Bargaining and Opinion Writing on the U.S. Supreme Court

Bargaining and Opinion Writing on the U.S. Supreme Court

Tom S. Clark

One of the most widely studied phenomena in judicial politics is the process of bargaining and opinion writing at the U.S. Supreme Court. This research is often concerned with how the institutional structures of the Supreme Court give rise to different patterns of interaction among the justices. For example, how does the rule that an opinion only has precedential value if endorsed by a majority of the justices affect the way in which different justices bargain with each other? How does the requirement that only four justices must agree to hear a case shape the way justices can pursue their policy goals? Does this affect their decisions about which cases they will agree to hear? It is on these types of dynamics that scholarship on collegiality has focused most intensely.

This chapter outlines the terms of the literature as it currently stands and then suggests a few avenues for future research. I begin by outlining a basic description of the bargaining process on the Supreme Court. While I do not give each step a complete treatment, I do focus in particular on what I consider critical steps in the bargaining process. Next, I provide a critical overview of the various theories that dominate the literature; then I describe the empirical approaches that have been developed for evaluating those theories and the support for each of the various models. In the final section of this chapter, I offer my own thoughts about how the study of collegiality and bargaining on the Supreme Court can, and should, move forward.

Bargaining on the Supreme Court

The Supreme Court’s internal decision-making process is characterized by a number of interesting institutions; the goal of the research on bargaining and opinion writing is to understand how those institutions affect the types of decisions the Court makes. In this section, I briefly summarize the institutions that are most critically connected to bargaining and interactions among the justices while crafting opinions. When reviewing and evaluating the various theoretical models from the literature, this overview of the institutional features will serve to highlight what the theoretical models do and do not capture, and what abstractions may or may not distort the strategic environment in which the justices operate.

Bringing Cases to the Court

The first crucial feature of the Court is one that is often overlooked in the literature on collegiality. The Court is a passive institution; its function is to resolve disputes that have been brought to it by litigants. What is more, the Court almost uniformly requires that every other potential means of resolution be exhausted before a case can be brought to the Court. This feature—in general, a defining one of courts—sets the judiciary apart from other institutions, especially legislatures. Whereas a legislature can take up any issue it wishes—subject to its powers—a court must wait for a dispute to be brought to it.

Deciding to Decide

In 1991, H.W. Perry published a landmark book entitled Deciding to Decide. The book marked a watershed moment in the study of Supreme Court decision-making. In that book, using evidence from interviews he conducted with justices and clerks, Perry provided a thorough description of the factors and criteria by which the justices operate when deciding which cases to hear. The Supreme Court, unlike most other courts in the United States, has virtually unlimited discretion in choosing which of the cases brought to its doorstep it will hear. The lower federal courts and nearly all lower state courts have essentially mandatory jurisdiction over cases brought by litigants—they must decide the cases they are asked to hear. Indeed, even most state high courts have much less discretion over their dockets than does the U.S. Supreme Court. The Supreme Court, though, only hears so-called discretionary cases if four of the nine justices agree (this is the so-called Rule of Four). Because the specifics of the vote about whether to hear the case are not public (we only observe whether the Court hears the case or not) and the Court has no firmly-established criteria according to which it must act, Perry’s book represented an important insight into the workings of the Rule of Four.

Political scientists have examined the process of granting certiorari from a variety of perspectives. There have been theoretical treatments and empirical treatments of its origins and stability as well as of its consequences for collegiality. Most well known, perhaps, is the observation that justices may engage in “aggressive grants” and “defensive denials.” Aggressive grants occur when a justice votes to hear a case to force it on the Court’s docket in expectation of a favorable outcome (from that justice’s perspective). Importantly, this can occur even when a justice likes the decision reached by the lower court; she wants to hear the case not to reverse it but to impose the case as a Supreme Court precedent. A defensive denial occurs when a justice would otherwise prefer to hear a case but votes not to in anticipation of an adverse outcome in the case. Importantly, this can occur even when a justice does not agree with the decision below. She might otherwise prefer to hear the case and reverse it, but votes not to because she fears she will lose the case, making what was a lower court (and therefore geographically limited) precedent a national, Supreme Court precedent.

