Sincere and strategic voting norms on multimember courts

Michigan Law Review

Volumn 97, Issue 8, 1997, Pages 2297-2380

  Caminker, Evan H ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0011835842     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290189     Document Type: Article

References (365)

1. Max Stearns calls this the study of "constitutional process." MAXWELL L. STEARNS, CONSTITUTIONAL PROCESS: A SOCIAL CHOICE ANALYSIS OF SUPREME COURT DECISION MAKING 19 (forthcoming 1999) (manuscript on file with author). Some scholars have addressed the question of whether, in a case raising two or more discrete legal issues, individual judges' votes ought to be aggregated into a collective judgment through an "issue-by-issue" or "outcome-by-outcome" headcount. Under certain scenarios, the method of aggregation will determine who prevails. See, e.g., Colloquium, Appellate Court Voting Rules, 49 VAND. L. REV. 993 (1996) (containing several articles discussing issue); Lewis A. Kornhauser & Lawrence G. Sager, The One and the Many: Adjudication in Collegial Courts, 81 CAL. L. REV. 1, 10-17 (1993) (discussing issue and citing other scholarship). Some scholars have considered the applicability of Arrow's theorem to multimember courts, evaluating the extent and significance of potential voting "cycles" over time. See, e.g., Frank E. Easterbrook, Ways of Criticizing the Court, 95 HARV. L. REV. 802 (1982); Maxwell L. Stearns, The Misguided Renaissance of Social Choice, 103 YALE L.J. 1219 (1994). Some scholars have considered the problems associated with judicial decisions in which no single majority opinion supports the disposition of the case. See, e.g., John F. Davis & William L. Reynolds, Juridical Cripples: Plurality Opinions in the Supreme Court, 1974 DUKE L.J. 59.
2. Max Stearns calls this the study of "constitutional process." MAXWELL L. STEARNS, CONSTITUTIONAL PROCESS: A SOCIAL CHOICE ANALYSIS OF SUPREME COURT DECISION MAKING 19 (forthcoming 1999) (manuscript on file with author). Some scholars have addressed the question of whether, in a case raising two or more discrete legal issues, individual judges' votes ought to be aggregated into a collective judgment through an "issue-by-issue" or "outcome-by-outcome" headcount. Under certain scenarios, the method of aggregation will determine who prevails. See, e.g., Colloquium, Appellate Court Voting Rules, 49 VAND. L. REV. 993 (1996) (containing several articles discussing issue); Lewis A. Kornhauser & Lawrence G. Sager, The One and the Many: Adjudication in Collegial Courts, 81 CAL. L. REV. 1, 10-17 (1993) (discussing issue and citing other scholarship). Some scholars have considered the applicability of Arrow's theorem to multimember courts, evaluating the extent and significance of potential voting "cycles" over time. See, e.g., Frank E. Easterbrook, Ways of Criticizing the Court, 95 HARV. L. REV. 802 (1982); Maxwell L. Stearns, The Misguided Renaissance of Social Choice, 103 YALE L.J. 1219 (1994). Some scholars have considered the problems associated with judicial decisions in which no single majority opinion supports the disposition of the case. See, e.g., John F. Davis & William L. Reynolds, Juridical Cripples: Plurality Opinions in the Supreme Court, 1974 DUKE L.J. 59.
3. Max Stearns calls this the study of "constitutional process." MAXWELL L. STEARNS, CONSTITUTIONAL PROCESS: A SOCIAL CHOICE ANALYSIS OF SUPREME COURT DECISION MAKING 19 (forthcoming 1999) (manuscript on file with author). Some scholars have addressed the question of whether, in a case raising two or more discrete legal issues, individual judges' votes ought to be aggregated into a collective judgment through an "issue-by-issue" or "outcome-by-outcome" headcount. Under certain scenarios, the method of aggregation will determine who prevails. See, e.g., Colloquium, Appellate Court Voting Rules, 49 VAND. L. REV. 993 (1996) (containing several articles discussing issue); Lewis A. Kornhauser & Lawrence G. Sager, The One and the Many: Adjudication in Collegial Courts, 81 CAL. L. REV. 1, 10-17 (1993) (discussing issue and citing other scholarship). Some scholars have considered the applicability of Arrow's theorem to multimember courts, evaluating the extent and significance of potential voting "cycles" over time. See, e.g., Frank E. Easterbrook, Ways of Criticizing the Court, 95 HARV. L. REV. 802 (1982); Maxwell L. Stearns, The Misguided Renaissance of Social Choice, 103 YALE L.J. 1219 (1994). Some scholars have considered the problems associated with judicial decisions in which no single majority opinion supports the disposition of the case. See, e.g., John F. Davis & William L. Reynolds, Juridical Cripples: Plurality Opinions in the Supreme Court, 1974 DUKE L.J. 59.
4. Max Stearns calls this the study of "constitutional process." MAXWELL L. STEARNS, CONSTITUTIONAL PROCESS: A SOCIAL CHOICE ANALYSIS OF SUPREME COURT DECISION MAKING 19 (forthcoming 1999) (manuscript on file with author). Some scholars have addressed the question of whether, in a case raising two or more discrete legal issues, individual judges' votes ought to be aggregated into a collective judgment through an "issue-by-issue" or "outcome-by-outcome" headcount. Under certain scenarios, the method of aggregation will determine who prevails. See, e.g., Colloquium, Appellate Court Voting Rules, 49 VAND. L. REV. 993 (1996) (containing several articles discussing issue); Lewis A. Kornhauser & Lawrence G. Sager, The One and the Many: Adjudication in Collegial Courts, 81 CAL. L. REV. 1, 10-17 (1993) (discussing issue and citing other scholarship). Some scholars have considered the applicability of Arrow's theorem to multimember courts, evaluating the extent and significance of potential voting "cycles" over time. See, e.g., Frank E. Easterbrook, Ways of Criticizing the Court, 95 HARV. L. REV. 802 (1982); Maxwell L. Stearns, The Misguided Renaissance of Social Choice, 103 YALE L.J. 1219 (1994). Some scholars have considered the problems associated with judicial decisions in which no single majority opinion supports the disposition of the case. See, e.g., John F. Davis & William L. Reynolds, Juridical Cripples: Plurality Opinions in the Supreme Court, 1974 DUKE L.J. 59.
5. Max Stearns calls this the study of "constitutional process." MAXWELL L. STEARNS, CONSTITUTIONAL PROCESS: A SOCIAL CHOICE ANALYSIS OF SUPREME COURT DECISION MAKING 19 (forthcoming 1999) (manuscript on file with author). Some scholars have addressed the question of whether, in a case raising two or more discrete legal issues, individual judges' votes ought to be aggregated into a collective judgment through an "issue-by-issue" or "outcome-by-outcome" headcount. Under certain scenarios, the method of aggregation will determine who prevails. See, e.g., Colloquium, Appellate Court Voting Rules, 49 VAND. L. REV. 993 (1996) (containing several articles discussing issue); Lewis A. Kornhauser & Lawrence G. Sager, The One and the Many: Adjudication in Collegial Courts, 81 CAL. L. REV. 1, 10-17 (1993) (discussing issue and citing other scholarship). Some scholars have considered the applicability of Arrow's theorem to multimember courts, evaluating the extent and significance of potential voting "cycles" over time. See, e.g., Frank E. Easterbrook, Ways of Criticizing the Court, 95 HARV. L. REV. 802 (1982); Maxwell L. Stearns, The Misguided Renaissance of Social Choice, 103 YALE L.J. 1219 (1994). Some scholars have considered the problems associated with judicial decisions in which no single majority opinion supports the disposition of the case. See, e.g., John F. Davis & William L. Reynolds, Juridical Cripples: Plurality Opinions in the Supreme Court, 1974 DUKE L.J. 59.
6. Max Stearns calls this the study of "constitutional process." MAXWELL L. STEARNS, CONSTITUTIONAL PROCESS: A SOCIAL CHOICE ANALYSIS OF SUPREME COURT DECISION MAKING 19 (forthcoming 1999) (manuscript on file with author). Some scholars have addressed the question of whether, in a case raising two or more discrete legal issues, individual judges' votes ought to be aggregated into a collective judgment through an "issue-by-issue" or "outcome-by-outcome" headcount. Under certain scenarios, the method of aggregation will determine who prevails. See, e.g., Colloquium, Appellate Court Voting Rules, 49 VAND. L. REV. 993 (1996) (containing several articles discussing issue); Lewis A. Kornhauser & Lawrence G. Sager, The One and the Many: Adjudication in Collegial Courts, 81 CAL. L. REV. 1, 10-17 (1993) (discussing issue and citing other scholarship). Some scholars have considered the applicability of Arrow's theorem to multimember courts, evaluating the extent and significance of potential voting "cycles" over time. See, e.g., Frank E. Easterbrook, Ways of Criticizing the Court, 95 HARV. L. REV. 802 (1982); Maxwell L. Stearns, The Misguided Renaissance of Social Choice, 103 YALE L.J. 1219 (1994). Some scholars have considered the problems associated with judicial decisions in which no single majority opinion supports the disposition of the case. See, e.g., John F. Davis & William L. Reynolds, Juridical Cripples: Plurality Opinions in the Supreme Court, 1974 DUKE L.J. 59.
7. See WALTER MURPHY, ELEMENTS OF JUDICIAL STRATEGY (1964) (describing a wide range of behaviors available to a Supreme Court Justice seeking to maximize his influence on public policy).
8. According to the basic "attitudinal model," the United States Supreme "Court's decisions are based on the facts of a case in light of the ideological attitudes and values of the participating justices; in other words, on the basis of the individual justice's personal policy preferences." Harold J. Spaeth, The Attitudinal Model, in CONTEMPLATING COURTS 296, 296 (Lee Epstein ed., 1995); see also Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 NW. U. L. REV. 251, 265-311 (1997) (sketching and examining the attitudinal model).
9. According to the basic "attitudinal model," the United States Supreme "Court's decisions are based on the facts of a case in light of the ideological attitudes and values of the participating justices; in other words, on the basis of the individual justice's personal policy preferences." Harold J. Spaeth, The Attitudinal Model, in CONTEMPLATING COURTS 296, 296 (Lee Epstein ed., 1995); see also Frank B. Cross, Political Science and the New Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 NW. U. L. REV. 251, 265-311 (1997) (sketching and examining the attitudinal model).
10. These goals include such things as influence, immediate and historical reputation, and leisure. See, e.g., RICHARD A. POSNER, OVERCOMING LAW 117-23 (1995) (discussing the "judicial utility function"); Richard A. Epstein, The Independence of Judges: The Uses and Limitations of Public Choice Theory, 1990 B.Y.U. L. REV. 827, 832-44.
11. These goals include such things as influence, immediate and historical reputation, and leisure. See, e.g., RICHARD A. POSNER, OVERCOMING LAW 117-23 (1995) (discussing the "judicial utility function"); Richard A. Epstein, The Independence of Judges: The Uses and Limitations of Public Choice Theory, 1990 B.Y.U. L. REV. 827, 832-44.
12. LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE at xiii (1998).
13. Recent scholarship has focused on three aspects of a judge's institutional environment. Every judge is situated in relation to other judges in a temporal sense, because she is part of an ongoing enterprise in which both predecessor and successor judges contribute to the corpus of the law. Second, judges of lower courts are situated in relation to higher courts with the power of reversal. Third, each judge and her court are situated in relation to nonjudicial actors, including other governmental entities and the general public.
14. Kornhauser & Sager, supra note 1, at 55.
15. See, e.g., Kornhauser & Sager, supra note 1, at 52 ("[I]n deference to their colleagues, appellate judges are expected to compromise or deflect their views to some extent."). The norms governing this practice are rarely explored. See Richard H. Fallon, Jr., The Supreme Court, 1996 Term - Foreword: Implementing the Constitution, 111 HARV. L. REV. 54, 59-60 (1997) ("In the literature on constitutional theory, . . . [t]he practical and institutional pressures that require compromise to achieve workable doctrine receive scant attention.").
16. See, e.g., Kornhauser & Sager, supra note 1, at 52 ("[I]n deference to their colleagues, appellate judges are expected to compromise or deflect their views to some extent."). The norms governing this practice are rarely explored. See Richard H. Fallon, Jr., The Supreme Court, 1996 Term - Foreword: Implementing the Constitution, 111 HARV. L. REV. 54, 59-60 (1997) ("In the literature on constitutional theory, . . . [t]he practical and institutional pressures that require compromise to achieve workable doctrine receive scant attention.").
17. Some scholars have offered somewhat tentative and conclusory positions. See, e.g., Frank B. Cross, The Justices of Strategy, 48 DUKE L.J. 511, 511-12 (1998) ("Judicial strategy is not much considered by legal scholars. . . . [J]udges are typically considered to be above such devices."); Kornhauser & Sager, supra note 1, at 8 n.12, 53 (observing that the "simple line between strategic and sincere behavior seems inapt to multi-judge courts," and suggesting that "[p]erhaps a judge need only strive for the best that she thinks achievable on the given court" - but only within limits, for "she is not entitled to misrepresent her views or redirect her voting outcome in order to better advance her own candidates for rationale and outcome").
18. Some scholars have offered somewhat tentative and conclusory positions. See, e.g., Frank B. Cross, The Justices of Strategy, 48 DUKE L.J. 511, 511-12 (1998) ("Judicial strategy is not much considered by legal scholars. . . . [J]udges are typically considered to be above such devices."); Kornhauser & Sager, supra note 1, at 8 n.12, 53 (observing that the "simple line between strategic and sincere behavior seems inapt to multi-judge courts," and suggesting that "[p]erhaps a judge need only strive for the best that she thinks achievable on the given court" - but only within limits, for "she is not entitled to misrepresent her views or redirect her voting outcome in order to better advance her own candidates for rationale and outcome").
19. See, e.g., POSNER, supra note 4, at 126 ("vote trading by judges is condemned"); STEARNS, supra note 1, at 152 (Justices are "expected not to trade votes or base their decisions on strategic considerations, as opposed to merits determinations"); id. at 196 (almost all forms of strategic voting represent "an indefensible method of determining" legal doctrines and outcomes); Linda R. Cohen & Matthew L. Spitzer, Solving the Chevron Puzzle, LAW & CONTEMP. PROBS., Spring 1994, at 65, 84 ("[O]pen vote trading may violate norms of appropriate behavior on the Court."); Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 YALE L.J. 31, 106 (1991) ("[U]nder prevailing ethical norms judges cannot engage in the sort of logrolling that legislators commonly employ."). But see Lynn A. Stout, Strict Scrutiny and Social Choice: An Economic Inquiry into Fundamental Rights and Suspect Classifications, 80 GEO. L.J. 1787, 1826 n.164 (1992) (suggesting that judicial logrolling might improve "the stability of appellate voting and its accuracy in measuring group preferences").
20. See, e.g., POSNER, supra note 4, at 126 ("vote trading by judges is condemned"); STEARNS, supra note 1, at 152 (Justices are "expected not to trade votes or base their decisions on strategic considerations, as opposed to merits determinations"); id. at 196 (almost all forms of strategic voting represent "an indefensible method of determining" legal doctrines and outcomes); Linda R. Cohen & Matthew L. Spitzer, Solving the Chevron Puzzle, LAW & CONTEMP. PROBS., Spring 1994, at 65, 84 ("[O]pen vote trading may violate norms of appropriate behavior on the Court."); Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 YALE L.J. 31, 106 (1991) ("[U]nder prevailing ethical norms judges cannot engage in the sort of logrolling that legislators commonly employ."). But see Lynn A. Stout, Strict Scrutiny and Social Choice: An Economic Inquiry into Fundamental Rights and Suspect Classifications, 80 GEO. L.J. 1787, 1826 n.164 (1992) (suggesting that judicial logrolling might improve "the stability of appellate voting and its accuracy in measuring group preferences").
21. See, e.g., POSNER, supra note 4, at 126 ("vote trading by judges is condemned"); STEARNS, supra note 1, at 152 (Justices are "expected not to trade votes or base their decisions on strategic considerations, as opposed to merits determinations"); id. at 196 (almost all forms of strategic voting represent "an indefensible method of determining" legal doctrines and outcomes); Linda R. Cohen & Matthew L. Spitzer, Solving the Chevron Puzzle, LAW & CONTEMP. PROBS., Spring 1994, at 65, 84 ("[O]pen vote trading may violate norms of appropriate behavior on the Court."); Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 YALE L.J. 31, 106 (1991) ("[U]nder prevailing ethical norms judges cannot engage in the sort of logrolling that legislators commonly employ."). But see Lynn A. Stout, Strict Scrutiny and Social Choice: An Economic Inquiry into Fundamental Rights and Suspect Classifications, 80 GEO. L.J. 1787, 1826 n.164 (1992) (suggesting that judicial logrolling might improve "the stability of appellate voting and its accuracy in measuring group preferences").
22. See, e.g., POSNER, supra note 4, at 126 ("vote trading by judges is condemned"); STEARNS, supra note 1, at 152 (Justices are "expected not to trade votes or base their decisions on strategic considerations, as opposed to merits determinations"); id. at 196 (almost all forms of strategic voting represent "an indefensible method of determining" legal doctrines and outcomes); Linda R. Cohen & Matthew L. Spitzer, Solving the Chevron Puzzle, LAW & CONTEMP. PROBS., Spring 1994, at 65, 84 ("[O]pen vote trading may violate norms of appropriate behavior on the Court."); Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 YALE L.J. 31, 106 (1991) ("[U]nder prevailing ethical norms judges cannot engage in the sort of logrolling that legislators commonly employ."). But see Lynn A. Stout, Strict Scrutiny and Social Choice: An Economic Inquiry into Fundamental Rights and Suspect Classifications, 80 GEO. L.J. 1787, 1826 n.164 (1992) (suggesting that judicial logrolling might improve "the stability of appellate voting and its accuracy in measuring group preferences").
23. See, e.g., POSNER, supra note 4, at 126 ("vote trading by judges is condemned"); STEARNS, supra note 1, at 152 (Justices are "expected not to trade votes or base their decisions on strategic considerations, as opposed to merits determinations"); id. at 196 (almost all forms of strategic voting represent "an indefensible method of determining" legal doctrines and outcomes); Linda R. Cohen & Matthew L. Spitzer, Solving the Chevron Puzzle, LAW & CONTEMP. PROBS., Spring 1994, at 65, 84 ("[O]pen vote trading may violate norms of appropriate behavior on the Court."); Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 YALE L.J. 31, 106 (1991) ("[U]nder prevailing ethical norms judges cannot engage in the sort of logrolling that legislators commonly employ."). But see Lynn A. Stout, Strict Scrutiny and Social Choice: An Economic Inquiry into Fundamental Rights and Suspect Classifications, 80 GEO. L.J. 1787, 1826 n.164 (1992) (suggesting that judicial logrolling might improve "the stability of appellate voting and its accuracy in measuring group preferences").
24. See POSNER, supra note 4, at 126-34 (characterizing judging as a game played by rules, with these rules acting as normative constraints on the types of materials and modes of reasoning judges may employ in rendering decisions).
25. I find it extremely significant that, in my many conversations with colleagues, their intuitions supporting an antitrading norm have reflected wildly divergent premises. With respect to each objection I identify and explore, some number of scholars thinks it captures the central conceptual difficulty with vote trading, while others think it quite wrongheaded or trivial.
26. See, e.g., POSNER, supra note 4, at 132-34 (explaining why judges desire to "play within the rules" and thus will internalize and operate within perceived normative constraints on their discretion); Ronald A. Cass, Judging: Norms and Incentives of Retrospective Decision-Making, 75 B.U. L. REV. 941, 995 (1995) ("Professional norms narrow the ambit of judicial discretion."); Cross, supra note 9, at 539-40 (discussing judicial "role orientation" and its influence on decisionmaking processes). Adjudicatory norms might also be enforced through informal sanctions imposed both by fellow judges, see Mitu Gulati & C.M.A. McCauliff, On Not Making Law, LAW & CONTEMP. PROBS., Summer 1998, at 157, 166-70 (explaining why internal social-sanctioning mechanisms are likely to be effective on multimember courts), and by the public more generally (through esteem-reducing criticism), see id. at 206 ("Norms are inherently flexible, and information can alter them. This is especially true in the case of small, closely knit groups - such as federal appellate judges - who care greatly about their reputation and the esteem in which others hold them.").
27. See, e.g., POSNER, supra note 4, at 132-34 (explaining why judges desire to "play within the rules" and thus will internalize and operate within perceived normative constraints on their discretion); Ronald A. Cass, Judging: Norms and Incentives of Retrospective Decision-Making, 75 B.U. L. REV. 941, 995 (1995) ("Professional norms narrow the ambit of judicial discretion."); Cross, supra note 9, at 539-40 (discussing judicial "role orientation" and its influence on decisionmaking processes). Adjudicatory norms might also be enforced through informal sanctions imposed both by fellow judges, see Mitu Gulati & C.M.A. McCauliff, On Not Making Law, LAW & CONTEMP. PROBS., Summer 1998, at 157, 166-70 (explaining why internal social-sanctioning mechanisms are likely to be effective on multimember courts), and by the public more generally (through esteem-reducing criticism), see id. at 206 ("Norms are inherently flexible, and information can alter them. This is especially true in the case of small, closely knit groups - such as federal appellate judges - who care greatly about their reputation and the esteem in which others hold them.").
