Passing and strategic voting on the U.S. Supreme Court

Analyzing strategic aspects of judicial decisionmaking is an important element in understanding how law develops. In this article, we examine sophisticated voting on the U.S. Supreme Court by empirically modeling justices' decisions to pass when it is their turn to vote during conference discussions. We argue that, due to the opinion assignment norm, the chief justice may pass when one of the key conditions necessary for sophisticated voting-certainty about the views held by other justices and the agenda-is lacking. By passing, the chief can view his colleagues' votes in order to determine which vote will allow him to assign the majority opinion and, ultimately, forward his policy preferences. Using data from Justice Lewis F. Powell's conference notes, we show that the chief passes for this purpose, and that doing so is an effective strategy. In addition, we show that the senior associate justice in a case, who has a nontrivial chance of assigning the majority opinion, also passes for strategic reasons. As we expect, the data indicate that the remaining associates seem not to pass for strategic purposes. 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 Epstein & Knight 1998; Maltzman et al. 2000). While most research to date has focused on the U.S. Supreme Court (e.g., Caldeira et al. 1999; Epstein & Shvetsova 2002; Hansford & Damore 2000), comparative studies of law are ripe for consideration of the strategic elements of judicial decisionmaking (see, e.g., Helmke 2002, 2003; Iaryczower et al. 2002; Epstein et al. 2001). Vanberg (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 (Brace & 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 (Epstein & Knight 1998; Maltzman et al. …