Standing the Test of Time: The Breadth of Majority Coalitions and the Fate of U.S. Supreme Court Precedents
Stuart Minor Benjamin
Duke University School of Law; Duke Innovation & Entrepreneurship Initiative
Bruce A. Desmarais
University of Massachusetts Amherst
September 17, 2012
The Journal of Legal Analysis, Vol. 4, No. 2, 2012
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 beneﬁt. We consider whether attracting a broad majority coalition can placate future courts. Controlling for the size of the coalition, we ﬁnd that cases with ideologically narrow coalitions are more likely to be treated negatively by later courts. Speciﬁcally, 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 ﬁndings 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.
Number of Pages in PDF File: 25
Date posted: September 18, 2012
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