In recent years, studies of law and courts have emphasized that judges are strategic decision makers. A strategic judge is one who understands that law on the books must be translated into law in action. Put another way, strategic judges acknowledge that they cannot act independently as they attempt to establish legal policy. Thus, a strategic judge's decisions on the bench are influenced in part by the preferences or anticipated choices of other relevant decision makers. While the efficacy of legal policies articulated in decisions depends on the choices made by a panoply of implementers, judges on collegial courts must confront the importance of choices made by their colleagues on the bench. In other words, before issuing a decision a judge must gain the support of his or her colleagues in order to speak for the court.
Viewing judges as strategic actors is important because it sheds light on a judge's most important task: setting legal policy. Law develops as judges make choices in the process of deciding particular cases, and to understand legal development it is critical that we explain judges' decisions. Existing research, for instance, shows that when U.S. Supreme Court justices craft majority opinions they bargain, negotiate, and compromise in an attempt to bring legal policy as close as possible to their preferred alternatives (see Reference Epstein and KnightEpstein & Knight 1998; Reference MaltzmanMaltzman et al. 2000). While most research to date has focused on the U.S. Supreme Court (e.g., Reference CaldeiraCaldeira et al. 1999; Reference Epstein and ShvetsovaEpstein & Shvetsova 2002; Reference Hansford and DamoreHansford & Damore 2000), comparative studies of law are ripe for consideration of the strategic elements of judicial decisionmaking (see, e.g., Reference HelmkeHelmke 2002, Reference Helmke2003; Reference IaryczowerIaryczower et al. 2002; Reference EpsteinEpstein et al. 2001). Reference VanbergVanberg (2001), for example, shows that the German Federal Constitutional Court acts strategically when deciding whether to strike down legislation. In addition, state court judges in the United States act strategically in response to whether, and when, they must stand for reelection (Reference Brace and GannBrace & Hall 1997).
In this article, we explore how justices behave strategically when casting votes at conference. After the Supreme Court hears oral arguments in a case, the justices gather at conference to cast preliminary votes. They express their views and cast their votes, in order of seniority, beginning with the chief justice (CJ) and moving down to the most junior justice. Under this voting rule, the CJ is the first to cast a vote and, arguably, has the most at stake. Indeed, when the chief is in the conference majority the task of assigning an author to write the majority opinion falls to him. This prerogative helps him influence the Court's agenda by selecting an author whose opinion is close to his own preferences, or who will minimize the prospective policy loss if the chief's preferred outcome does not prevail (Reference Epstein and KnightEpstein & Knight 1998; Reference MaltzmanMaltzman et al. 2000).Footnote 1
Chief Justice Warren Burger was renowned, and even vilified in some quarters, for voting strategically during conference discussions on the Supreme Court in order to control the Court's agenda through opinion assignment. Indeed, Burger is said to have often changed votes to join the majority coalition, cast “phony votes” by voting against his preferred position, and, of particular interest to us here, declined to express a position at conference (see Reference Woodward and ArmstrongWoodward & Armstrong 1979; Reference Epstein and KnightEpstein & Knight 1998). This behavior led one critical justice to point out that, “all too damned often the Chief Justice will vote with the majority so as to assign the opinion, and then he ends up in dissent” (Reference SchwartzSchwartz 1990:14). Although many claimed that Burger voted sophisticatedly to manipulate the Court's agenda through opinion assignment, he was probably not the first chief to vote in this manner during conference.Footnote 2 As Murphy hypothesizes of CJs when they were the first to speak and the last to vote, “Thus, before he finally commits himself, he knows where each Justice stands – at least for the present – and which side will most probably win. If his own views are going to be in the minority, he can vote with the majority and retain the opinion-assigning authority” (1964:84–5).Footnote 3
This article focuses on one potential form of strategic behavior at conference—a justice's ability to pass, and therefore delay his vote until all the other justices have voted. We argue that the CJ has a unique incentive to pass that derives from the Court's opinion assignment norm.Footnote 4 Indeed, when the chief is uncertain about the final outcome in the case, he can pass in order to view his colleagues' votes. This behavior will help him determine which vote (reverse or affirm) will allow him to assign the majority opinion. While not technically a sophisticated vote, the chief may pass so he can, if necessary, vote against his most preferred alternative during conference in order to move the case outcome to a point that is closer to his preferred goals than if he had voted with the minority.
Employing a unique data set constructed from Justice Lewis F. Powell's docket sheets, we demonstrate how the chief can, if necessary, pass for the strategic purpose of moving policy closer to his preferred outcome. These data also allow us to demonstrate the impact of this behavior by determining the extent to which the chief votes with the majority and therefore ultimately assigns the opinion even when the coalition seems ideologically contrary to his preferred outcome.