28. See, e.g., POSNER, supra note 4, at 132-34 (explaining why judges desire to "play within the rules" and thus will internalize and operate within perceived normative constraints on their discretion); Ronald A. Cass, Judging: Norms and Incentives of Retrospective Decision-Making, 75 B.U. L. REV. 941, 995 (1995) ("Professional norms narrow the ambit of judicial discretion."); Cross, supra note 9, at 539-40 (discussing judicial "role orientation" and its influence on decisionmaking processes). Adjudicatory norms might also be enforced through informal sanctions imposed both by fellow judges, see Mitu Gulati & C.M.A. McCauliff, On Not Making Law, LAW & CONTEMP. PROBS., Summer 1998, at 157, 166-70 (explaining why internal social-sanctioning mechanisms are likely to be effective on multimember courts), and by the public more generally (through esteem-reducing criticism), see id. at 206 ("Norms are inherently flexible, and information can alter them. This is especially true in the case of small, closely knit groups - such as federal appellate judges - who care greatly about their reputation and the esteem in which others hold them.").
29. See, e.g., POSNER, supra note 4, at 132-34 (explaining why judges desire to "play within the rules" and thus will internalize and operate within perceived normative constraints on their discretion); Ronald A. Cass, Judging: Norms and Incentives of Retrospective Decision-Making, 75 B.U. L. REV. 941, 995 (1995) ("Professional norms narrow the ambit of judicial discretion."); Cross, supra note 9, at 539-40 (discussing judicial "role orientation" and its influence on decisionmaking processes). Adjudicatory norms might also be enforced through informal sanctions imposed both by fellow judges, see Mitu Gulati & C.M.A. McCauliff, On Not Making Law, LAW & CONTEMP. PROBS., Summer 1998, at 157, 166-70 (explaining why internal social-sanctioning mechanisms are likely to be effective on multimember courts), and by the public more generally (through esteem-reducing criticism), see id. at 206 ("Norms are inherently flexible, and information can alter them. This is especially true in the case of small, closely knit groups - such as federal appellate judges - who care greatly about their reputation and the esteem in which others hold them.").
30. Judges on every multimember court will confront a myriad of opportunities and incentives for engaging in strategic voting, but the propriety of their doing so may turn on nuances concerning their particular court's location and role within a differentiated and hierarchical judicial regime. For example, many view the Supreme Court as playing a smaller (or nonexistent) role in the just resolution of individual cases, and a greater role in future-oriented lawmaking, than do inferior courts. This distinction might affect the analysis in various ways.
31. See, e.g., EPSTEIN & KNIGHT, supra note 5, at 58-65 (discussing strategic bargaining opportunities arising in the consideration of petitions for writ of certiorari).
32. See supra note 4.
33. While no doubt judges frequently issue opinions consistent with their own policy preferences, under most if not all plausible jurisprudential theories judges are not empowered to issue opinions simply because of consistency with these personal preferences. Judges are supposed to vote based on their judgment about the law even if that judgment flatly conflicts with their policy preferences. This does not exclude the possibility, of course, that sometimes legal determinations properly consider issues of policy.
34. See, e.g., Lewis A. Kornhauser & Lawrence G. Sager, Unpacking the Court, 96 YALE L.J. 82, 85-86 (1986). At the core of the distinction between expressing a preference and rendering a judgment lies the proposition that some questions have "right" or "correct" answers. In this context, a "right" or "correct" answer need not be objectively true or depend upon some ultimate view of the real world; it may depend only upon intersubjective agreement over criteria for resolving disputes. Id.; see also Frederick Schauer, The Jurisprudence of Reasons, 85 MICH. L. REV. 847, 855 n.26 (1987) ("[T]he idea of a right answer can survive the nonexistence of any way of noncontroversially proving that one answer is better than all others.").
35. See, e.g., Lewis A. Kornhauser & Lawrence G. Sager, Unpacking the Court, 96 YALE L.J. 82, 85-86 (1986). At the core of the distinction between expressing a preference and rendering a judgment lies the proposition that some questions have "right" or "correct" answers. In this context, a "right" or "correct" answer need not be objectively true or depend upon some ultimate view of the real world; it may depend only upon intersubjective agreement over criteria for resolving disputes. Id.; see also Frederick Schauer, The Jurisprudence of Reasons, 85 MICH. L. REV. 847, 855 n.26 (1987) ("[T]he idea of a right answer can survive the nonexistence of any way of noncontroversially proving that one answer is better than all others.").
36. See infra section III.A.
37. I put aside factfinding because neither the Supreme Court nor most other multimember courts have significant factfinding responsibility. One exception is three-judge federal district courts. See, e.g., Michael E. Solimine, The Three-Judge District Court in Voting Rights Litigation, 30 U. MICH. J.L. REFORM 79, 93 (1996).
38. Of course, "[i]n some hard cases . . . a judge's view about the outcome of the case may be considerably more clear and more deeply held than her understanding of how an evolving doctrine should be shaped to support not just that outcome, but the correct outcome in future cases as well." Kornhauser & Sager, supra note 1, at 56. This strong intuition about outcome might influence her ranking of potential justificatory legal rules. But her choice of doctrinal rule remains constrained, in the sense that she will not embrace a justification for her intuitively favored outcome that "won't write." If necessary, she will generally abandon her preferred disposition in favor of an alternative dictated by a rule that "will write." See Cross, supra note 3, at 270 (discussing concept and providing examples).
39. Legal issues and rules are difficult to define precisely, although in practice their meaning is fairly clear. A legal issue "refers to some distinct or separable aspects of the case that can be decided in isolation from the case itself, that in part resolve the case, and that recur in 'similar' cases." Lewis A. Kornhauser, Modeling Collegial Courts II: Legal Doctrine, 8 J.L. ECON. & ORG. 441, 446 (1992) [hereinafter Kornhauser, Modeling Collegial Courts II]. By legal rule, I simply mean a "doctrinal rule" as commonly understood by legal practitioners, a rule that governs the outcome of a specified issue in many related cases. Thus an articulation in a legal precedent qualifies as a legal or doctrinal rule if it establishes a precedent for deciding future cases. While some scholars have attributed precedential significance to various aspects of a judicial decision, see, e.g., Lewis A. Kornhauser, Modeling Collegial Courts I: Path-Dependence, 12 INTL. REV. L. & ECON. 169, 173-80 (1992) (arguing courts do and should embrace result-bound over rule-bound adjudication), the Supreme Court operates on the assumption that its articulated rules, rather than merely its holdings, qualify as precedent, see, e.g., Seminole Tribe of Florida v. Florida, 517 U.S. 44, 67 (1996); Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1177 (1989). I do not intend to discuss strategic joinder of "dicta" that lacks precedential significance.
40. Legal issues and rules are difficult to define precisely, although in practice their meaning is fairly clear. A legal issue "refers to some distinct or separable aspects of the case that can be decided in isolation from the case itself, that in part resolve the case, and that recur in 'similar' cases." Lewis A. Kornhauser, Modeling Collegial Courts II: Legal Doctrine, 8 J.L. ECON. & ORG. 441, 446 (1992) [hereinafter Kornhauser, Modeling Collegial Courts II]. By legal rule, I simply mean a "doctrinal rule" as commonly understood by legal practitioners, a rule that governs the outcome of a specified issue in many related cases. Thus an articulation in a legal precedent qualifies as a legal or doctrinal rule if it establishes a precedent for deciding future cases. While some scholars have attributed precedential significance to various aspects of a judicial decision, see, e.g., Lewis A. Kornhauser, Modeling Collegial Courts I: Path-Dependence, 12 INTL. REV. L. & ECON. 169, 173-80 (1992) (arguing courts do and should embrace result-bound over rule-bound adjudication), the Supreme Court operates on the assumption that its articulated rules, rather than merely its holdings, qualify as precedent, see, e.g., Seminole Tribe of Florida v. Florida, 517 U.S. 44, 67 (1996); Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1177 (1989). I do not intend to discuss strategic joinder of "dicta" that lacks precedential significance.
41. Legal issues and rules are difficult to define precisely, although in practice their meaning is fairly clear. A legal issue "refers to some distinct or separable aspects of the case that can be decided in isolation from the case itself, that in part resolve the case, and that recur in 'similar' cases." Lewis A. Kornhauser, Modeling Collegial Courts II: Legal Doctrine, 8 J.L. ECON. & ORG. 441, 446 (1992) [hereinafter Kornhauser, Modeling Collegial Courts II]. By legal rule, I simply mean a "doctrinal rule" as commonly understood by legal practitioners, a rule that governs the outcome of a specified issue in many related cases. Thus an articulation in a legal precedent qualifies as a legal or doctrinal rule if it establishes a precedent for deciding future cases. While some scholars have attributed precedential significance to various aspects of a judicial decision, see, e.g., Lewis A. Kornhauser, Modeling Collegial Courts I: Path-Dependence, 12 INTL. REV. L. & ECON. 169, 173-80 (1992) (arguing courts do and should embrace result-bound over rule-bound adjudication), the Supreme Court operates on the assumption that its articulated rules, rather than merely its holdings, qualify as precedent, see, e.g., Seminole Tribe of Florida v. Florida, 517 U.S. 44, 67 (1996); Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1177 (1989). I do not intend to discuss strategic joinder of "dicta" that lacks precedential significance.
42. Legal issues and rules are difficult to define precisely, although in practice their meaning is fairly clear. A legal issue "refers to some distinct or separable aspects of the case that can be decided in isolation from the case itself, that in part resolve the case, and that recur in 'similar' cases." Lewis A. Kornhauser, Modeling Collegial Courts II: Legal Doctrine, 8 J.L. ECON. & ORG. 441, 446 (1992) [hereinafter Kornhauser, Modeling Collegial Courts II]. By legal rule, I simply mean a "doctrinal rule" as commonly understood by legal practitioners, a rule that governs the outcome of a specified issue in many related cases. Thus an articulation in a legal precedent qualifies as a legal or doctrinal rule if it establishes a precedent for deciding future cases. While some scholars have attributed precedential significance to various aspects of a judicial decision, see, e.g., Lewis A. Kornhauser, Modeling Collegial Courts I: Path-Dependence, 12 INTL. REV. L. & ECON. 169, 173-80 (1992) (arguing courts do and should embrace result-bound over rule-bound adjudication), the Supreme Court operates on the assumption that its articulated rules, rather than merely its holdings, qualify as precedent, see, e.g., Seminole Tribe of Florida v. Florida, 517 U.S. 44, 67 (1996); Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1177 (1989). I do not intend to discuss strategic joinder of "dicta" that lacks precedential significance.
43. See, e.g., PHILIP BOBBITT, CONSTITUTIONAL FATE 1-119 (1982); JOHN HART ELY, DEMOCRACY AND DISTRUST (1980); Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV. 1189, 1194-1209 (1987).
44. See, e.g., PHILIP BOBBITT, CONSTITUTIONAL FATE 1-119 (1982); JOHN HART ELY, DEMOCRACY AND DISTRUST (1980); Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV. 1189, 1194-1209 (1987).
