Will of the Minority: Rule of Four on the United States Supreme Court

Abstract

The Rule of 4 on the U.S. Supreme Court is one of the only positive powers held by a minority coalition in our federal government (other minority powers are largely negative, such as the filibuster). In this paper we provide a formal model that explores the conditions under which we would expect the Rule of 4 to be invoked by a minority of justices on the Court. We also model the conditions under which such a vote under this rule will be successful. These models lead to explicit hypotheses about each part of the Court's agenda setting process. Using data from 1953 to 1985 we then empirically test our hypotheses. The results indicate that when the pivotal certiorari justice has preferences close to the status quo and when this pivot is ideologically close to the Court median she is more likely to vote to grant certiorari. Finally, our results indicate that such a vote can and is successful when the median justice is ideologically close to the status quo.

Keywords: supreme court, rule of 4, agenda setting, decision making

JEL Classification: K00