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Abstract:
Some scholars argue that the author of the majority opinion exercises the most influence over the Court's opinion-writing process, and so can determine what becomes Court policy, at least within the limits of what some Court majority finds acceptable. Other students of the Court have suggested that the Court's median justice effectively dictates the content of the majority opinion: whatever policy the median justice most wants, she can get. We test these competing models with data on Supreme Court decision-making during the Burger Court (1969-1986). While we find substantial evidence for both models, the agenda control model gains greater support. This suggests that opinions on the Court on each case are driven, in general, by the interaction of three key variables: the policy preferences of the majority opinion author, the policy preferences of the median justice, and the location of the legal status quo.

U.S. Supreme Court, Agenda Control

Abstract:
The recent judicial politics literature on the U.S. Supreme Court often presumes that the justices engage in "strategic" behavior. In particular, scholars are increasingly describing justices as making choices at the early stages of the Court's decision-making process that are intended to achieve their most-preferred outcomes at the final stage; the baseline comparison is usually taken to be the justices' non-strategic, or "sincere," behavior. However, this literature has paid insufficient attention to the fundamental conceptual problems of what strategic and sincere behavior should be expected to look like; that is; in an empirical study, how could we actually tell the difference? An important complicating factor is that assumptions can be made about how much information the justices have about other justices' most-preferred policies; it turns out that these informational assumptions can have a major impact on the kinds of behavior that should be expected from strategic justices. In thes paper, we explicate the concept of "strategic behavior" under conditions of both "perfect information" and "imperfect information" for the U.S. Supreme Court. We also explicate the concepts of "sincere rationality" and "bounded rationality" on the Court and explore the implications for judicial behavior. For each of these four sets of assumptions, we discuss what kinds of judicial behavior should be empirically observed. If these theoretical expectations are not taken into account in empirical research, tests of theories of what is alleged to be "strategically rational" behavior on the Court may be muddled and potentially misleading.

Abstract:
In previous work, we proposed (Hammond, Bonneau, and Sheehan 2005) and tested (Bonneau, Hammond, Maltzman, and Wahlbeck 2007) a formal model of decision-making by the United States Supreme Court. A key assumption of this model was that for every legal case there exists a “current legal status quo” which is a key point of reference for the justices as they make decisions in each of the stages of the Court’s decision-making process. For example, regarding the final two stages involving opinionwriting and coalition formation and then the final vote, it was assumed that each justice evaluates a draft majority opinion in terms of whether it is an improvement over the current legal status quo: if the draft opinion is at least as good as the current legal status quo for the justice, the justice will support the opinion; if the draft opinion is worse than the current legal status quo for the justice, the justice will not support the opinion. However, this assumption about the role of the current legal status quo has turned out to be controversial: some students of judicial politics consider the assumption to be unwarranted or unrelated to what justices actually think about during the Court’s decision-making process. This paper builds on our previous work to further advance our argument that the legal status quo is a critical aspect of Supreme Court decision-making.

Abstract:
The Supreme Court's place at the top of a judicial hierarchy is no guarantee that the lower courts will automatically follow its decisions. This mean that compliance and implementation by lower courts is problematic, especially in light of the relative handful of cases heard by the Supreme Court compared to the many thousands of cases passing through the lower courts, almost none of which will ever be reviewed by the Supreme Court. This paper develops a formal model of lower-court interactions with the Supreme Court. A key issue, it turns out, is whether the Supreme Court wants to comply with its own previous decisions. If the Court's composition has changed or if some justices' policy preferences have changed, some Court majority may prefer to modify the Court's previous policy if some appeals court decision provides the opportunity. So if an appeals court does not follow some previous Supreme Court policy, this appeals court is not necessarily being noncompliant; a majority on the new Supreme Court might actually prefer the appeals court's new policy to the old Supreme Court policy. For this reason, understanding the conditions under which the Court itself will maintain or modify its own previous decisions is critical to understanding the issue of appeals court compliance. The results from this model help clarify this issue.