Howard conducted an intensive quantitative review of the flow of litigation from federal district courts to three federal courts of appeals (District of Columbia, Second and Fifth Circuits) and from those three circuits to the Supreme Court. examining how appellate courts have responded to uncertainty and ambiguity in Supreme Court policy statements); Benjamin Kaplan, Do Intermediate Appellate Courts Have a Legislative Function?, 70 MASS. Eugene Wambaugh began an annual survey of Supreme Court constitutional law decisions, see Constitutional Law in AM.
Constitutional Decisions of the Supreme Court of the United States at the October Term, 1917, 1 p.m. The court decision was offensive, but it provided the basis for the development of the Supreme Court's behavioral study. Contemplating Courts, have been invaluable sources of information and insight into the theoretical development and construction of the relationship model.
She was only able to explain 5% of the variation in the sample of 1852 draft cases.
THE INTRODUCTION OF A STRATEGIC THEORY OF JUDICIAL BEHAVIOR
Swing Justices: Loss Aversion and Status Seeking
Justices may cast a vote contrary to their ideological position because they like to win (or to be perceived as "winners"), or perhaps because they are averse to losing.86 They simply prefer to be in Congress) (explaining that " Eventually, Black changed the draft statement and Stewart changed from the position he first expressed at the conference and joined Black's opinion"). 86 The phenomenon of loss aversion in the case of a riskless choice (ie a choice without uncertainty) is well documented in the psychological literature, although it has not been studied in the specific framework of legal decision making. Industrial Accident Commission,92 Sutherland wrote on the back of Stone's release in the case: "'Probably bad - but only a little baby.
I thank Chris Guthrie for suggesting loss aversion as a possible explanation for the phenomena of justices giving up the option of writing a dissent and voting in the majority even when they continue to disagree with the majority opinion. 93 Harlan Fiske Stone Papers, Library of Congress, cited in MuRPHY, supra note 56, at 52-53 (Sutherland's comment on the importance of the case also suggests another strategic motivation: preserving personal capital when it matters). Sutherland was not the only judge on the court at the time to sign an opinion with which he disagreed.
9 4 See, for example, SCHUBERT, supra note 57, at 192-210 (applying the game theory hypothesis that certain justices will attempt to be swing justices to the voting behavior of Chief Justice Hughes and Justice Roberts); Tracey E. Howard, The Myth of Swing Voting: An Analysis of Supreme Court Voting Patterns, 50 N.Y.U. A judge who is genuinely trying to maximize her genuine preferences might want to consider whether her decision would be reversed by an actor above her in the hierarchy.
105 See EPSTEIN Er AL., supra note 2, at 608 (tabulating four amendments overturning Supreme Court decisions). Brian Marks has received credit for publishing the most influential work on the subject, see Eskridge, Reneging on History, supra note 7, at 643 n.195, and for being "the first scholar to engage the courts in the separation of American politics-power games, " Segal, above, at age 29, with his unpublished article available as a working paper at Stanford's Hoover Institution in 1988 and as a completed Ph.D. For example, in the area of statutory interpretation, the court is influenced by the current preferences of legislators as opposed to preferences of those who wrote the law.110 These studies have in common the feature of delineating serial interaction between branches based on individual responses within a range of desired outcomes.
APPLYING THEORIES OF SUPREME COURT BEHAVIOR TO U.S
Empirical research on the interactions between the Court, Congress, and the President has shown that the Court responds to the preferences of the other branches of government, especially Congress. Legal scholars and political scientists are, of course, fascinated by the Supreme Court in part because of the Court's pre-eminent position. Furthermore, en banc hearing procedures, such as the certiorari process, limit the cases reviewed by the entire court to those selected by a majority of the members of the court (a higher percentage than the Supreme Court's required four of the nine).'19 This.
119 The Supreme Court, in 1941, ruled that appellate court judges had the power to convene all active circuit judges to try cases. Four years later, the Supreme Court ruled that en banc review of a trial court decision was not a matter of equity, as is usually the first appeal from a district court decision, but within the discretion of the appellate court. Id. But if the framers' intent was to limit the use of en bane review, the rule's very wording frustrates that intent.
The Fourth Circuit's En Banc Decisions I tried to test my theory on all the en banc decisions of one of the twelve circuits. The Fourth Circuit was initially one of the smaller circuit courts, with only two permanently appointed judges under the Judicial Code of 1911. By 1974, seven judges served on the Fourth Circuit, making it one of the three smallest circuits.