45. See, e.g., PHILIP BOBBITT, CONSTITUTIONAL FATE 1-119 (1982); JOHN HART ELY, DEMOCRACY AND DISTRUST (1980); Richard H. Fallon, Jr., A Constructivist Coherence Theory of Constitutional Interpretation, 100 HARV. L. REV. 1189, 1194-1209 (1987).
46. For a more complete list of potential doctrinal forms, see Fallon, supra note 8, at 67-75; Charles Fried, Types, 14 CONST. COMM. 55 (1997) (dividing doctrines into effects, intents, and acts tests).
47. For a more complete list of potential doctrinal forms, see Fallon, supra note 8, at 67- 75; Charles Fried, Types, 14 CONST. COMM. 55 (1997) (dividing doctrines into effects, intents, and acts tests).
48. Witness the ongoing debate concerning the relative advantages of bright-line rules versus multivariate standards. See, e.g., Fallon, supra note 8, at 79-81; Scalia, supra note 22; Kathleen M. Sullivan, The Supreme Court, 1991 Term - Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22, 56-69 (1992).
49. Witness the ongoing debate concerning the relative advantages of bright-line rules versus multivariate standards. See, e.g., Fallon, supra note 8, at 79-81; Scalia, supra note 22; Kathleen M. Sullivan, The Supreme Court, 1991 Term - Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22, 56-69 (1992).
50. Witness the ongoing debate concerning the relative advantages of bright-line rules versus multivariate standards. See, e.g., Fallon, supra note 8, at 79-81; Scalia, supra note 22; Kathleen M. Sullivan, The Supreme Court, 1991 Term - Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22, 56-69 (1992).
51. For example, principles of judicial restraint such as those canvassed in Ashwander constitute implementation criteria favoring selection of a narrower over a broader rule when both resolve the issue presented. See Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). See generally CASS R. SUNSTEIN, ONE CASE AT A TIME (1999) (defending procedural and substantive "minimalism" in judicial decisionmaking).
52. For example, principles of judicial restraint such as those canvassed in Ashwander constitute implementation criteria favoring selection of a narrower over a broader rule when both resolve the issue presented. See Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). See generally CASS R. SUNSTEIN, ONE CASE AT A TIME (1999) (defending procedural and substantive "minimalism" in judicial decisionmaking).
53. See, e.g., Jean-Pierre Benoit & Lewis A. Kornhauser, Assembly-Based Preferences, Candidate-Based Procedures, and the Voting Rights Act, 68 S. CAL. L. REV. 1503, 1512-17 (1995) (defining and illustrating separable and nonseparable preferences in the context of electing candidates to a political assembly). In other words, the choice between rules A+ and A- to address Issue A in the Instant Case depends on the choice between rules B+ and B- to address Issue B in a separate case, and vice versa.
54. See, e.g., Frederick Schauer, Precedent, 39 STAN. L. REV. 571, 595-602 (1987).
55. See, e.g., Lewis A. Kornhauser, Stare Decisis, in 3 THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND LAW 509, 511 (1998); Schauer, supra note 18, at 849.
56. See, e.g., Lewis A. Kornhauser, Stare Decisis, in 3 THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND LAW 509, 511 (1998); Schauer, supra note 18, at 849.
57. If a consistency norm dictates that Justice Solo and her successor Justices must treat what she does today as presumptively binding, then she must decide not only what is best for now, but also take into account how the current decision will affect the determination of future cases that will be guided by today's precedent. Justice Solo might well decide a case today in a manner that appears suboptimal with respect to her intrinsic judgment criteria, but that will likely generate the best possible extended rule over the series of future cases. See Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 TEXAS L. REV. 1, 11-12 (1994); Schauer, supra note 28, at 589. A similar forward-looking phenomenon characterizes all rule-based decisionmaking (as compared to case-by-case balancing tests). Justice Scalia, for example, might believe that the balance of applicable factors favors the plaintiff in a particular case. But Justice Scalia prefers bright-line rules to balancing tests. See Scalia, supra note 22, at 1175. He would therefore devise a bright-line rule that is optimal in the sense that, over the projected series of cases covered by the rule, it will lead to the proper outcome in as many cases as possible - even if the plaintiff now loses in the Instant Case. See FREDERICK SCHAUER, PLAYING BY THE RULES 135 (1991) ("[A]ccepting a regime of rules necessitates tolerating some number of wrong results - results other than those that would have been reached by the direct and correct application of the substantive justifications undergirding the rule.").
58. If a consistency norm dictates that Justice Solo and her successor Justices must treat what she does today as presumptively binding, then she must decide not only what is best for now, but also take into account how the current decision will affect the determination of future cases that will be guided by today's precedent. Justice Solo might well decide a case today in a manner that appears suboptimal with respect to her intrinsic judgment criteria, but that will likely generate the best possible extended rule over the series of future cases. See Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 TEXAS L. REV. 1, 11-12 (1994); Schauer, supra note 28, at 589. A similar forward-looking phenomenon characterizes all rule-based decisionmaking (as compared to case-by-case balancing tests). Justice Scalia, for example, might believe that the balance of applicable factors favors the plaintiff in a particular case. But Justice Scalia prefers bright-line rules to balancing tests. See Scalia, supra note 22, at 1175. He would therefore devise a bright-line rule that is optimal in the sense that, over the projected series of cases covered by the rule, it will lead to the proper outcome in as many cases as possible - even if the plaintiff now loses in the Instant Case. See FREDERICK SCHAUER, PLAYING BY THE RULES 135 (1991) ("[A]ccepting a regime of rules necessitates tolerating some number of wrong results - results other than those that would have been reached by the direct and correct application of the substantive justifications undergirding the rule.").
59. If a consistency norm dictates that Justice Solo and her successor Justices must treat what she does today as presumptively binding, then she must decide not only what is best for now, but also take into account how the current decision will affect the determination of future cases that will be guided by today's precedent. Justice Solo might well decide a case today in a manner that appears suboptimal with respect to her intrinsic judgment criteria, but that will likely generate the best possible extended rule over the series of future cases. See Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 TEXAS L. REV. 1, 11-12 (1994); Schauer, supra note 28, at 589. A similar forward-looking phenomenon characterizes all rule-based decisionmaking (as compared to case-by-case balancing tests). Justice Scalia, for example, might believe that the balance of applicable factors favors the plaintiff in a particular case. But Justice Scalia prefers bright-line rules to balancing tests. See Scalia, supra note 22, at 1175. He would therefore devise a bright-line rule that is optimal in the sense that, over the projected series of cases covered by the rule, it will lead to the proper outcome in as many cases as possible -even if the plaintiff now loses in the Instant Case. See FREDERICK SCHAUER, PLAYING BY THE RULES 135 (1991) ("[A]ccepting a regime of rules necessitates tolerating some number of wrong results - results other than those that would have been reached by the direct and correct application of the substantive justifications undergirding the rule.").
60. If a consistency norm dictates that Justice Solo and her successor Justices must treat what she does today as presumptively binding, then she must decide not only what is best for now, but also take into account how the current decision will affect the determination of future cases that will be guided by today's precedent. Justice Solo might well decide a case today in a manner that appears suboptimal with respect to her intrinsic judgment criteria, but that will likely generate the best possible extended rule over the series of future cases. See Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 TEXAS L. REV. 1, 11-12 (1994); Schauer, supra note 28, at 589. A similar forward-looking phenomenon characterizes all rule-based decisionmaking (as compared to case-by-case balancing tests). Justice Scalia, for example, might believe that the balance of applicable factors favors the plaintiff in a particular case. But Justice Scalia prefers bright-line rules to balancing tests. See Scalia, supra note 22, at 1175. He would therefore devise a bright-line rule that is optimal in the sense that, over the projected series of cases covered by the rule, it will lead to the proper outcome in as many cases as possible - even if the plaintiff now loses in the Instant Case. See FREDERICK SCHAUER, PLAYING BY THE RULES 135 (1991) ("[A]ccepting a regime of rules necessitates tolerating some number of wrong results - results other than those that would have been reached by the direct and correct application of the substantive justifications undergirding the rule.").
61. On one hand, courts have narrowed the scope of the exclusionary rule by recognizing various exceptions. See, e.g., United States v. Leon, 468 U.S. 897 (1984) (limited "good faith" exception); United States v. Havens, 446 U.S. 620 (1980) (impeachment exception). On the other hand, where the remedy of exclusion clearly applies, some suggest that "[j]udges do not like excluding bloody knives, so they distort doctrine, claiming the Fourth Amendment was not really violated." Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 799 (1994).
62. On one hand, courts have narrowed the scope of the exclusionary rule by recognizing various exceptions. See, e.g., United States v. Leon, 468 U.S. 897 (1984) (limited "good faith" exception); United States v. Havens, 446 U.S. 620 (1980) (impeachment exception). On the other hand, where the remedy of exclusion clearly applies, some suggest that "[j]udges do not like excluding bloody knives, so they distort doctrine, claiming the Fourth Amendment was not really violated." Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 799 (1994).
63. On one hand, courts have narrowed the scope of the exclusionary rule by recognizing various exceptions. See, e.g., United States v. Leon, 468 U.S. 897 (1984) (limited "good faith" exception); United States v. Havens, 446 U.S. 620 (1980) (impeachment exception). On the other hand, where the remedy of exclusion clearly applies, some suggest that "[j]udges do not like excluding bloody knives, so they distort doctrine, claiming the Fourth Amendment was not really violated." Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 799 (1994).
64. For instance, a judge may favor regulation in a particular context if and only if another area is left effectively unregulated. See, e.g., Lee C. Bollinger, Jr., Freedom of the Press and Public Access: Toward a Theory of Partial Regulation of the Mass Media, 75 MICH. L. REV. 1, 26-37, 36 (1976) (arguing that the Court should uphold regulations designed to ensure access to the media, such as the "fairness doctrine," only when imposed on either the broadcast or print media but not on both, in order to balance "two distinct constitutional values"). For various examples drawn from federalism doctrine, see Evan H. Caminker, Context and Complementarity Within Federalism Doctrine, 22 HARV. J.L. & PUB. POLY. 161 (1998). For an example concerning separation of powers doctrine, see Peter B. McCutchen, Mistakes, Precedent, and the Rise of the Administrative State: Toward a Constitutional Theory of the Second Best, 80 CORNELL L. REV. 1, 23-40 (1994) (arguing that the Court should have upheld rather than invalidated the one-House legislative veto, to restore a proper overall balance of power previously skewed by earlier Courts' erroneous decisions affirming unduly broad delegations of power to the executive branch). For an intriguing discussion of yet another possible relational criterion, one running counter to the consistency norm, see Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, 90 COLUM. L. REV. 2121, 2172-74 (1990) (arguing that certain democratic values might be served by having the answer to some intractable legal/moral issues cycle over time, such that the law reflects the principles espoused by various groups at least some of the time).
