The arguments contained within Supreme Court majority opinions determine legal policy. However, it remains unclear precisely who the most influential member is within each majority coalition. Existing research presents competing hypotheses about the most influential member on the Court, with many models predicting convergence to a single median member, while others suggest that the opinion author herself retains significant control. Despite these conflicting predictions, data to disentangle them do not exist. This project aims to address this deficiency by obtaining copies of each circulated majority opinion draft on the U.S. Supreme Court during the seventeen terms of the Burger Court. These data will supplement the Burger Court Opinion Writing Database, which contains information on all memoranda and opinion drafts that the justices circulated to their colleagues between the 1969 and 1985 terms. These data will be the basis for the creation of a new measure of accommodation on the Court. Using advances in text analysis software, and coding accommodation by matching explicit bargaining actions with changes in the content of the majority opinion drafts, this approach shows whose expressed preferences are incorporated into the opinion and provides the first empirical test to determine which members of the Court are influential in shaping the opinion content. As it will provide an unprecedented look into the opinion writing process, this project promises to improve our understanding of the collegial interactions that produce the Court's opinion. Combining these data with information on institutional factors, justice characteristics, and case facts, this research will provide insight into the development of the legal opinions that shape national policy. The new data will advance our understanding of the development of law, while carefully exploring the strategic actions by members of a collegial body constrained by its own membership, inter- and intra-branch politics, and legal considerations.
The database from this project will be made available to scholars, allowing wide scholarly participation in reconsideration of strategies of Supreme Court decisionmaking.
The overarching goal of this dissertation is to provide an empirical micro-foundation of judicial behavior to inform theories of intra-court bargaining and to improve our understanding of the Supreme Court's opinion writing process. The funding for this project was requested to collect and code novel archival data to reveal otherwise unobservable aspects of judicial decision-making. After the Supreme Court hears oral argument in a case, the justices meet in private conference to establish the dispositional majority coalition. The assigned opinion author is tasked with articulating the Court's legal rationale to justify its decision in the case and, upon doing so, (s)he circulates an initial draft of the majority opinion. The arguments made in the majority opinion are steeped in the nuance of law and have the power to affect decision-making in lower courts, to alter the reach of public policy, and to influence the private behavior of individual citizens. For an opinion to have precedential authority, at least five members of the Court must sign onto a single opinion, opening the door for active bargaining between the opinion author and other members of the Court. That is, after the justices receive a draft of the majority opinion, they may choose to attempt to persuade the opinion author to alter the content of the opinion. One significant limitation to our understanding of the mechanisms which produce the opinion of the Court has been the unavailability of a measure of accommodation. Without access to these behind-the-scenes negotiations, it hasn't been possible to ascertain either the content of the intra-Court negotiation or to determine which requests for change the opinion author elects to incorporate into the Court's majority opinion. To redress this data deficiency, the funds from this grant enabled the collection of original data that explicitly reveal the full negotiation process leading to the publication of the majority opinion. Specifically, with the able help of undergraduate research assistants, I photographed each page of every majority opinion draft during the Burger Court era (1969-1985). Using a combination of text analysis software and content analysis, these documents allowed me to create new measures of bargaining and accommodation to reveal how the majority opinion is altered throughout the negotiations with other members of the Court. In the primary investigation, I use these data to determine which members of the Court are actually influential in shaping the content of the opinion. My results suggest that while opinion authors are largely amenable to their colleagues, contrary to popular discourse, it is not the Court's "swing justice" that is principally influential, but rather that the median member of the majority coalition holds particular sway in the development of the opinion. This result confirms recent theoretical refinements to models of judicial bargaining. More importantly, I find that the success of a justice's attempts to persuade the opinion author to alter the majority opinion depends mainly on the content of the negotiation as well as the tone or frame of the request. In particular, opinion authors are easily persuaded to adopt suggestions for minor revisions to improve the clarity of the opinion and, to a lesser degree, are responsive to requests to alter the legal justification provided in the opinion. By contrast, requests to change the policy implications or to modify breadth of law settled in the Court's opinion are met with the most hostility by opinion authors and are less frequently adopted. I also find that how justices frame their requests affects the likelihood that the author revises the opinion. When a bargaining request carries either an explicit or implicit threat to the stability of the majority coalition, the opinion author becomes especially active in the negotiation process and works to appease the bargaining justice. In a related study, I consider the reversed relationship between the opinion author and the other justices on the Court, analyzing the consequences of failed or incomplete negotiation. The findings support the hypothesis that an author's decision not to accommodate her colleague increases the likelihood that the responding justice writes or signs onto a concurring opinion. My research finds that justices are more apt to author or join a separate opinion when the tone of negotiation with the majority opinion author is exceptionally hostile. That is, despite the fact that the bargaining justice threatens the stability of the majority coalition, the opinion author risks a fractured majority and refuses to appease her colleague in favor of maintaining greater control of the opinion content. My results suggest that the type of concurrence –- and its subsequent challenge to the authority of the majority opinion -- is strongly influenced by the breakdown during the intra-Court bargaining process. In addition to these studies, the data present interesting descriptive statistics both about workflow on the U.S. Supreme Court and about the bargaining and negotiation behavior of individual justices.
