supreme Court, and are directly open to review and reversal by the Supreme Court, we focus our analysis on them . To measure the subsequent treatment of Supreme Court majority opinions in the courts of appeals, we rely on Shepard's Citations , an approach that has become standard in the literature (see, e.g., Benjamin & Desmarais ; Corley ; Hansford & Spriggs ; Westerland et al ). Shepard's is a widely used, commercial legal research company that employs attorneys who examine every published state and federal court opinion, and engage in a content analysis of every citation in those opinions.…”

“…Thus, we now have a good understanding of how the characteristics of Supreme Court opinions—including the number of concurrences, as well as the size and breadth of the majority coalition—shape subsequent lower court treatment (Benesh & Reddick ; Benjamin & Desmarais ; Black & Spriggs ; Corley ). Similarly, scholars have made significant progress in uncovering how dynamic changes in the legal environment, including the age of Supreme Court opinions, and ideological shifts between the enacting and subsequent Supreme Courts affect how lower courts treat precedents (e.g., Westerland et al ; Hansford & Spriggs ).…”

Rational Choice Attitudinalism? A Review of Epstein, Landes and Posner's <i>The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice</i>

“…Nonetheless, disagreement among justices is frequent, reflecting their private information, skill, and evidentiary thresholds. They structurally estimate their formal model on dispositional votes 13 A number of other empirical papers informally adopt notions of a strategic account so that judicial behavior emerges from the mutual interaction of rational actors, e.g., Westerland et al (2010). A larger set adopts a partial equilibrium approach in which one actor anticipates the response of another but the latter's actions do not reflect the resulting incentive effects.…”