65. For instance, a judge may favor regulation in a particular context if and only if another area is left effectively unregulated. See, e.g., Lee C. Bollinger, Jr., Freedom of the Press and Public Access: Toward a Theory of Partial Regulation of the Mass Media, 75 MICH. L. REV. 1, 26-37, 36 (1976) (arguing that the Court should uphold regulations designed to ensure access to the media, such as the "fairness doctrine," only when imposed on either the broadcast or print media but not on both, in order to balance "two distinct constitutional values"). For various examples drawn from federalism doctrine, see Evan H. Caminker, Context and Complementarity Within Federalism Doctrine, 22 HARV. J.L. & PUB. POLY. 161 (1998). For an example concerning separation of powers doctrine, see Peter B. McCutchen, Mistakes, Precedent, and the Rise of the Administrative State: Toward a Constitutional Theory of the Second Best, 80 CORNELL L. REV. 1, 23-40 (1994) (arguing that the Court should have upheld rather than invalidated the one-House legislative veto, to restore a proper overall balance of power previously skewed by earlier Courts' erroneous decisions affirming unduly broad delegations of power to the executive branch). For an intriguing discussion of yet another possible relational criterion, one running counter to the consistency norm, see Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, 90 COLUM. L. REV. 2121, 2172-74 (1990) (arguing that certain democratic values might be served by having the answer to some intractable legal/moral issues cycle over time, such that the law reflects the principles espoused by various groups at least some of the time).
66. For instance, a judge may favor regulation in a particular context if and only if another area is left effectively unregulated. See, e.g., Lee C. Bollinger, Jr., Freedom of the Press and Public Access: Toward a Theory of Partial Regulation of the Mass Media, 75 MICH. L. REV. 1, 26-37, 36 (1976) (arguing that the Court should uphold regulations designed to ensure access to the media, such as the "fairness doctrine," only when imposed on either the broadcast or print media but not on both, in order to balance "two distinct constitutional values"). For various examples drawn from federalism doctrine, see Evan H. Caminker, Context and Complementarity Within Federalism Doctrine, 22 HARV. J.L. & PUB. POLY. 161 (1998). For an example concerning separation of powers doctrine, see Peter B. McCutchen, Mistakes, Precedent, and the Rise of the Administrative State: Toward a Constitutional Theory of the Second Best, 80 CORNELL L. REV. 1, 23-40 (1994) (arguing that the Court should have upheld rather than invalidated the one-House legislative veto, to restore a proper overall balance of power previously skewed by earlier Courts' erroneous decisions affirming unduly broad delegations of power to the executive branch). For an intriguing discussion of yet another possible relational criterion, one running counter to the consistency norm, see Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, 90 COLUM. L. REV. 2121, 2172-74 (1990) (arguing that certain democratic values might be served by having the answer to some intractable legal/moral issues cycle over time, such that the law reflects the principles espoused by various groups at least some of the time).
67. For instance, a judge may favor regulation in a particular context if and only if another area is left effectively unregulated. See, e.g., Lee C. Bollinger, Jr., Freedom of the Press and Public Access: Toward a Theory of Partial Regulation of the Mass Media, 75 MICH. L. REV. 1, 26-37, 36 (1976) (arguing that the Court should uphold regulations designed to ensure access to the media, such as the "fairness doctrine," only when imposed on either the broadcast or print media but not on both, in order to balance "two distinct constitutional values"). For various examples drawn from federalism doctrine, see Evan H. Caminker, Context and Complementarity Within Federalism Doctrine, 22 HARV. J.L. & PUB. POLY. 161 (1998). For an example concerning separation of powers doctrine, see Peter B. McCutchen, Mistakes, Precedent, and the Rise of the Administrative State: Toward a Constitutional Theory of the Second Best, 80 CORNELL L. REV. 1, 23-40 (1994) (arguing that the Court should have upheld rather than invalidated the one-House legislative veto, to restore a proper overall balance of power previously skewed by earlier Courts' erroneous decisions affirming unduly broad delegations of power to the executive branch). For an intriguing discussion of yet another possible relational criterion, one running counter to the consistency norm, see Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, 90 COLUM. L. REV. 2121, 2172-74 (1990) (arguing that certain democratic values might be served by having the answer to some intractable legal/moral issues cycle over time, such that the law reflects the principles espoused by various groups at least some of the time).
68. Suppose Justice Solo views rules A+ and B+ as complements, and views rules A- and B- as complements. A case presents issue A before the complementary issue B is resolved. Justice Solo's intrinsic criteria identify rule A+ as a better answer than rule A- for the Instant Case. But suppose she can confidently predict that, when issue B does arise in a Future Case, her successor Justice will select B- over B+ (either because the successor does not view A+ and B+ as complements, or because he views this relational criterion as less weighty than his intrinsic criteria that strongly prefer B-). Justice Solo now has a relational reason to prefer rule A- over rule A+ in the Instant Case, even though that is in tension with her intrinsic criteria which prefer A+. Depending on the relative weight of her intrinsic and relational criteria, she might well select rule A- today. Concededly, it may be difficult for Justice Solo to predict how a successor Justice will rule on a complementary issue.
69. In certain contexts, the number of plausible alternatives capable of being ranked in intelligible fashion may be quite limited. Consider, for example, the interpretation of a statutory limitations period for filing a pleading. There might be only two plausible interpretations, one counting all calendar days and the other counting only business days, leading to two plausible dates on which the limitations period runs. While these two answers could be ranked intelligibly as better and worse, all other dates would seem to be equally wrong. In other contexts one can imagine a dual equilibrium situation in which complementarity dominates any intrinsic criteria, such that a justice is truly indifferent between two complementary sets of rules, say B+ & C+ and B- & C-. See Benoit & Kornhauser, supra note 27, at 1515 (showing, in the particular case of voter behavior in legislative elections, that if an individual has nonseparable preferences over the available options within two distinct choice-sets, she may be unable unambiguously to rank the options in isolation). Such a situation certainly calls into question any jurisprudential claim that there exists a unique "right answer" to every legal question.
70. For example, Justices frequently defer to Congress's judgments by according its statutes a presumption of constitutionality. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 535 (1997). Richard Fallon has recently argued that, when Justices engage in judicial review in the face of reasonable popular disagreement over the moral principles animating constitutional doctrines, they should accommodate the reasonable views of the public to some degree. See Fallon, supra note 8, at 147-48.
71. For example, Justices frequently defer to Congress's judgments by according its statutes a presumption of constitutionality. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 535 (1997). Richard Fallon has recently argued that, when Justices engage in judicial review in the face of reasonable popular disagreement over the moral principles animating constitutional doctrines, they should accommodate the reasonable views of the public to some degree. See Fallon, supra note 8, at 147-48.
72. In other words, if embracing R1 will likely lead to a legislative move to R3, but embracing R2 would produce a stable result without triggering a legislative response, then the Justice might choose R2 in the first instance. See generally LAWRENCE BAUM, THE PUZZLE OF JUDICIAL BEHAVIOR 119-23 (1997) (summarizing research findings of others); EPSTEIN & KNIGHT, supra note 5, at 139-57; Cross, supra note 9, at 525-31. Some scholars have posited that sophisticated behavior designed to promote the Justices' own policy preferences can incidentally promote various norms consistent with judgment-based decisionmaking, such as rule-of-law values (by avoiding legislative-judicial confrontation and concomitant temporal instability) and democracy values (by interpreting the law closer in line with prevailing majoritarian sentiments). See William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court, 1993 Term - Foreword: Law as Equilibrium, 108 HARV. L. REV. 27 (1994). Of course sometimes the best long-term strategy is to eschew case-specific sophisticated reasoning See Howard Gillman, The Court as an Idea, Not a Building (or a Game): Interpretive Institutionalism and the Analysis of Supreme Court Decision-Making, in SUPREME COURT DECISION-MAKING, 65, 72 (Cornell W. Clayton & Howard Gillman eds., 1999) ("[S]ome justices when faced with intransigent competitors, may think that both their short-term and long-term interests are best served by standing firmly behind an unpopular but principled judgment rather than by retreating or evading a conflict . . . .").
73. In other words, if embracing R1 will likely lead to a legislative move to R3, but embracing R2 would produce a stable result without triggering a legislative response, then the Justice might choose R2 in the first instance. See generally LAWRENCE BAUM, THE PUZZLE OF JUDICIAL BEHAVIOR 119-23 (1997) (summarizing research findings of others); EPSTEIN & KNIGHT, supra note 5, at 139-57; Cross, supra note 9, at 525-31. Some scholars have posited that sophisticated behavior designed to promote the Justices' own policy preferences can incidentally promote various norms consistent with judgment-based decisionmaking, such as rule-of-law values (by avoiding legislative-judicial
74. In other words, if embracing R1 will likely lead to a legislative move to R3, but embracing R2 would produce a stable result without triggering a legislative response, then the Justice might choose R2 in the first instance. See generally LAWRENCE BAUM, THE PUZZLE OF JUDICIAL BEHAVIOR 119-23 (1997) (summarizing research findings of others); EPSTEIN & KNIGHT, supra note 5, at 139-57; Cross, supra note 9, at 525-31. Some scholars have posited that sophisticated behavior designed to promote the Justices' own policy preferences can incidentally promote various norms consistent with judgment-based decisionmaking, such as rule-of-law values (by avoiding legislative-judicial confrontation and concomitant temporal instability) and democracy values (by interpreting the law closer in line with prevailing majoritarian sentiments). See William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court, 1993 Term - Foreword: Law as Equilibrium, 108 HARV. L. REV. 27 (1994). Of course sometimes the best long-term strategy is to eschew case-specific sophisticated reasoning See Howard Gillman, The Court as an Idea, Not a Building (or a Game): Interpretive Institutionalism and the Analysis of Supreme Court Decision-Making, in SUPREME COURT DECISION-MAKING, 65, 72 (Cornell W. Clayton & Howard Gillman eds., 1999) ("[S]ome justices when faced with intransigent competitors, may think that both their short-term and long-term interests are best served by standing firmly behind an unpopular but principled judgment rather than by retreating or evading a conflict . . . .").
75. In other words, if embracing R1 will likely lead to a legislative move to R3, but embracing R2 would produce a stable result without triggering a legislative response, then the Justice might choose R2 in the first instance. See generally LAWRENCE BAUM, THE PUZZLE OF JUDICIAL BEHAVIOR 119-23 (1997) (summarizing research findings of others); EPSTEIN & KNIGHT, supra note 5, at 139-57; Cross, supra note 9, at 525-31. Some scholars have posited that sophisticated behavior designed to promote the Justices' own policy preferences can incidentally promote various norms consistent with judgment-based decisionmaking, such as rule-of-law values (by avoiding legislative-judicial confrontation and concomitant temporal instability) and democracy values (by interpreting the law closer in line with prevailing majoritarian sentiments). See William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court, 1993 Term - Foreword: Law as Equilibrium, 108 HARV. L. REV. 27 (1994). Of course sometimes the best long-term strategy is to eschew case-specific sophisticated reasoning See Howard Gillman, The Court as an Idea, Not a Building (or a Game): Interpretive Institutionalism and the Analysis of Supreme Court Decision-Making, in SUPREME COURT DECISION-MAKING, 65, 72 (Cornell W. Clayton & Howard Gillman eds., 1999) ("[S]ome justices when faced with intransigent competitors, may think that both their short-term and long-term interests are best served by standing firmly behind an unpopular but principled judgment rather than by retreating or evading a conflict . . . .").