Sophisticated Voting and the Supreme Court
Beginning with Reference FarquharsonFarquharson's (1969)Theory of Voting; a host of scholars have employed formal models to demonstrate the theoretical importance of sophisticated voting for understanding interdependent decisionmaking, especially as applied to collegial decisionmaking bodies such as the U.S. Congress (e.g., Reference KramerKramer 1972; Reference McKelvey and NiemiMcKelvey & Niemi 1978; Reference BanksBanks 1985; Reference DenzauDenzau et al. 1985). Sophisticated voting occurs when decision makers vote against their most preferred alternative at one stage of a decisionmaking process in order to produce outcomes at later stages that are more preferred.Footnote 5 As Calvert and Fenno put it, sophisticated voting occurs in Congress “when a legislator votes against an amendment that he or she favors in principle, in order to improve the chances for passage of the bill itself” (1994:349). Recent research provides some systematic support for sophisticated voting in Congress (Reference Jenkins and MungerJenkins & Munger 2003; Reference MartinMartin 2001; Reference VoldenVolden 1998), as well as on the Supreme Court (Reference CaldeiraCaldeira et al. 1999).Footnote 6
Existing formal models provide strong theoretical reasons for expecting decision makers to act in a sophisticated fashion when two conditions exist: (1) they possess adequate information about other relevant actors' preferences, and (2) they are clear about the agenda that will be discussed during the decisionmaking process (Reference Krehbiel and DouglasKrehbiel & Rivers 1990). The reason is intuitive. Without adequate information, decision makers cannot accurately predict the preferences of those with whom they interact or the outcomes of subsequent votes. They therefore cannot calculate which course of action will yield the highest payoff. Further, without knowledge of the agenda that will be discussed, a decision maker cannot anticipate which proposals will be offered or determine what the decision tree looks like in advance. In other words, knowledge of the agenda allows political actors to know the alternatives from which they can choose and helps them determine how the decisions of other players in the game will affect their payoffs. Thus, without an agenda set prior to the decisionmaking process, sophisticated voting is extremely difficult.
The Supreme Court at least minimally satisfies the conditions necessary for justices to engage in sophisticated behavior (Reference CaldeiraCaldeira et al. 1999). First, while the justices may not always possess complete and perfect information about their colleagues' preferences, the institutional setting of the Court provides them with ways of developing assessments about how the others are likely to behave.Footnote 7 After all, justices encounter similar issues and work with a small number of individuals, often for long periods of time (Reference CaldeiraCaldeira et al. 1999:551). Chief Justice Rehnquist explains that this helps the justices learn about their colleagues' preferences when he writes, “Each of us soon comes to know the general outlook of his eight colleagues. …” (1987:294). Consequently, justices often have enough information to develop beliefs about their colleagues' preferences.
Second, the institutional structure of the Court's decisionmaking process serves to help set the agenda of each case before the justices come to conference to cast votes on the merits (see Reference Sala and SpriggsSala & Spriggs 2004). In fact, the norm that discourages justices from deciding issues sua sponte (Reference EpsteinEpstein et al. 1996) helps ensure that the Court will not entertain arguments not presented in written briefs or at oral argument. While litigants do not entirely determine the range of choices available to the Court, this norm provides the justices with information about the likely policy alternatives that will be considered in a case (Reference Epstein and KobylkaEpstein & Kobylka 1992; Reference WahlbeckWahlbeck 1997). Indeed, Reference JohnsonJohnson (2004) demonstrates that more than 80% of all arguments found in the Court's majority opinions derive from either the litigant or amicus briefs or from the oral arguments. This means that the justices have this information prior to the conference discussion in a case.Footnote 8
In addition, several institutional features provide the justices with information that allows them to anticipate subsequent stages of the judicial process (Reference CaldeiraCaldeira et al. 1999). First, the Court's norms provide for a predictable set of decision stages before and after the conference vote in the form of open votes on certiorari, circulation of the first draft of the majority opinion, subsequent bargaining between other justices and the majority opinion author, and, finally, a vote by each justice. Second, the norm that governs opinion assignment helps the justices predict who the likely opinion assignor will be (Reference Epstein and KnightEpstein & Knight 1998). Thus, the nature of how issues are brought to the Court, combined with internal Court rules, provides the justices with a good sense for the range of alternatives available to them in a case.
Passing During Supreme Court Conference Discussions
Our general discussion of sophisticated voting raises the following question: Why would Supreme Court justices pass at conference? Indeed, if they have the ability to vote insincerely if a sincere vote will not help them reach their policy objectives, why would a justice decline to state a position? The answer, for us, is that when faced with uncertainty a justice may pass in order to enhance his or her information and to be able to cast a sophisticated vote, if necessary.Footnote 9 As the above discussion indicates, in order to vote sophisticatedly, a justice must be able to predict which outcome will garner majority support. Without the ability to develop this expectation, a justice is unable to act sophisticatedly and thus may choose to pass, thereby waiting to cast a vote until all the other justices have voted. By passing, the justice can gain important information from the votes cast by other justices.
Despite the institutional features that may allow justices to anticipate their colleague's behavior, there is reason to believe that they do not always know how their colleagues want to act in specific cases. First, each case presents a unique set of facts and legal questions. Second, justices' preferences may change over time (Reference EpsteinEpstein et al. 1998). Third, justices' preferences vary across issue areas (Reference Rohde and SpaethRohde & Spaeth 1976). Fourth, most cases tap multiple issue dimensions, which creates ambiguity about which dimension is controlling (Reference Maltzman and WahlbeckMaltzman & Wahlbeck 1996). This variation in the justices' beliefs about their colleagues' views can undermine the level of information that is a necessary prerequisite to sophisticated voting. In such a setting, a strategic justice is less able to cast a sophisticated vote.
