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Who Controls the Content of Supreme Court Opinions?

Author

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  • Cliff Carrubba
  • Barry Friedman
  • Andrew D. Martin
  • Georg Vanberg

Abstract

Conventional arguments identify either the median justice or the opinion author as the most influential justices in shaping the content of Supreme Court opinions. We develop a model of judicial decision making that suggests that opinions are likely to reflect the views of the median justice in the majority coalition. This result derives from two features of judicial decision making that have received little attention in previous models. The first is that in deciding a case, justices must resolve a concrete dispute, and that they may have preferences over which party wins the specific case confronting them. The second is that justices who are dissatisfied with an opinion are free to write concurrences (and dissents). We demonstrate that both features undermine the bargaining power of the Court's median and shift influence towards the coalition median. An empirical analysis of concurrence behavior provides significant support for the model.

Suggested Citation

  • Cliff Carrubba & Barry Friedman & Andrew D. Martin & Georg Vanberg, 2012. "Who Controls the Content of Supreme Court Opinions?," American Journal of Political Science, John Wiley & Sons, vol. 56(2), pages 400-412, April.
    • Handle: RePEc:wly:amposc:v:56:y:2012:i:2:p:400-412
    DOI: 10.1111/j.1540-5907.2011.00557.x
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    Cited by:

    1. Bustos, Álvaro & Tiller, Emerson H., 2021. "Authorial control of the Supreme Court: Chief Justice Roberts and the Obamacare surprise," International Review of Law and Economics, Elsevier, vol. 67(C).
    2. Margaret Oppenheimer & Helen LaVan & William Martin, 2015. "A Framework for Understanding Ethical and Efficiency Issues in Pharmaceutical Intellectual Property Litigation," Journal of Business Ethics, Springer, vol. 132(3), pages 505-524, December.
    3. Lerner, Joshua Y. & McCubbins, Mathew D. & Renberg, Kristen M., 2021. "The efficacy of measuring judicial ideal points: The mis-analogy of IRTs," International Review of Law and Economics, Elsevier, vol. 68(C).
    4. Gordon Ballingrud, 2021. "Ideology and Risk Focus: Conservatism and Opinion‐Writing In the U.S. Supreme Court," Social Science Quarterly, Southwestern Social Science Association, vol. 102(1), pages 281-300, January.
    5. Justin Fox & Georg Vanberg, 2014. "Narrow versus broad judicial decisions," Journal of Theoretical Politics, , vol. 26(3), pages 355-383, July.
    6. Charles M. Cameron & Lewis A. Kornhauser, 2017. "Rational choice attitudinalism?," European Journal of Law and Economics, Springer, vol. 43(3), pages 535-554, June.
    7. Bonica, Adam & Chilton, Adam S. & Goldin, Jacob & Rozema, Kyle & Sen, Maya, 2016. "Measuring Judicial Ideology Using Law Clerk Hiring," Working Paper Series 16-031, Harvard University, John F. Kennedy School of Government.

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