Who Controls the Content of Supreme Court Opinions?

Authors


  • We would like to thank Chuck Cameron, Tom Clark, Lewis Kornhauser, Jeff Lax, and participants at workshops at Duke University, New York University, Princeton University, the University of Rochester, and the University of Texas for comments on earlier versions of this article. We would also like to thank six anonymous referees for valuable comments on earlier versions of this mansucript. Friedman's work was supported by the Filomen D’Agostino and Max E. Greenberg Research Fund at New York University School of Law. Martin's work was supported by The Center for Empirical Research in the Law at Washington University Law School. L. Rush Atkinson, Brian Burgess, and Josh Levy provided valuable research assistance. Replication data, robustness checks, and formal proofs of results can be accessed at http://www.unc.edu/~gvanberg/Research.html.

Cliff Carrubba is Associate Professor of Political Science, Emory University, 1555 Dickey Drive, Atlanta, GA 30322 (carrub@emory.edu). Barry Friedman is the Jacob D. Fuchsberg Professor of Law, New York University School of Law, 40 Washington Square, South, New York, NY 10012 (friedmab@exchange.law.nyu.edu). Andrew D. Martin is Professor of Political Science and Law, Washington University in St. Louis, Campus Box 1063, One Brookings Drive, St. Louis, MO 63130 (admartin@wustl.edu). Georg Vanberg is Professor of Political Science, University of North Carolina at Chapel Hill, Chapel Hill, NC 27599 (gvanberg@unc.edu).

Abstract

Conventional arguments identify either the median justice or the opinion author as the most influential justices in shaping the content of Supreme Court opinions. We develop a model of judicial decision making that suggests that opinions are likely to reflect the views of the median justice in the majority coalition. This result derives from two features of judicial decision making that have received little attention in previous models. The first is that in deciding a case, justices must resolve a concrete dispute, and that they may have preferences over which party wins the specific case confronting them. The second is that justices who are dissatisfied with an opinion are free to write concurrences (and dissents). We demonstrate that both features undermine the bargaining power of the Court's median and shift influence towards the coalition median. An empirical analysis of concurrence behavior provides significant support for the model.

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