We do not expect all justices to have the same propensity to pass on their chance to vote at conference.Footnote 10 Rather, we argue that the CJ has the greatest strategic incentive to pass because of the norm that allows him to assign the majority opinion when voting with the majority at conference. As existing accounts suggest (e.g., Reference Epstein and KnightEpstein & Knight 1998; Reference MaltzmanMaltzman et al. 2000), this norm gives the chief a motivation, not shared by the associate justices, to vote with the majority at conference.Footnote 11 Indeed, this norm gives the chief agenda-setting authority on the Court, which allows him to minimize the policy damage of an opinion that runs counter to his preferences by assigning the opinion to an ally or to himself.
In addition, the conference-voting norm on the Court stipulates that the order of voting is based on seniority, with the chief discussing and voting on a case first. This voting rule may put the chief at an informational disadvantage and make it difficult for him to take full advantage of the opinion-assignment norm. When faced with uncertainty based on this factor (or others), the chief is left with two options: either cast a sincere vote during conference, or pass and wait for the remaining justices to cast votes before voting himself.
Because casting a sincere vote may leave him out of the winning coalition, and therefore unable to assign the opinion, the chief may reserve his vote if he is unsure of which position will command a majority once all votes are cast. In essence, the chief passes in order to put himself in a position to vote with the majority and, in turn, to have greater leverage over the legal rule being crafted in the case. More specifically, the chief may pass in order to put himself into a position that will allow him to vote sophisticatedly. This leads to our general hypothesis:
Opinion Assignor Hypothesis: The chief justice is likely to pass at conference for strategic reasons, while associate justices are not likely to strategically pass.
Uncertainty and the Strategic Incentive to Pass
To recapitulate, we argue that the CJ passes when he lacks enough information about his colleagues' preferences and the case outcome to determine his best course of action. Despite the information that justices procure about their colleagues' behavior in past cases, as well as their behavior during the agenda-setting phase of the present case, their level of certainty about other justices' views may vary across cases. This lack of information gives the CJ an incentive to wait and see what his colleagues have to say about the case before casting a vote. As a result, we expect three indicators of uncertainty to influence when the chief will pass.
First, the CJ will base the decision to pass on his ability to predict which outcome is likely to receive majority support. If he anticipates that his preferred outcome is likely to prevail in the end, he has no need to pass and will therefore cast a substantively sincere vote at conference. And the chief is unlikely to pass when he anticipates that his position will not be adopted by the majority. Again, under this condition the chief has enough information to decide what to do, and he will therefore respond with a substantive vote. However, if the chief is unsure of the likely position to be adopted by the majority, he may pass to preserve the possibility of casting a sophisticated vote.
If justices are ideologically close to their colleagues, they know that the legal outcome of the case is likely to resemble their preferred outcome, especially as the ideological distance between them and the Court's median justice becomes smaller.Footnote 12 We expect a CJ in this position to cast a vote at conference and not to pass, because he believes that his preferred position is likely to be the majority's view. When the chief is ideologically distant from the median justice on the Court, he will predict that his position will most likely not be the majority view. Since the chief has a reasonable level of information about the likely case outcome in this situation, we again predict he will cast a substantive vote and not pass. However, when the chief is neither too close nor too far from the median justice, he will be less sure of which outcome will prevail and thus pass to gain information from his colleagues' votes in the case. In short, we expect the chief to be more likely to pass when he is less certain about the likely case outcome, which he can infer from his ideological distance from the median justice on the Court. This leads us to predict that the chief's ideological distance from the median justice acts in a curvilinear fashion:
Distance from Court Median Hypothesis: The chief will be more likely to pass when he is less certain about the outcome of the case and less likely to pass when he has greater information.
Second, given the rule of four, whereby a case is placed on the Court's docket if four justices vote to grant certiorari, a certiorari coalition of only four justices indicates greater uncertainty about the final outcome. More specifically, because of the instability of a minimum-winning coalition (Reference Hoekstra and JohnsonHoekstra & Johnson 2003), the level of uncertainty is greater when a coalition is smaller, and justices have more leverage over the outcome of a case (Reference RikerRiker 1962; Reference MurphyMurphy 1964; Reference MaltzmanMaltzman et al. 2000). Thus, when the certiorari coalition is minimum-winning, the CJ may be more willing to wait to hear what his colleagues have to say on the merits before voting. For this reason, we hypothesize that:
Case Outcome Uncertainty Hypothesis: The chief is more likely to pass when the coalition granting certiorari in a case is minimum-winning.
Third, the chief can predict the likely case outcome based on how his colleagues have decided similar cases in the past (Reference RehnquistRehnquist 1987; Reference MurphyMurphy 1964; Reference BaumBaum 2001). Indeed, justices' information about the preferences held by their colleagues is largely acquired through interaction in earlier cases, and scholars have demonstrated that uncertainty about case outcomes is heightened when justices' views in prior cases dealing with similar issues are not clear (Reference MaltzmanMaltzman et al. 2000). Yet while justices have numerous opportunities to observe the behavior of their colleagues in some issue areas (e.g., civil liberties), these opportunities to learn the views of others may be less plentiful in other issue areas. In other words, when the other eight justices have participated in fewer cases within an issue area, the outcome of the present case is less certain to the CJ because he has less information about how his colleagues have acted in the past. This leads us to hypothesize:
Preference Uncertainty Hypothesis: The chief is more likely to pass when the number of past cases decided by other justices on the Court in an issue area is smaller.