One group of cases, school desegregation suits, has been identified separately based on the uniqueness of its treatment. For additional discussion of the meaning of liberal and conservative in the context used here, see supra notes 10, 22 and accompanying text. I further identified the judges based on the name and party of the President who appointed them and the state in which they held office.
A Positive Theory
A Few Judges Do Not Vote Consistently with the Party of Their Appointing President but Instead Vote Strategically
Given the similarities in the Supreme Court and circuit court decision processes, I hypothesize that the same internal strategic dynamics observed in Supreme Court investigations will also play out in the appellate courts with respect to a minority of judges. Small-group theory and the strategic account inform our expectations by telling us that judges within a group may forego their political preferences in favor of other goals, such as influencing the content of the majority opinion, participating on the winning side, or standing as a decisive voter. An empirical test of the micro-level attitudinal model of Fourth Circuit en banc decisions (Hypothesis 1 model) reveals that seven Fourth Circuit justices did not vote strictly according to their policy preferences as measured by the appointing president's party: Justices Haynsworth, Boreman , Craven, Field, Hall, Hamilton, and Williams.1 58 A close examination of the voting behavior of these justices reveals a common thread that connects them: they consistently voted with the majority.
The presence of Swing Justices will result in an En Banc Court that does not vote in accordance with the Party of the Appointing President. Since the strategic internal dynamics model turns out to be correct for at least some of the judges in the en banc district court context, then the attitude model will fail to predict the court's entire decision—that is, it will fail as a macro-level model . If the court has some swing justices (as reflected in a test of hypothesis 2), then we will not be able to explain the en banc court's decisions by looking primarily at its composition, because the swing justices will vote against the party group of them to join the majority. .
To test this expectation, we look at the relationship between the composition of the court per party of the appointing president and the ideological direction of the court's (or a majority of the court's) decisions; such a study is a macro-level analysis. We seek here, as we did in hypothesis 1, to test whether there is a relationship between the dependent and independent variables and, if there is, the strength of the relationship. My null hypothesis (Ho) is that there is no interaction between the ideological orientation of the court's decision and the party of the appointing president of its members.
159 The dependent variable Ci is the direction of the court's decision, which is a binary variable equal to 0 if the Court rules in a liberal direction, 1 otherwise. I also tested another model with an independent variable that was continuous and represented the percentage of Republican appointees who participated in the court's decision. I use the composition of the court by the appointing president's (Ri) party to predict the likelihood that the court will vote in a particular ideological direction.
Hypothesis 3 predicts that the ideological direction of the court's decision- the dependent variable-is unrelated to the party of the appointing President of
CONCLUSION
169 Smaller values of 1, as reflected in the MLE column, are associated with flatter curves and a weaker response of the dependent variable to variation in the independent variable. The closer 3 is to 0, the less the independent variable explains about the probability of observing a 1 for the dependent variable. How do we decide when the explanatory value of an independent variable is so weak as to be practically irrelevant.
Here, our maximum likelihood estimate of the parameter is more than two standard deviations (SE = .0755) greater than 0, so we are 95% confident that the composition of the Supreme Court helps predict the ideological direction of a full decision. of the Fourth Circuit. But the influence of individual attitudes on judicial decision-making appears to be tainted by the presence of other judges and the Supreme Court of a minority of judges. Thus, the institutional structure of the federal courts (collegiality and hierarchy) is successful in achieving the goal of limiting or moderating the behavior of judges at the intermediate appellate level.
Therefore, many judges, researchers and practitioners who favor normative theory may challenge the relevance of my positive theory to their work. But for normative theory to be coherent, it must respond to what is actually going on, not just what judges perceive themselves to be doing, otherwise the prescription can only be persuasive to those judges who are already receptive to the idea. Taken as a whole, what are the implications of my findings for the development of normative theories.
The question of the implications of my findings for specific prescriptive theories is best left to those scholars who develop such theories. I suggest, however, that scholars who worry about the growing workload and size of federal district courts because they fear that the larger district courts will become too divided and that the Supreme Court will lose its ability to retain control over the development of national law need to reconsider the degree of their fear. My findings for the Fourth Circuit show that an internal balance is achieved within the Court of Appeals and remains even as the Court grows—a balance achieved by strategic judges who limit the power of ideologically driven judges.