Defensive denials and aggressive grants implicate collegiality, because they are choices justices make in anticipation of the ultimate outcome from the process of bargaining. More directly, though, these decisions are made in a collegial setting—they are collective choices made by multiple judges deciding together. The Court operates in an unusual minority rule in this case, but the decision is still a collective one and involves the interdependent choices of the justices acting together. As a consequence, these types of behaviors are straightforward in a world where the justices are forward-looking.

Opinion Assignment

The next critical feature of the collegial process at the U.S. Supreme Court is the rules by which the majority opinion writer is assigned. Regularly, usually after oral arguments, the justices meet together “in conference.” In this meeting, which is closed to everyone except the justices themselves, the justices discuss cases and cast their initial votes on the disposition, though those votes are not binding commitments. The justices thus divide themselves into a majority and minority bloc (unless all the justices are in agreement) regarding the disposition of the case; that is, whether to affirm or reverse the lower court. This decision defines who wins and who loses the case. By convention (again, as with most of its internal institutions, the Supreme Court operates by unwritten rules), if the chief justice is in the initial majority, he chooses which justice will be responsible for writing the Opinion of the Court.1 If the chief justice is not in the majority disposition coalition, the most senior justice in the majority coalition gets to assign the opinion.

Bargaining Over Opinion Content

There is no reason why an opinion written by the opinion assignee must become the Opinion of the Court or even an opinion representing the majority disposition vote. Once assigned an opinion, a writer must prepare a first draft. Maltzman, Spriggs, and Wahlbeck report figures from the Burger Court indicating the initial draft of an opinion takes on average 48 days to be completed. Clearly, an opinion writer must take into account the anticipated reactions of the other justices—especially those whose support is critical for the opinion to carry the majority—when crafting the first draft of the opinion. However, this is not to say the justices can perfectly anticipate each other’s reactions; we find in the justices’ personal papers extensive records of bargaining among the justices over the content of opinions. Fortunately for scholars, this bargaining usually takes place in writing, in the form of memoranda among the justices proposing and negotiating over changes to opinions. Epstein and Knight report that in 57.4% of cases at least one such “bargaining statement” is made. The paper record of these negotiations has shed considerable light on the ways in which bargaining over opinion content has played out in past cases.

Examination of those papers reveals that the primary source of leverage a justice can exercise over an opinion writer is his or her vote; opinion writers often work hard to garner as much of their colleagues’ support (votes) as they can. In his 1968 landmark study, J. Woodford Howard examined “vote fluidity”—the rate at which justices’ dispositional votes change during the process of opinion writing.2 As opinions are drafted and amended during the negotiation process, the justices may become convinced of alternative arguments which imply a different disposition than the one for which they initially voted. This risk implies that an assigned majority opinion writer potentially may have to balance his or her interest in writing an opinion with which he or she agrees against a desire to keep a majority of the Court. Would a justice prefer to cede doctrinal ground in her opinion and etch that opinion into law by commanding a majority or instead to write an opinion she fully endorses at the risk of that view remaining a minority view? As we will see below, most (if not all) of the models of bargaining in the literature assume a justice would prefer any opinion she would write and command a majority to losing a case. However, it is not entirely clear, at least to me, why this must be. Indeed, this strikes me as a potentially interesting avenue for future research by scholars of bargaining and opinion writing.