We also expect the chief to respond to the relative importance of a case. Given the likely impact of legally and politically important cases, he is more likely to want to assign the majority opinion, or to actually write the opinion, in these cases.Footnote 13 Past research, for example, indicates that the chief is more likely to assign opinions to ideological allies in salient cases (Reference MaltzmanMaltzman et al. 2000). In addition, the Court is more likely to hear reargument (Reference Hoekstra and JohnsonHoekstra & Johnson 2003), and justices more frequently bargain with one another before joining an opinion (Reference SpriggsSpriggs et al. 1999), in highly salient cases. A memo from Justice Powell to Chief Justice Burger illustrates this idea: “At the conference yesterday, I reserved my vote to enable me to give further thought to this important and difficult case” (Reference PowellPowell 1978:n.p.). In short, the stakes are higher in salient cases, and thus the conference vote becomes even more critical. Thus, we hypothesize:
Case Salience Hypothesis: The chief is more likely to pass in cases of greater salience.
Nonstrategic Explanations for Passing
We also recognize that justices may pass at conference for reasons unrelated to strategic voting. Some justices may pass sincerely without any intention of casting a sophisticated vote or of manipulating the outcome. Chief among the reasons for a sincere pass is that in some cases justices lack information about, or are unsure of, their views of the issues under discussion in a case. This scenario is most likely to occur in complex cases where justices may be undecided about their position. This relationship is evidenced in a memo written by Justice Sandra Day O'Connor to Chief Justice Burger in Spencer v. South Carolina Tax Commission (1985), where O'Connor wrote,
“passed” at the Conference on this case and have continued to read cases and other materials on point. My vote, which remains tentative, is in accord with yours - to reverse. Although I think the §1988 attorneys' fees provision is enforceable in state court as part and parcel of §1983 actions, I do not believe injunctive relief need be given or that plaintiffs can bypass state administrative remedies. Of course, these last two matters are not raised in this case, but they will be “lurking” in the wings (O'Connor 1985:n.p.).
Consistent with this expectation, Reference Maltzman and WahlbeckMaltzman and Wahlbeck (1996) show that justices are more likely to change their votes after the conference in complex cases. This leads to the following hypothesis:
Case Complexity Hypothesis: All justices are more likely to pass in cases of greater complexity.Footnote 14
Finally, past research often suggests that it takes time for “freshman” Supreme Court justices (i.e., those new to the bench) to acclimate to their job (e.g., Reference Brenner and HagleBrenner & Hagle 1996; Reference HowardHoward 1968). Freshmen are often said to be more likely to follow rather than lead, to exhibit less stable voting patterns, and to be less familiar with the issues being decided by the Court. As a result, one might expect that freshmen would be more likely to pass at conference.
Freshman Justice Hypothesis: Freshman justices will be more likely to pass than their more senior colleagues.
Data and Methods
We based our analysis on a random sample of 1,043 cases decided between the 1971 and 1985 October terms.Footnote 15 Specifically, we merged two random samples; in one sample, we selected all cases from seven random terms (1971, 1974, 1976, 1979, 1980, 1984, and 1985), and in the other we randomly sampled 359 cases from the remaining terms.Footnote 16 Based on these data, we could test our argument that the CJ (Warren Burger), but not the remaining associates, passed for strategic reasons. We then extended this analysis in two ways. First, we applied our argument to one other justice who may be in a position to assign the majority opinion in a case: the SAJ. Second, we conducted a preliminary replication of our results for Chief Justice Burger by analyzing the conference votes in all cases decided during the 1986 term (n=153 cases), which was Justice Rehnquist's first term as chief. In the CJ models, we compared the chief to all of the associate justices except the SAJ because the SAJ may also pass for strategic reasons. Note, however, that our results did not appreciably change if we include the SAJ in the analysis. Finally, for the SAJ model we excluded the CJ from consideration, and therefore only compared the SAJ to all other associates.
We analyzed the 1971–1986 terms because we drew our data from the Supreme Court papers of Justice Powell, whose tenure on the Court was limited to these terms.Footnote 17 Powell's conference notes provide uniquely detailed accounts of the conference discussion. While some justices, such as William Brennan, recorded only the final conference position of each justice on their docket sheets, Powell's notes indicate changes in position during the course of the conference discussion. Thus, Powell's records have evidence of passes when a justice ultimately cast a substantive vote at conference.Footnote 18 Moreover, Powell's conference record is highly reliable, as the Reference MaltzmanMaltzman et al. analysis demonstrates (2000:164).
A number of phrases in Powell's records indicate that a justice passed at conference: pass, not at rest, reserve judgment, will wait to hear what others say, and will wait until end of discussion. Using these phrases, our dependent variable captured whether a justice passes during the course of the conference discussion. We coded it as one if a justice passed and zero otherwise. In the sample of cases from 1971 to 1986, there were 246 passes in 10,578 votes (2.3 percent). Table 1 presents the frequency with which each justice passed during these terms.
Table 1. The Frequency with Which Justices Pass at Conference in a Random Sample of Cases from 1971 to 1986 Terms
Source: Conference Notes of Justice Lewis F. Powell, Washington & Lee University, Lexington, VA.
Normally, logistic regression is an appropriate modeling choice for a dichotomous dependent variable, but this technique underestimates the probability of a rare event occurring (Reference King and ZengKing & Zeng 2001a, Reference King and Zeng2001b). Specifically, the estimated coefficients in rare events are biased downward, which affects the constant term and the remaining coefficients. Reference King and ZengKing and Zeng (2001a, Reference King and Zeng2001b) developed a correction for this problem that lowers the mean square error of a model, which they call rare event logistic regression.Footnote 19 Because our dependent variable was an infrequent event, we employed this modeling strategy in conjunction with Stata 8.2 (Reference TomzTomz et al. 1999).