76. In other words, if embracing R1 will likely lead to a legislative move to R3, but embracing R2 would produce a stable result without triggering a legislative response, then the Justice might choose R2 in the first instance. See generally LAWRENCE BAUM, THE PUZZLE OF JUDICIAL BEHAVIOR 119-23 (1997) (summarizing research findings of others); EPSTEIN & KNIGHT, supra note 5, at 139-57; Cross, supra note 9, at 525-31. Some scholars have posited that sophisticated behavior designed to promote the Justices' own policy preferences can incidentally promote various norms consistent with judgment-based decisionmaking, such as rule-of-law values (by avoiding legislative-judicial confrontation and concomitant temporal instability) and democracy values (by interpreting the law closer in line with prevailing majoritarian sentiments). See William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court, 1993 Term - Foreword: Law as Equilibrium, 108 HARV. L. REV. 27 (1994). Of course sometimes the best long-term strategy is to eschew case-specific sophisticated reasoning See Howard Gillman, The Court as an Idea, Not a Building (or a Game): Interpretive Institutionalism and the Analysis of Supreme Court Decision-Making, in SUPREME COURT DECISION-MAKING, 65, 72 (Cornell W. Clayton & Howard Gillman eds., 1999) ("[S]ome justices when faced with intransigent competitors, may think that both their short-term and long-term interests are best served by standing firmly behind an unpopular but principled judgment rather than by retreating or evading a conflict . . . .").
77. See, e.g., ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 247-54 (2d ed. 1986) (defending on these grounds the Court's "all deliberate speed" formula requiring gradual rather than immediate racial desegregation in Southern public schools); Dennis J. Hutchinson, Unanimity and Desegregation: Decisionmaking in the Supreme Court, 1948- 1958, 68 GEO. L.J. 1, 61-67 (1979) (discussing the Court's strategic decision in 1955-56 to duck the merits of an equal protection challenge to Virginia's antimiscegenation statute).
78. See, e.g., ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 247-54 (2d ed. 1986) (defending on these grounds the Court's "all deliberate speed" formula requiring gradual rather than immediate racial desegregation in Southern public schools); Dennis J. Hutchinson, Unanimity and Desegregation: Decisionmaking in the Supreme Court, 1948-1958, 68 GEO. L.J. 1, 61-67 (1979) (discussing the Court's strategic decision in 1955-56 to duck the merits of an equal protection challenge to Virginia's antimiscegenation statute).
79. See, e.g., BICKEL, supra note 37, at 239 ("[T]he Court should declare as law only such principles as will - in time, but in a rather immediate foreseeable future - gam general assent"). Lower court judges might also engage in sophisticated voting based on the anticipated review and potential reversal of their rulings by higher courts. Various political scientists have modelled inferior-superior court interaction, positing that lower courts sometimes issue suboptimal decisions to avoid foreseeable overrulings. See, e.g., Jeffrey A. Segal et al., Decision Making on the U.S. Courts of Appeals, in CONTEMPLATING COURTS 227 (Lee Epstein ed., 1995) (modelling lower court decisionmaking). In some circumstances, such sophisticated behavior might promote the norms underlying the doctrine of stare decisis. See Caminker, supra note 30, at 36-43. This inferior-superior court relationship actually affords lower court judges sitting alone an intriguing opportunity and incentive to engage in a form of temporal vote trading with themselves. Suppose Judge Tryalone sincerely supports rule A in the Instant Case, but believes that his reviewing appellate court would view rule A as not only wrong but radically so. Judge Tryalone might vote sophisticatedly in the Instant Case and refrain from endorsing rule A, not because he would likely be reversed in this case (although this is true), but because he would risk branding himself an extremist or loose cannon in the eyes of his reviewing court, and thus increase the likelihood that his rulings in Future Cases will receive harsher appellate scrutiny. In other words, Judge Tryalone would choose to vote insincerely in the Instant Case (by bringing his views closer in line to his reviewing court's views) to improve his chances of getting sincere rules B, C, and D past appellate review in Future Cases. Optimality in rule A is traded for a future stream of improved rules. I think such sophisticated voting by Judge Tryalone would be highly controversial; suffice for now to say that some, but not all, of the normative objections to bilateral vote trading explored in Part III would apply to this unilateral strategy.
80. See, e.g., BICKEL, supra note 37, at 239 ("[T]he Court should declare as law only such principles as will - in time, but in a rather immediate foreseeable future - gam general assent"). Lower court judges might also engage in sophisticated voting based on the anticipated review and potential reversal of their rulings by higher courts. Various political scientists have modelled inferior-superior court interaction, positing that lower courts sometimes issue suboptimal decisions to avoid foreseeable overrulings. See, e.g., Jeffrey A. Segal et al., Decision Making on the U.S. Courts of Appeals, in CONTEMPLATING COURTS 227 (Lee Epstein ed., 1995) (modelling lower court decisionmaking). In some circumstances, such sophisticated behavior might promote the norms underlying the doctrine of stare decisis. See Caminker, supra note 30, at 36-43. This inferior-superior court relationship actually affords lower court judges sitting alone an intriguing opportunity and incentive to engage in a form of temporal vote trading with themselves. Suppose Judge Tryalone sincerely supports rule A in the Instant Case, but believes that his reviewing appellate court would view rule A as not only wrong but radically so. Judge Tryalone might vote sophisticatedly in the Instant Case and refrain from endorsing rule A, not because he would likely be reversed in this case (although this is true), but because he would risk branding himself an extremist or loose cannon in the eyes of his reviewing court, and thus increase the likelihood that his rulings in Future Cases will receive harsher appellate scrutiny. In other words, Judge Tryalone would choose to vote insincerely in the Instant Case (by bringing his views closer in line to his reviewing court's views) to improve his chances of getting sincere rules B, C, and D past appellate review in Future Cases. Optimality in rule A is traded for a future stream of improved rules. I think such sophisticated voting by Judge Tryalone would be highly controversial; suffice for now to say that some, but not all, of the normative objections to bilateral vote trading explored in Part III would apply to this unilateral strategy.
81. See, e.g., BICKEL, supra note 37, at 239 ("[T]he Court should declare as law only such principles as will - in time, but in a rather immediate foreseeable future - gam general assent"). Lower court judges might also engage in sophisticated voting based on the anticipated review and potential reversal of their rulings by higher courts. Various political scientists have modelled inferior-superior court interaction, positing that lower courts sometimes issue suboptimal decisions to avoid foreseeable overrulings. See, e.g., Jeffrey A. Segal et al., Decision Making on the U.S. Courts of Appeals, in CONTEMPLATING COURTS 227 (Lee Epstein ed., 1995) (modelling lower court decisionmaking). In some circumstances, such sophisticated behavior might promote the norms underlying the doctrine of stare decisis. See Caminker, supra note 30, at 36-43. This inferior-superior court relationship actually affords lower court judges sitting alone an intriguing opportunity and incentive to engage in a form of temporal vote trading with themselves. Suppose Judge Tryalone sincerely supports rule A in the Instant Case, but believes that his reviewing appellate court would view rule A as not only wrong but radically so. Judge Tryalone might vote sophisticatedly in the Instant Case and refrain from endorsing rule A, not because he would likely be reversed in this case (although this is true), but because he would risk branding himself an extremist or loose cannon in the eyes of his reviewing court, and thus increase the likelihood that his rulings in Future Cases will receive harsher appellate scrutiny. In other words, Judge Tryalone would choose to vote insincerely in the Instant Case (by bringing his views closer in line to his reviewing court's views) to improve his chances of getting sincere rules B, C, and D past appellate review in Future Cases. Optimality in rule A is traded for a future stream of improved rules. I think such sophisticated voting by Judge Tryalone would be highly controversial; suffice for now to say that some, but not all, of the normative objections to bilateral vote trading explored in Part III would apply to this unilateral strategy.
82. Some scholars use "sophisticated" and "strategic" interchangeably, but I want to draw a clear distinction here between a Justice's consideration of nonjudicial actors' future decisions and a Justice's consideration of her peers' views regarding the instant decision -which is all I mean by "strategic." Both legislative- and public-regarding sophisticated behavior have frequently been criticized. See, e.g., MURPHY, supra note 2, at 186 (suggesting that judicial consideration of current or future political reactions "would seem to defeat the very purpose of judicial independence"); Gerald Gunther, The Subtle Vices of the "Passive Virtues" - A Comment on Principle and Expediency in Judicial Review, 64 COLUM. L. REV. 1 (1964) (criticizing Alexander Bickel's "passive virtues," some of which involve sophisticated reasoning).
83. Some scholars use "sophisticated" and "strategic" interchangeably, but I want to draw a clear distinction here between a Justice's consideration of nonjudicial actors' future decisions and a Justice's consideration of her peers' views regarding the instant decision - which is all I mean by "strategic." Both legislative- and public-regarding sophisticated behavior have frequently been criticized. See, e.g., MURPHY, supra note 2, at 186 (suggesting that judicial consideration of current or future political reactions "would seem to defeat the very purpose of judicial independence"); Gerald Gunther, The Subtle Vices of the "Passive Virtues" - A Comment on Principle and Expediency in Judicial Review, 64 COLUM. L. REV. 1 (1964) (criticizing Alexander Bickel's "passive virtues," some of which involve sophisticated reasoning).
84. See, e.g., Harry T. Edwards, Collegiality and Decision Making on the D.C. Circuit, 84 VA. L. REV. 1335, 1360 (1998); Kornhauser & Sager, supra note 18, at 101.
85. See, e.g., Harry T. Edwards, Collegiality and Decision Making on the D.C. Circuit, 84 VA. L. REV. 1335, 1360 (1998); Kornhauser & Sager, supra note 18, at 101.
86. "Strategic" tactics designed to "persuade" a colleague to modify her views more in line with one's own position, such as using personal influence, cajoling, and imposing informal sanctions, see generally MURPHY, supra note 2, at 43-56, do not count as "strategic behavior" for my purposes. If by using such tactics one Justice convinces the second to believe sincerely in rule X, neither Justice engages in "strategic voting" because both pursue their (ultimate) sincere positions.
87. Frank I. Michelman, The Supreme Court, 1985 Term - Foreword: Traces of Self-Government, 100 HARV. L. REV. 4, 77 (1987).
88. See Fallon, supra note 8, at 148 ("The Justices' role . . . is not exclusively one of truth-telling about the meaning of the Constitution (as each, personally, thinks that it ideally would be understood), but is also one, sometimes predominantly, of participating in a necessarily cooperative project . . . .").