Final Votes

The final step of the bargaining and opinion writing process is the final votes the justices cast. They cast two distinct, though related, votes. The first vote is which disposition to endorse—whether the lower court should be affirmed or reversed. The second vote is which opinion to endorse, or, more accurately, which opinions to endorse. Critically, if the Opinion of the Court is to carry the weight of law and constitute a binding, authoritative precedent, it must receive the endorsement of at least a majority of the participating justices (usually, five of the nine justices). The justices can choose from among, essentially, four different opinion strategies. If in the minority, they can write a dissenting opinion or join another justice’s dissenting opinion. This opinion states that the justices disagree with the disposition (who won) and what are the legal standards that led them to that conclusion. If in the majority, they have three options from among which they can choose. First, a justice can join the majority opinion (constituting one of the votes endorsing the opinion). In this strategy, the justice does not write anything herself but instead simply agrees with the majority opinion. Second, a justice may join the majority opinion but also write a regular concurrence (again, constituting one of the votes endorsing the majority opinion). In this case, the justice agrees with the majority opinion but wishes to write something supplemental on her own. That “something supplemental” constitutes a “concurring opinion.” Finally, the justice may write a special concurrence without joining the majority opinion (in this case, the justice is not counted as endorsing the majority opinion). In this case, the justice does not agree with the majority opinion but does agree with the disposition reached by the majority opinion. The justice writes a separate opinion to say what she thinks is the correct legal opinion. Thus, because each justice is entitled to write her own opinion, on whichever side of the disposition she finds herself, it is entirely possible to have a unanimous disposition with nine separate opinions, each with no more than one justice endorsing it. In the event where a majority opinion fails to receive the support of five or more justices, the opinion is said to be a “plurality” opinion and does not constitute binding precedent.

Just as with vote fluidity, though, there can be considerable fluidity in the status of opinions written by the justices. If an opinion written by someone other than the majority opinion assignee ultimately commands more support than the original assignee’s opinion, that alternative opinion is the Opinion of the Court. An example of this comes from Planned Parenthood v. Casey. In that case, Chief Justice Rehnquist prepared the initial majority opinion draft; in response, Justices O’Connor and Souter instead prepared their own opinion, which was ultimately supported by Justice Kennedy. They joined with Justices Stevens and Blackmun on the disposition and therefore constituted the plurality opinion for the majority. Thus, while Chief Justice Rehnquist initially had the support of seven of the nine justices after the Conference, in reaction to his draft opinion three justices decided to write their own opinion which garnered the minority’s support and led to a different disposition and considerably different doctrinal holding.

Clearly, the rules and procedures of bargaining have important implications for the process of bargaining and opinion writing. For example, if a justice places any value in the status of his or her opinion (i.e., if a majority opinion assignee values garnering five votes in support of her opinion), then we will want to know how the status of an opinion affects the ways the justices interact with each other. To this end, when scholars develop theories, they should consider how these different rules (institutions) interact with each other. How do a justice’s expectations about bargaining affect the way she will vote on the case disposition? In other words, it is important to remember that each of these steps along the way to a decision is interdependent with the other steps.

In the next section, I review some of the dominant models of bargaining on the Supreme Court. The goals in this review are, first, to highlight how these various institutional features have been incorporated into the theoretical literature and, second, to motivate the review of empirical analyses that follows.

Theories of Bargaining

How can we understand the ways these various institutional structures interact with the justices’ individual goals to explain the choices the justices make in the process of opinion writing? A variety of theoretical models have been proposed. These various approaches to bargaining on the Supreme Court come in many flavors; to ease exposition of these theories, I divide them into two categories: monopoly and influence models.3 The typology is, of course, rough but it is useful. The primary distinction between the two groups of theories is whether one particular justice strictly controls the content of an opinion (monopoly models) or instead whether multiple justices exert some influence (potentially simultaneously) over the content of an opinion (influence models). We now turn to the particular models to be evaluated.

Monopoly Models

Median Justice Model

Perhaps the most widely-known, applied, and accepted model of Supreme Court bargaining is the median justice model. This model predicts that all opinions will directly reflect the preferences of the median member of the Court, regardless of who authors the opinion or which party wins. That is, the only equilibrium opinion that will gain a majority’s support is one written at precisely the median justice’s ideal point. This model is essentially an application of the median voter theorem to the Supreme Court. The importing of the median voter theorem to the Supreme Court rests on a reasonable interpretation of the Supreme Court’s decision-making process. As noted above, in order to become the Opinion of the Court—and thereby constitute binding precedent—an opinion must attract the endorsement of a majority of the justices hearing a case. Assuming the justices have spatial preferences and vote on opinions according to their preferences, this implies that an opinion must gain the assent of the median justice, plus four justices to one side or the other.

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