Independent Variables
Distance from Court Median and Distance from Court Median-Squared
We argue that the chief will be more likely to pass when he is less certain about the outcome in a case and less likely to pass when he either expects to win or lose on the merits. To measure this concept, we examined each justice's ideological compatibility with the median justice on the Court. As a measure of ideology, we used the percentage of the time the justice has voted in a liberal direction in the Spaeth value area of a case in terms prior to the one in which the case was decided (Reference SpaethSpaeth 2001a).Footnote 20 We then included two variables in our empirical model. Distance From Court Median represented the absolute value of the ideological distance between each justice and the ideology of the median justice on the Court, and Distance From Court Median-Squared was the squared value of the former variable.
By using this quadratic formulation, we could test for the curvilinear effect predicted by our hypothesis. In particular, we expected a positive coefficient on Distance From Court Median, meaning the chief is more likely to pass as he gets further from the median justice (or, put otherwise, less likely to pass when he is closer to the median). We predicted a negative coefficient for Distance From Court Median-Squared, which would indicate that the chief becomes less likely to pass when he is quite far from the median (because he expects to lose the case). Distance From Court Median ranged from 0 to 0.692, with a mean of 0.115.Footnote 21
Preference Uncertainty
To measure the justices' uncertainty regarding their colleagues' preferences in a case, we examined the mean number of cases in which the other sitting justices participated prior to the present case for each issue area. In other words, for each justice we calculated the mean number of cases in which the other justices previously participated in each issue area. The mean of this variable was 256.4, and it ranged between 6.2 and 489.4.
Outcome Uncertainty
Using Powell's docket sheets, we measured a justice's uncertainty over the outcome of a case by determining whether the coalition that placed the case on the Court's agenda was the minimum size necessary—four votes out of nine justices. Of the 1,043 cases in our sample decided during the Burger Court, 292 were placed on the agenda by a minimum-winning certiorari coalition.
Case Salience
To measure the salience of a case, we used the level of amicus curiae participation in a case on the merits (Reference GibsonGibson 1997). Given that amicus participation has dramatically increased over the terms included in this sample, we calculated term-specific z-scores to determine whether a case had more amicus filings than the average case heard during a term. This variable had a mean and standard deviation of 1.7 and 3.6, respectively.
Associate Justice
We created a dummy variable that equaled one if a justice was an associate justice. We then interacted this variable with the other strategic voting variables in our analysis, resulting in the following variables: Distance From Court Median * AJ, Distance From Court Median-Squared *AJ, Preference Uncertainty * AJ, Case Outcome Uncertainty * AJ, and Case Salience * AJ.
Case Complexity
To measure case complexity, we conducted a factor analysis of all cases decided by the Supreme Court between the 1971 and 1986 terms. Using Reference SpaethSpaeth (2001a), we counted the number of legal issues raised in the case, the number of legal provisions at issue, and the number of opinions written by justices. The factor analysis resulted in a single factor with an eigenvalue greater than one. We assigned the factor score that resulted from this analysis for each case. The average Case Complexity measure in our sample was 0.16, with a standard deviation of 0.89.
Freshman Justice
We coded any justice who had served fewer than two full years on the Court when a case was orally argued as a freshman justice (starting from the date on which the justice took the oath of office). Freshman justices cast just over 5% of the votes in our analysis.
Results
We argue that the CJ's decision to pass at conference results, in part, from his desire to influence the final outcome on the merits. Because the opinion assignment norm grants the chief the power to assign when in the majority, he has an incentive to join this coalition in order to take advantage of agenda-setting effects. But when lacking information about the other justices' views, he may be uncertain of which position will ultimately gain majority support. In such a context, the chief can pass to gain additional information from the other justices' votes. Based on the data analysis reported in Table 2, we first discuss the results for Chief Justice Burger (column 2), and then we apply our argument to the SAJ in each case (column 3). From there we examine how the remaining associate justices differ from the CJ and SAJ (Table 3). Finally, we replicate our analysis with data for Chief Justice Rehnquist (Table 4).
Table 2. Rare Events Logit Model of the Chief Justice's and Senior Associate Justices' Propensity to Pass at Conference on the U.S. Supreme Court, 1971–1985 Terms
Note:
* p≤0.05 (one-tailed test). The first five coefficients in each model show the effect of each variable for the CJ (column 2) or the SAJ (column 3) only. The coefficients for the interaction terms between the associate justice variable and each of the strategic variables show the difference in their effect on the associate justices (except for the SAJ) and the CJ. The coefficients for the nonstrategic variables show the effect for all justices.
Table 3. Testing the Hypothesis of No Influence on Associate Justices' Decision to Pass
Note:
* p≥0.20 (one-tailed test). The test of significance in this table is based on the null hypothesis that each of these variables has an influence on associate justices. We derived these coefficients and standard errors from the results reported in Table 2 (see footnotes 25, 27).
