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Sophisticated Voting and Gate-Keeping in the Supreme Court

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  • Caldeira, Gregory A
  • Wright, John R
  • Zorn, Christopher J W

Abstract

"Sophisticated voting" has a solid theoretical foundation, but scholars have raised serious questions about its empirical importance in real-world institutions. The U.S. Supreme Court is one institution where sophisticated voting should be common, but, paradoxically, where scholarly consensus about its existence has yet to emerge. We develop and test a formal model of sophisticated voting on agenda setting in the Supreme Court. Using data on petitions for certiorari decided in October term 1982, we show that, above and beyond the usual forces in case selection, justices engage in sophisticated voting, defined as looking forward to the decision on the merits and acting with that potential outcome in mind, and do so in a wide range of circumstances. In particular, we present strong evidence for sophisticated behavior, ranging from votes to deny a case one prefers to reverse to votes to grant cases one prefers to affirm. More importantly, sophisticated voting makes a substantial difference in the size and content of the Court's plenary agenda. Copyright 1999 by Oxford University Press.

Suggested Citation

  • Caldeira, Gregory A & Wright, John R & Zorn, Christopher J W, 1999. "Sophisticated Voting and Gate-Keeping in the Supreme Court," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 15(3), pages 549-572, October.
    • Handle: RePEc:oup:jleorg:v:15:y:1999:i:3:p:549-72
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    Cited by:

    1. Álvaro Bustos & Tonja Jacobi, 2014. "A Theory of Judicial Retirement," Documentos de Trabajo 451, Instituto de Economia. Pontificia Universidad Católica de Chile..
    2. Saul Brenner & Joseph Whitmeyer & Harold Spaeth, 2007. "The outcome-prediction strategy in cases denied certiorari by the U.S. Supreme Court," Public Choice, Springer, vol. 130(1), pages 225-237, January.
    3. Ryan J. Owens, 2010. "The Separation of Powers and Supreme Court Agenda Setting," American Journal of Political Science, John Wiley & Sons, vol. 54(2), pages 412-427, April.
    4. Arthur Dyevre & Nicolas Lampach, 2021. "Issue attention on international courts: Evidence from the European Court of Justice," The Review of International Organizations, Springer, vol. 16(4), pages 793-815, October.
    5. Tom S. Clark & Aaron B. Strauss, 2010. "The Implications of High Court Docket Control for Resource Allocation and Legal Efficiency," Journal of Theoretical Politics, , vol. 22(2), pages 247-268, April.
    6. Tom S Clark, 2016. "Scope and precedent: judicial rule-making under uncertainty," Journal of Theoretical Politics, , vol. 28(3), pages 353-384, July.
    7. Kenneth Shepsle & Barry Weingast, 2012. "Why so much stability? Majority voting, legislative institutions, and Gordon Tullock," Public Choice, Springer, vol. 152(1), pages 83-95, July.
    8. Karakas, Leyla D., 2017. "Political rents under alternative forms of judicial review," International Review of Law and Economics, Elsevier, vol. 52(C), pages 86-96.
    9. Muro, Sergio & Chehtman, Alejandro, 2020. "Law or strategic calculus? Abstention in the Argentine Supreme Court," International Review of Law and Economics, Elsevier, vol. 62(C).
    10. Bustos, Álvaro & Jacobi, Tonja, 2015. "Communicating judicial retirement," International Review of Law and Economics, Elsevier, vol. 43(C), pages 107-118.
    11. Lee Epstein & Eric A. Posner, 2016. "Supreme Court Justices' Loyalty to the President," The Journal of Legal Studies, University of Chicago Press, vol. 45(2), pages 401-436.
    12. Schoenherr, Jessica A. & Black, Ryan C., 2019. "Friends with benefits: Case significance, amicus curiae, and agenda setting on the U.S. Supreme Court," International Review of Law and Economics, Elsevier, vol. 58(C), pages 43-53.
    13. Udi Sommer, 2011. "How rational are justices on the Supreme Court of the United States? Doctrinal considerations during agenda setting," Rationality and Society, , vol. 23(4), pages 452-477, November.
    14. Mindock, Maxwell R. & Waddell, Glen R., 2019. "Vote Influence in Group Decision-Making: The Changing Role of Justices' Peers on the Supreme Court," IZA Discussion Papers 12317, Institute of Labor Economics (IZA).
    15. Lisa Baldez & Lee Epstein & Andrew D. Martin, 2006. "Does the U.S. Constitution Need an Equal Rights Amendment?," The Journal of Legal Studies, University of Chicago Press, vol. 35(1), pages 243-283, January.
    16. Harden Jeffrey J., 2012. "Improving Statistical Inference with Clustered Data," Statistics, Politics and Policy, De Gruyter, vol. 3(1), pages 1-30, January.

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