89. Even advocates of practical reason must concede that, notwithstanding the epistemological pressure to achieve consensus, this will not always occur. See Jack Knight & James Johnson, Aggregation and Deliberation: On the Possibility of Democratic Legitimacy, 22 POL. THEORY 277, 283 (1994) ("[A]s some advocates of deliberation readily concede, while it aims at consensus there is no guarantee it will produce consensus. At some point then, matters will have to be put to a vote.").
90. I assume throughout this paper that individual Justices engage in a rigorous and honest effort to determine their own sincere preferences, both prior to and during any collegial deliberation. My focus is on occasions when a Justice self-consciously votes inconsistently with what she perceives to be her "ultimate" sincere view. For present purposes I want to view the practice of sincere decisionmaking in its best possible light. In reality, things are not so simple. For any number of reasons a Justice, even prior to deliberation, may not determine rigorously a sincere belief for every discrete legal problem she must decide. For example, she may choose to think about certain areas of law less than others for lack of time or interest or perceived evaluative capability; she may defer to other authorities (such as treatises) more in some areas than others; or she may cling to a belief without systematic investigation in one domain in order to maintain perceived consistency with her beliefs in another domain she considers more important (reflecting a desire to avoid cognitive dissonance). In a sense, each of these phenomena leads a Justice to sacrifice rigorous development of a sincere belief on one issue in exchange for adherence to a rigorously developed sincere belief on a different issue. One might loosely characterize this behavior as an "internal vote trade," although technically she does not self-consciously "vote against" her sincere belief on the former issue; she just never really forms such a belief in the first instance. The collegial environment may add new psychosocial complexities undermining a stark division between sincere preference formation and strategic voting. For example, a Justice may "allow herself to be persuaded by a colleague, and indeed might self-consciously perceive herself as persuaded, where the persuasion is really animated by the desire to engage (implicitly) in strategic behavior. Alternatively, a Justice who perceives herself as interested in a strategic maneuver, but believes such behavior is improper, might refrain from reasoning carefully about her sincere views in the first instance; by "not thinking too hard" about the case, she can act consistently with her strategic impulse but still maintain her self-image of propriety. The causes or prevalence of such internal decisionmaking dynamics are beyond the scope of this article. These phenomena do suggest, however, that the line between "sincere" and "strategic" behavior may be far less crisp that I suppose.
91. I do not explore claims that multimember tribunals afford judges unique avenues of strategic voting designed to promote various personal agendas unrelated to optimal adjudication. For example, judges on a multimember court can expand their leisure time by joining colleagues' opinions with which they do not entirely agree, suppressing their disagreement in order to save the time required to write a concurring or dissenting opinion. See POSNER, supra note 4, at 124 (noting this phenomenon in the context of intermediate appellate courts). Judges on a multimember court who like winning for psychological reasons might deviate from their sincere views to join the winning coalition, and judges who seek status by enhancing their perceived importance may strategically position themselves in the middle of a contentiously divided court to establish themselves as "swing voters" who ultimately determine important outcomes. See, e.g., Tracey E. George, Developing a Positive Theory of Decisionmaking on U.S. Courts of Appeals, 58 OHIO ST. L.J. 1635, 1661-63 (1998).
92. I do not explore claims that multimember tribunals afford judges unique avenues of strategic voting designed to promote various personal agendas unrelated to optimal adjudication. For example, judges on a multimember court can expand their leisure time by joining colleagues' opinions with which they do not entirely agree, suppressing their disagreement in order to save the time required to write a concurring or dissenting opinion. See POSNER, supra note 4, at 124 (noting this phenomenon in the context of intermediate appellate courts). Judges on a multimember court who like winning for psychological reasons might deviate from their sincere views to join the winning coalition, and judges who seek status by enhancing their perceived importance may strategically position themselves in the middle of a contentiously divided court to establish themselves as "swing voters" who ultimately determine important outcomes. See, e.g., Tracey E. George, Developing a Positive Theory of Decisionmaking on U.S. Courts of Appeals, 58 OHIO ST. L.J. 1635, 1661-63 (1998).
93. See David L. Shapiro, In Defense of Judicial Candor, 100 HARV. L. REV. 731, 750 (1987) ("There is a vast difference, for example, between sending someone to the gas cham-ber because of his race or religion and holding that the statute of limitations has run before an injury was discovered.").
94. For an example of one such asymmetrical valuation of mistakes, see In re Winship, 397 U.S. 358, 372 (1970) (Harlan, J., concurring) (noting that "a fundamental value determination of our society [is] that it is far worse to convict an innocent man than to let a guilty man go free").
95. Technically, the Court needs a majority of a "quorum" of six to decide a case, so it takes at least four Justices (of seven sitting) to construct a majority-disposition or majority-opinion coalition. See 28 U.S.C. § 1 (1994); ROBERT L. STERN ET AL., SUPREME COURT PRACTICE 2 (7th ed. 1993).
96. It is common but wrong to view cases as presenting a binary choice over dispositions between affirm and reverse; multiple dispositions are commonly available and occasionally plausible. The list includes the following: affirm, reverse, affirm in part and reverse in part (and Justices might disagree as to the particular parts), reverse and remand (with different types of instructions, which might even be viewed as a set of continuous rather than discrete options), vacate and remand (with same instruction options), dismiss the certiorari petition as improvidently granted, dismiss the petition/appeal for lack of Supreme Court jurisdiction, and vacate the proceedings below for lack of federal court jurisdiction. See 28 U.S.C. § 2106 (1994) (listing these options in less detail).
97. See Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion, 74 N.Y.U. L. REV. 123, 140 (1999) ("A court must enter some judgment in order to dispose of the case. Without majority agreement on the judgment to be entered . . . the case cannot be decided at all."). Interestingly, the proposition that the Court must affirmatively decide each case (even if only to decide not to decide the merits, for jurisdictional or like reasons) is assumed rather than defended. One could imagine resolving cases where no majority sincerely favors a single disposition by issuing a per curiam judgment "affirmed by a deadlocked Court," analogous to the conventional "affirmed by an equally divided Court." I will not pursue here whether or not this would be a wise procedural innovation; for present purposes, the point is a helpful reminder that judicial maneuvers are necessarily shaped and evaluated by the prevailing institutional environment and decisionmaking protocols.
98. A quintessential example is Klapprott v. United States, 335 U.S. 601 (1949). Four Justices (Reed, Vinson, Jackson, Frankfurter) voted to affirm the judgment below, and three Justices (Black, Douglas, Burton) voted to reverse and remand. The remaining two Justices (Rutledge, Murphy) announced that their preferred rule would lead them to reverse outright. However, these two Justices instead switched their actual vote to reverse and remand, thereby breaking the erstwhile deadlock by creating a majority coalition for this disposition. See 335 U.S. at 619 ("Since, however, that disposition [reversal] does not receive the concurrence of a majority, I join with those who, on other grounds, think that the judgment should be reversed and remanded for a new trial, in voting so to dispose of the cause."). For a partial list of other cases illustrating the same phenomenon of disposition vote-switching, see John M. Rogers, "Issue Voting" by Multimember Appellate Courts: A Response to Some Radical Proposals, 49 VAND. L. REV. 997, 998 n.4 & 1032 n.118 (1996). See also Bragdon v. Abbott, 118 S. Ct. 2196 (1998) (two-Justice faction switched from outright affirmance to affirm and remand); Pennsylvania v. Muniz, 496 U.S. 582 (1990) (four-Justice faction switched from outright reversal to vacate and remand); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) (single-Justice faction switched from jurisdictional dismissal to affirm and remand on one of two consolidated cases); United States v. Jorn, 400 U.S. 470 (1971) (two- justice faction switched from jurisdictional dismissal to affirm); Kesler v. Department of Public Safety, 369 U.S. 153 (1962) (single-Justice faction switched from jurisdictional dismissal to affirm); cf. Inman v. Baltimore & Ohio R.R. Co., 361 U.S. 138 (1959) (single-Justice faction switched from dismissal of cert, petition to affirm, to avoid equally divided Court). There appears to be no convention or pattern that the smallest of the multiple factions should switch its vote; the size of the switching group ranges from one to four Justices. There is, however, a pattern concerning the direction of vote switching. The cases fall into one of two categories: (1) a faction that sincerely believes the Court lacks jurisdiction switches to a merits-based disposition; or (2) a faction that sincerely believes the judgment ought to be affirmed or reversed switches to a disposition calling for some sort of remand. In no case did a faction switch to a jurisdictional dismissal or switch away from a remand to an outright affirmance or reversal. There is, however, no articulated rationale for these patterns in any of the cases. It appears that the choice whether to stand firm or switch (and to what) is left up to the strategic judgment of each faction.
99. A quintessential example is Klapprott v. United States, 335 U.S. 601 (1949). Four Justices (Reed, Vinson, Jackson, Frankfurter) voted to affirm the judgment below, and three Justices (Black, Douglas, Burton) voted to reverse and remand. The remaining two Justices (Rutledge, Murphy) announced that their preferred rule would lead them to reverse outright. However, these two Justices instead switched their actual vote to reverse and remand, thereby breaking the erstwhile deadlock by creating a majority coalition for this disposition. See 335 U.S. at 619 ("Since, however, that disposition [reversal] does not receive the concurrence of a majority, I join with those who, on other grounds, think that the judgment should be reversed and remanded for a new trial, in voting so to dispose of the cause."). For a partial list of other cases illustrating the same phenomenon of disposition vote- switching, see John M. Rogers, "Issue Voting" by Multimember Appellate Courts: A Response to Some Radical Proposals, 49 VAND. L. REV. 997, 998 n.4 & 1032 n.118 (1996). See also Bragdon v. Abbott, 118 S. Ct. 2196 (1998) (two-Justice faction switched from outright affirmance to affirm and remand); Pennsylvania v. Muniz, 496 U.S. 582 (1990) (four-Justice faction switched from outright reversal to vacate and remand); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) (single-Justice faction switched from jurisdictional dismissal to affirm and remand on one of two consolidated cases); United States v. Jorn, 400 U.S. 470 (1971) (two- justice faction switched from jurisdictional dismissal to affirm); Kesler v. Department of Public Safety, 369 U.S. 153 (1962) (single-Justice faction switched from jurisdictional dismissal to affirm); cf. Inman v. Baltimore & Ohio R.R. Co., 361 U.S. 138 (1959) (single-Justice faction switched from dismissal of cert, petition to affirm, to avoid equally divided Court). There appears to be no convention or pattern that the smallest of the multiple factions should switch its vote; the size of the switching group ranges from one to four Justices. There is, however, a pattern concerning the direction of vote switching. The cases fall into one of two categories: (1) a faction that sincerely believes the Court lacks jurisdiction switches to a merits-based disposition; or (2) a faction that sincerely believes the judgment ought to be affirmed or reversed switches to a disposition calling for some sort of remand. In no case did a faction switch to a jurisdictional dismissal or switch away from a remand to an outright affirmance or reversal. There is, however, no articulated rationale for these patterns in any of the cases. It appears that the choice whether to stand firm or switch (and to what) is left up to the strategic judgment of each faction.