Table 4. Rare Events Logit Model of the Chief Justice's Propensity to Pass at Conference on the U.S. Supreme Court, 1986 Term
Note:
* p≤0.05 (one-tailed test). The first five coefficients in the model show the effect of each variable for Chief Justice Rehnquist only. The coefficients for the interaction terms between the associate justice variable and each of the strategic variables show the difference in their effect on the associate justices (except for the SAJ) and the CJ. The coefficients for the nonstrategic variables show the effect for all justices.
Chief Justice Burger
The coefficients for Distance From Court Median and Distance From Court Median-Squared, taken together, provide some evidence that Chief Justice Burger tended to pass when he was more uncertain about whether he would be in the majority coalition. More specifically, when Chief Justice Burger was confident he would be in the winning coalition (because he was ideologically aligned with the median justice), he passed in only 4.6% of votes.Footnote 22 As expected, this probability increased when Burger was neither too close to nor too far removed from the median. Indeed, in this setting the chief was less certain he would win the case and therefore, as expected, his rate of passing increased to 11.3%. While the negative and statistically significant coefficient on Distance From Court Median-Squared comported with our expectation statistically, it was not fully supportive of Burger being less likely to pass when he expected to be in the losing coalition. The reason is that Burger only became significantly less likely to pass after the value of this variable went beyond the observed range for him. Specifically, the model predicted that the effect of Distance From Court Median switched direction at the value of 0.295 (the maximum value for Burger is 0.311, while it is 0.695 for the remaining justices), and his probability of passing did not dip below 10% until this variable reached 0.500. Thus, while this result partially supported our argument, we cannot definitively conclude that, for Burger, this factor worked as we anticipated it would.
The coefficients for the other two measures of uncertainty provide stronger evidence for our argument. The coefficient for Preference Uncertainty indicated that the CJ was more likely to pass when he had less-clear expectations about the preferences of his colleagues. Substantively speaking, the probability that Chief Justice Burger would pass increased from 10.3% to 12.5% if the other justices had decided fewer, rather than more, past cases in the same issue area as the present case. This represents about a 21% change in the probability of the chief's passing at conference. The coefficient for Case Outcome Uncertainty indicated that when the chief had greater certainty about the outcome of the case (because the certiorari-granting coalition was not minimum-winning) he passed 11.3% of the time, while this percentage increased to 12.0% when the certiorari coalition was minimum-winning. In addition, our data provide evidence that the CJ is more likely to pass in salient cases. Our model predicted that the chief had a 10.6% chance of passing in less-salient cases, while this figure increased to 12.4% in more salient cases.Footnote 23
SAJs
While we argue that associate justices do not pass for strategic reasons because they rarely assign the majority opinion, one associate has a nontrivial chance of assigning: the most senior associate justice in a case.Footnote 24 Recall that the opinion-assignment norm indicates that if the chief votes with the minority, the most senior member of the majority will assign the opinion. The reason we expected the SAJ to pass for strategic reasons is that, if the chief votes with the minority, the SAJ is the associate justice with the greatest ex ante expectation of being able to assign the opinion. For example, during the Burger Court era the SAJ assigned 11.2% of the majority opinions. Combined, the remaining associate justices assigned in only 2.9% of the cases. Column 3 in Table 2 presents the results of our analysis comparing the SAJ to all other associates.
The results for the SAJ were somewhat similar to those for the CJ.Footnote 25 The one notable difference was Distance From Court Median and Distance From Court Median Squared; while these variables had an influence on the chief, they did not influence the SAJ's decision to pass in the way we hypothesized.Footnote 26 The SAJ did, however, respond to the other elements of uncertainty in our model. When considering the substantive effects, keep in mind that our model predicted that the CJ passes 11.4% of the time, while it predicted that the SAJ only does so in 1.3% of all conference votes. The coefficient for Preference Uncertainty indicated that when the SAJ had less-clear expectations about his colleagues' preferences, the probability of passing increased. For example, the SAJ passed in 0.6% of votes when he had greater knowledge of his colleagues' preferences and passed in 2.9% of cases when he was less clear about their preferences in a case.Footnote 27 This effect represents a substantial 383% change in the probability of the SAJ passing at conference. Case Outcome Uncertainty also demonstrated a sizable effect, as the SAJ's tendency to pass increased from 1.3% when the certiorari coalition was not minimum-winning compared to 2.0% when it was (for a 53.8% change in the likelihood of passing).
Associate Justices
We now turn to a test of our expectation that the associate justices would not pass for strategic reasons. In Table 3 we present the effect of each of the strategic variables on the associate justices' decisions to pass.Footnote 28 We calculated these effects for associate justices by adding each non-interacted coefficient (e.g., Distance From Court Median) to its interaction term (e.g., Distance From Court Median * AJ), and then determined the standard errors based on the formula in Reference FriedrichFriedrich (1982:810).Footnote 29 As argued above, we expected each of the variables representing strategic decisionmaking to be statistically insignificant for the associate justices. Again, the reason is that they will not expect, even if they have insincerely voted with the majority, to assign the opinion.Footnote 30 As Table 3 indicates, the associate justices' decisions to pass were not influenced by Distance From Court Median or Distance From Court Median-Squared.Footnote 31 This result indicates that associate justices do not pass in an attempt to manipulate an anticipated adverse ruling by the Court, unlike the CJ. Our findings, however, do not refute the possibility that associate justices pass in response to the other two measures of uncertainty or in salient cases.
