The authors convincingly show that these kinds of strategic choices are quite common. In addition to relying on previous studies regarding the pursuit of policy, the authors screened the conference notes of Brennan and Powell for policy oriented remarks. Nearly half the remarks were indications of preferred policy. But clearly prohibited is policy not to hire blacks or women. Also over two-thirds of the memoranda exchanged during opinion circulation were directed toward policy.
Bargaining is common throughout the process.
The ultimate weapon in granting concessions on whether to hear a case is a dissenting opinion. Bargaining over the merits of a case is readily evident. Here is the first draft . . . I need you for a Court, and also because of your experience and special interest, I send the draft to you before circulating it. I had in mind, of course, the two concerns that you have expressed to me.