Opinion Competition and Judge Replacement on Collegial Courts

33 Pages Posted: 16 Oct 2012 Last revised: 16 May 2013

Date Written: August 15, 2012


It is common to think that replacing a judge with a new appointment nearer an ideological extreme will pull outcomes on the court in the ideological direction of the new appointment. This paper argues that this intuition is not always correct, at least for a class of close cases. The model developed here predicts that, in certain close cases, appointing a conservative (liberal) to replace a moderate may result in a loss for the court’s conservative (liberal) wing. What drives this outcome is expressive costs: judges incur a cost for signing opinions distant from their own ideal points, so that a judge nearer the swing vote can better afford the compromises required to win. The model holds implications for judicial appointment strategies and helps explain findings that have puzzled other scholars.

Keywords: courts, judicial bargaining, ideology, judgment cutpoint, expressive costs

Suggested Citation

Mathews, Jud, Opinion Competition and Judge Replacement on Collegial Courts (August 15, 2012). Illinois Program in Law, Behavior and Social Science Paper No. LBSS12-19, Available at SSRN: https://ssrn.com/abstract=1868619 or http://dx.doi.org/10.2139/ssrn.1868619

Jud Mathews (Contact Author)

Penn State Law ( email )

Lewis Katz Building
University Park, PA 16802
United States

HOME PAGE: http://https://pennstatelaw.psu.edu/faculty/mathews

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