Like the comparison of associate justices with the CJ, the SAJ is somewhat distinct from his more junior colleagues. The effect of Preference Uncertainty (as seen in column 3 of Table 2) for the SAJ was significantly different from that of the associate justices. As we expected, we can conclude that Distance From Court Median and Case Outcome Uncertainty do not influence the associate justices (as seen in column 4 of Table 3).
Nonstrategic Reasons for Passing
Finally, we controlled for two other factors. First, justices may pass due to indecision in complex cases. The coefficient for Case Complexity was significant, indicating that all justices are substantially more likely to pass when confronting more difficult legal issues. For example, the likelihood of Chief Justice Burger passing increased from 9.6 to 13.4% when voting in cases having more, rather than less, complexity.Footnote 32 In addition, our model predicted that associate justices pass 1.1% of the time in less-complex cases and 1.6% of the time in more complex cases. The variable for freshman justices, while positive, was not statistically distinguishable from zero.
Chief Justice Rehnquist
We also conducted a preliminary test of the generalizability of the results we obtained for Chief Justice Burger by analyzing conference votes during the 1986 term of the Court. Consistent with our expectation, Justice Rehnquist's propensity to pass increased a dramatic 940% from his time as an associate (0.5%) to his first term as chief (5.2%). Our argument is that this increase was due to the opinion assignment norm. Our data, moreover, indicate that an alternative conjecture—that his increased propensity to pass resulted from a general effect in which justices who voted earlier in the voting order passed due to informational constraints—was inaccurate.Footnote 33
As seen in Table 4, one of the three factors tapping strategic decisionmaking influenced Chief Justice Rehnquist's decision to pass. Specifically, Rehnquist was more likely to pass when he was uncertain about whether he would be in the majority coalition. When Rehnquist was quite confident that he would be in the winning coalition (because he was ideologically aligned with the median on the Court), he passed only 1.2% of the time. Likewise, when he expected to be on the losing side (because he was ideologically distant from the median justice on the Court), he only passed 2.8% of the time. However, when he was less certain about whether he would be in the majority (because he was neither too far from nor too close to the median), his rate of passing increased to 11.7%.Footnote 34 Note that these effects, unlike for Burger, were well within the range of the data for Chief Justice Rehnquist. However, the coefficients for Preference Uncertainty and Case Outcome Uncertainty indicated that they did not influence his behavior. In addition, in Table 3 (column 2) we test our hypothesis that the strategic voting variables will not influence the associate justices. As evidenced, we can conclude that each of the strategic voting variables (except for Case Salience) has no influence on their decisions to pass.
We therefore have two reasons to conclude, at least tentatively, that the strategic behavior exhibited by Justice Burger was not isolated to him. First, our results for the SAJs (Justices Douglas and Brennan) resembled the results for Chief Justice Burger. Second, while recognizing that our replication data for Chief Justice Rehnquist only cover his first term as chief, they show that he too was influenced by uncertainty. While the precise measures of uncertainty that appeared to affect Chief Justices Burger and Rehnquist do differ, the chief justices nevertheless both responded to uncertainty by becoming more willing to pass. Consequently, we have data, going beyond Burger, to demonstrate that SAJs and the chief pass at conference for strategic reasons.
The Impact of Passing at Conference
As the foregoing pages reveal, our expectations about which justices are likely to pass have largely been sustained. However, the analysis does not address the impact of passing during the conference discussion. Our theory suggests that passing occurs because the conditions that enable the chief to cast a sophisticated vote are absent. This means that, when the chief passes for strategic reasons, he is in a less than optimal situation. As a result, we do not expect the chief to always vote sophisticatedly after he passes, but only to do so under conditions that will allow him to set the agenda.
The question, then, is, when might we see the chief follow up a pass with a sophisticated vote to control the agenda? This outcome would be evident, for instance, in the assignment patterns of cases in which the chief initially passes at conference and later expresses a view after other justices have spoken. Our expectation was that when the chief takes this tack, his vote will often be sophisticated so that he can ultimately assign the opinion. The results were compelling. Of the 56 cases in which the chief passed and then voted at conference, he assigned the opinion in 52 of them (92.9%). This percentage was significantly different from the chief's assignment rate in cases when he did not pass (84.8%, p=0.05), and from cases in which he passed but did not state a position at conference (69.6%, p=0.0005).Footnote 35
Sophisticated voting would more explicitly manifest itself in the ideological direction of the chief's final vote on the merits. If Chief Justice Burger voted in a sophisticated manner, then we expected that he would be more likely to vote liberally when he passed and assigned the majority opinion than when he did not pass and assigned. The intuition was that he would join a more liberal coalition to minimize the damage from a liberal opinion. Again, the results were strong. The chief voted liberally 33.1% of the time when he did not pass and then assigned the majority opinion. This percentage increased to 52.1% when he passed and then assigned. This difference was statistically significant at p=0.0001. From these results, we can infer that Chief Justice Burger used his ability to pass at conference in an attempt to control the opinion assignment in a significant minority of cases.
