Supreme Court Strategery
Stuart Benjamin • September 17, 2012 6:48 am
An article I coauthored came out in the Journal of Legal Analysis that might be of interest, and that I’m pretty jazzed about. Here is the abstract:
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 bene?t. We consider whether attracting a broad majority coalition can placate future courts. Controlling for the size of the coalition, we ?nd that cases with ideologically narrow coalitions are more likely to be treated negatively by later courts. Speci?cally, 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 ?ndings 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.
In other words, building a broader coalition – either ideologically or numerically – is associated with fewer negative reactions. A simple example: array the Justices on an ideological spectrum from 1 to 9 (it doesn’t matter for these purposes whether the most conservative is 1 or 9). Justices 2, 3, 4, and 5 have joined a draft opinion, and Justice 1 has written a memo indicating that he would join if the opinion was changed in some specified ways (this is standard practice in the Supreme Court), and Justice 9 has written a similar memo proposing different changes that, if made, would cause him to join. The point of our data is that there is an advantage to choosing to accommodate Justice 9 over Justice 1.
I put the origin of the paper in the final footnote:
For what it is worth, the conventional wisdom among the fellow Supreme Court clerks of one of the authors was that the Justices who stopped accommodating their colleagues once their opinions had garnered ?ve votes were the strategic ones. They kept their majority opinions closer to their ideal holding by refusing to budge once they had a majority, and this seemed like the strategically sophisticated course to take. The data in this article, however, suggest that we were too hasty in our judgment. Maybe seemingly pro?igate accommodation is the most strategic policy of all.
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