At the same time, one might think that Chief Justice Burger's passes would become a self-defeating strategy as the associate justices would come to resent what they saw as Burger's efforts to control the agenda. Justice Douglas intimated that possibility when he said, “It is not for us in the minority to outwit Byron by saying ‘I reserve my vote’ and then recast it to control the assignment. That only leads to a frayed and bitter Court full of needless strains and quarrels” (Justice William O. Douglas, quoted in Reference Epstein and KnightEpstein and Knight 1998:126). Other justices, however, are somewhat limited in their ability to give voice to their disenchantment with the chief's behavior. Short of voting contrary to their sincere preferences to support a competing outcome, and thereby dislodging the chief from the majority, justices have one potential weapon to defeat the chief's strategy: they can refuse to support the majority opinion. That is, justices may concur in the result announced by the majority opinion without joining that opinion. This practice might deprive an opinion of enough support and therefore render it a plurality opinion with less precedential weight. We do not find evidence that justices employed this retaliatory scheme to punish Burger's passes. Indeed, when Burger did not pass, the mean number of separate concurrences in a case was 0.507, while this number only increased to 0.562 when he did pass (p=0.28). In short, while Burger may have used passing in a strategic manner, his colleagues did not overtly punish him for doing so.
Conclusion
Here, for the first time, we provide generalizable systematic evidence that Chief Justice Burger and Chief Justice Rehnquist, as well as the senior associates during these years (Justices Douglas and Brennan), used their ability to pass at conference in an attempt to control the opinion assignment in a significant minority of cases. While we certainly focus on a rare event, its significance should not be diminished because it happens so rarely. Indeed, passing can and does help the chief (and senior associate) as they try to move policy as close as possible to their preferred goals.
Generally, this study makes several contributions to the study of collegial decisionmaking by judges. First, it addresses an important stage of the Supreme Court's decisionmaking process about which scholars know relatively little. The conference vote is germane for at least two reasons: (1) it determines which justice will assign the majority opinion and thus has potential agenda-setting effects, and (2) it sets parameters within which the majority opinion author will write his or her draft of the Court's opinion. Existing accounts of conference voting come largely from journalistic accounts (Reference Woodward and ArmstrongWoodward & Armstrong 1979) or from writings by justices (Reference RehnquistRehnquist 1987) and former clerks (Reference LazarusLazarus 1999). In addition, the scholarly studies that touch upon conference procedures and votes mainly consist of discussions of the voting in particular cases (e.g., Reference DicksonDickson 2001; Reference SchwartzSchwartz 1990, 1993, 1996; Reference MurphyMurphy 1964; but see Reference Brenner and PalmerBrenner & Palmer 1995; Reference Danelski, Murphy and PritchettDanelski 1961).Footnote 36 Thus, by offering systematic evidence of how justices behave when they initially discuss and vote on the merits of cases, we provide valuable insights into a process largely unseen by scholars.
Second, this article investigates the important phenomenon of sophisticated voting. A sophisticated vote requires three things: a multistage voting process, adequate information about other voters' preferences, and knowledge of the agenda. When these conditions exist, we expect justices to cast sophisticated votes by making decisions at earlier stages of the judicial game based on likely outcomes at later stages. Of particular interest to us here is sophisticated insincerity, in which a justice votes against his or her preferred outcome at one decisionmaking stage in anticipation of that choice yielding a better outcome at a later stage of the game.
Because the CJ has priority in opinion assignment, and because he votes first at conference, he has a strategic incentive to pass when he is uncertain about whether he will be in the winning coalition. Since casting a sincere vote may leave him unable to assign the opinion, the chief may reserve his vote if he is unsure of which position will command a majority once all votes are cast. Passing at conference thus has strategic value because it allows the chief (or SAJ) to reorder the voting sequence such that he votes last instead of first, and to thus reap informational advantages. In essence, he passes in order to put himself in a position to vote with the majority and, in turn, to have greater leverage over the legal rule being crafted in the case. Our results indicate that passing can and does help the chief (and, to a lesser extent, the SAJ) as justices try to move policy as close as possible to their preferred goals.
We also shed light on the ongoing theoretical debate about the nature of Supreme Court decisionmaking. The attitudinal model acknowledges that Supreme Court justices act interdependently except when it comes to the final vote on the merits (Reference Segal and SpaethSegal & Spaeth 2002). However, at the final stage, when deciding whether to affirm or reverse, attitudinalists argue that justices—who are appointed for life, whose decisions cannot be reversed by a higher court, and who lack higher political ambition—vote exactly as their own beliefs and values dictate. In contrast, strategic accounts posit that every decision made by the justices, including the final votes on the merits, is ripe for strategic behavior because every choice the justices make is an interdependent one (Reference Epstein and KnightEpstein & Knight 1998; Reference Hoekstra and JohnsonHoekstra & Johnson 2003; Reference MaltzmanMaltzman et al. 2000).
More specifically, we address this theoretical debate by focusing on a stage of decisionmaking—the conference vote on the merits—where the attitudinal and strategic models' expectations diverge. Indeed, the fact that the chief (and the SAJ) passes in an attempt to reach his preferred outcomes suggests that justices do not exclusively vote based on their preferences. While this may be circumstantial rather than direct evidence, it is good evidence nonetheless. Thus, this article provides important evidence that the attitudinal model may not provide a fully accurate picture of how Supreme Court justices vote on the merits.
Finally, our findings, combined with other research that finds a link between strategic interaction and Supreme Court decisionmaking, have clear implications for decisionmaking on collegial courts beyond the United States. In particular, this study highlights the importance of institutional rules, such as voting procedures, to the work of collegial courts. Certainly our study focuses on one aspect of how the U.S. Supreme Court operates, but one can infer that policy outcomes can be affected by a judge who manipulates the institutional rules that govern a court. Rules may vary from court to court, but their impact on the resulting legal policy remains consistent.