100. A quintessential example is Klapprott v. United States, 335 U.S. 601 (1949). Four Justices (Reed, Vinson, Jackson, Frankfurter) voted to affirm the judgment below, and three Justices (Black, Douglas, Burton) voted to reverse and remand. The remaining two Justices (Rutledge, Murphy) announced that their preferred rule would lead them to reverse outright. However, these two Justices instead switched their actual vote to reverse and remand, thereby breaking the erstwhile deadlock by creating a majority coalition for this disposition. See 335 U.S. at 619 ("Since, however, that disposition [reversal] does not receive the concurrence of a majority, I join with those who, on other grounds, think that the judgment should be reversed and remanded for a new trial, in voting so to dispose of the cause."). For a partial list of other cases illustrating the same phenomenon of disposition vote- switching, see John M. Rogers, "Issue Voting" by Multimember Appellate Courts: A Response to Some Radical Proposals, 49 VAND. L. REV. 997, 998 n.4 & 1032 n.118 (1996). See also Bragdon v. Abbott, 118 S. Ct. 2196 (1998) (two-Justice faction switched from outright affirmance to affirm and remand); Pennsylvania v. Muniz, 496 U.S. 582 (1990) (four-Justice faction switched from outright reversal to vacate and remand); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) (single-Justice faction switched from jurisdictional dismissal to affirm and remand on one of two consolidated cases); United States v. Jorn, 400 U.S. 470 (1971) (two- justice faction switched from jurisdictional dismissal to affirm); Kesler v. Department of Public Safety, 369 U.S. 153 (1962) (single-Justice faction switched from jurisdictional dismissal to affirm); cf. Inman v. Baltimore & Ohio R.R. Co., 361 U.S. 138 (1959) (single-Justice faction switched from dismissal of cert, petition to affirm, to avoid equally divided Court). There appears to be no convention or pattern that the smallest of the multiple factions should switch its vote; the size of the switching group ranges from one to four Justices. There is, however, a pattern concerning the direction of vote switching. The cases fall into one of two categories: (1) a faction that sincerely believes the Court lacks jurisdiction switches to a merits-based disposition; or (2) a faction that sincerely believes the judgment ought to be affirmed or reversed switches to a disposition calling for some sort of remand. In no case did a faction switch to a jurisdictional dismissal or switch away from a remand to an outright affirmance or reversal. There is, however, no articulated rationale for these patterns in any of the cases. It appears that the choice whether to stand firm or switch (and to what) is left up to the strategic judgment of each faction.
101. A quintessential example is Klapprott v. United States, 335 U.S. 601 (1949). Four Justices (Reed, Vinson, Jackson, Frankfurter) voted to affirm the judgment below, and three Justices (Black, Douglas, Burton) voted to reverse and remand. The remaining two Justices (Rutledge, Murphy) announced that their preferred rule would lead them to reverse outright. However, these two Justices instead switched their actual vote to reverse and remand, thereby breaking the erstwhile deadlock by creating a majority coalition for this disposition. See 335 U.S. at 619 ("Since, however, that disposition [reversal] does not receive the concurrence of a majority, I join with those who, on other grounds, think that the judgment should be reversed and remanded for a new trial, in voting so to dispose of the cause."). For a partial list of other cases illustrating the same phenomenon of disposition vote- switching, see John M. Rogers, "Issue Voting" by Multimember Appellate Courts: A Response to Some Radical Proposals, 49 VAND. L. REV. 997, 998 n.4 & 1032 n.118 (1996). See also Bragdon v. Abbott, 118 S. Ct. 2196 (1998) (two-Justice faction switched from outright affirmance to affirm and remand); Pennsylvania v. Muniz, 496 U.S. 582 (1990) (four-Justice faction switched from outright reversal to vacate and remand); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) (single-Justice faction switched from jurisdictional dismissal to affirm and remand on one of two consolidated cases); United States v. Jorn, 400 U.S. 470 (1971) (two- justice faction switched from jurisdictional dismissal to affirm); Kesler v. Department of Public Safety, 369 U.S. 153 (1962) (single-Justice faction switched from jurisdictional dismissal to affirm); cf. Inman v. Baltimore & Ohio R.R. Co., 361 U.S. 138 (1959) (single-Justice faction switched from dismissal of cert, petition to affirm, to avoid equally divided Court). There appears to be no convention or pattern that the smallest of the multiple factions should switch its vote; the size of the switching group ranges from one to four Justices. There is, however, a pattern concerning the direction of vote switching. The cases fall into one of two categories: (1) a faction that sincerely believes the Court lacks jurisdiction switches to a merits-based disposition; or (2) a faction that sincerely believes the judgment ought to be affirmed or reversed switches to a disposition calling for some sort of remand. In no case did a faction switch to a jurisdictional dismissal or switch away from a remand to an outright affirmance or reversal. There is, however, no articulated rationale for these patterns in any of the cases. It appears that the choice whether to stand firm or switch (and to what) is left up to the strategic judgment of each faction.
102. A quintessential example is Klapprott v. United States, 335 U.S. 601 (1949). Four Justices (Reed, Vinson, Jackson, Frankfurter) voted to affirm the judgment below, and three Justices (Black, Douglas, Burton) voted to reverse and remand. The remaining two Justices (Rutledge, Murphy) announced that their preferred rule would lead them to reverse outright. However, these two Justices instead switched their actual vote to reverse and remand, thereby breaking the erstwhile deadlock by creating a majority coalition for this disposition. See 335 U.S. at 619 ("Since, however, that disposition [reversal] does not receive the concurrence of a majority, I join with those who, on other grounds, think that the judgment should be reversed and remanded for a new trial, in voting so to dispose of the cause."). For a partial list of other cases illustrating the same phenomenon of disposition vote- switching, see John M. Rogers, "Issue Voting" by Multimember Appellate Courts: A Response to Some Radical Proposals, 49 VAND. L. REV. 997, 998 n.4 & 1032 n.118 (1996). See also Bragdon v. Abbott, 118 S. Ct. 2196 (1998) (two-Justice faction switched from outright affirmance to affirm and remand); Pennsylvania v. Muniz, 496 U.S. 582 (1990) (four-Justice faction switched from outright reversal to vacate and remand); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) (single-Justice faction switched from jurisdictional dismissal to affirm and remand on one of two consolidated cases); United States v. Jorn, 400 U.S. 470 (1971) (two- justice faction switched from jurisdictional dismissal to affirm); Kesler v. Department of Public Safety, 369 U.S. 153 (1962) (single-Justice faction switched from jurisdictional dismissal to affirm); cf. Inman v. Baltimore & Ohio R.R. Co., 361 U.S. 138 (1959) (single-Justice faction switched from dismissal of cert, petition to affirm, to avoid equally divided Court). There appears to be no convention or pattern that the smallest of the multiple factions should switch its vote; the size of the switching group ranges from one to four Justices. There is, however, a pattern concerning the direction of vote switching. The cases fall into one of two categories: (1) a faction that sincerely believes the Court lacks jurisdiction switches to a merits-based disposition; or (2) a faction that sincerely believes the judgment ought to be affirmed or reversed switches to a disposition calling for some sort of remand. In no case did a faction switch to a jurisdictional dismissal or switch away from a remand to an outright affirmance or reversal. There is, however, no articulated rationale for these patterns in any of the cases. It appears that the choice whether to stand firm or switch (and to what) is left up to the strategic judgment of each faction.
103. A quintessential example is Klapprott v. United States, 335 U.S. 601 (1949). Four Justices (Reed, Vinson, Jackson, Frankfurter) voted to affirm the judgment below, and three Justices (Black, Douglas, Burton) voted to reverse and remand. The remaining two Justices (Rutledge, Murphy) announced that their preferred rule would lead them to reverse outright. However, these two Justices instead switched their actual vote to reverse and remand, thereby breaking the erstwhile deadlock by creating a majority coalition for this disposition. See 335 U.S. at 619 ("Since, however, that disposition [reversal] does not receive the concurrence of a majority, I join with those who, on other grounds, think that the judgment should be reversed and remanded for a new trial, in voting so to dispose of the cause."). For a partial list of other cases illustrating the same phenomenon of disposition vote- switching, see John M. Rogers, "Issue Voting" by Multimember Appellate Courts: A Response to Some Radical Proposals, 49 VAND. L. REV. 997, 998 n.4 & 1032 n.118 (1996). See also Bragdon v. Abbott, 118 S. Ct. 2196 (1998) (two-Justice faction switched from outright affirmance to affirm and remand); Pennsylvania v. Muniz, 496 U.S. 582 (1990) (four-Justice faction switched from outright reversal to vacate and remand); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) (single-Justice faction switched from jurisdictional dismissal to affirm and remand on one of two consolidated cases); United States v. Jorn, 400 U.S. 470 (1971) (two-justice faction switched from jurisdictional dismissal to affirm); Kesler v. Department of Public Safety, 369 U.S. 153 (1962) (single-Justice faction switched from jurisdictional dismissal to affirm); cf. Inman v. Baltimore & Ohio R.R. Co., 361 U.S. 138 (1959) (single-Justice faction switched from dismissal of cert, petition to affirm, to avoid equally divided Court). There appears to be no convention or pattern that the smallest of the multiple factions should switch its vote; the size of the switching group ranges from one to four Justices. There is, however, a pattern concerning the direction of vote switching. The cases fall into one of two categories: (1) a faction that sincerely believes the Court lacks jurisdiction switches to a merits-based disposition; or (2) a faction that sincerely believes the judgment ought to be affirmed or reversed switches to a disposition calling for some sort of remand. In no case did a faction switch to a jurisdictional dismissal or switch away from a remand to an outright affirmance or reversal. There is, however, no articulated rationale for these patterns in any of the cases. It appears that the choice whether to stand firm or switch (and to what) is left up to the strategic judgment of each faction.
104. A quintessential example is Klapprott v. United States, 335 U.S. 601 (1949). Four Justices (Reed, Vinson, Jackson, Frankfurter) voted to affirm the judgment below, and three Justices (Black, Douglas, Burton) voted to reverse and remand. The remaining two Justices (Rutledge, Murphy) announced that their preferred rule would lead them to reverse outright. However, these two Justices instead switched their actual vote to reverse and remand, thereby breaking the erstwhile deadlock by creating a majority coalition for this disposition. See 335 U.S. at 619 ("Since, however, that disposition [reversal] does not receive the concurrence of a majority, I join with those who, on other grounds, think that the judgment should be reversed and remanded for a new trial, in voting so to dispose of the cause."). For a partial list of other cases illustrating the same phenomenon of disposition vote- switching, see John M. Rogers, "Issue Voting" by Multimember Appellate Courts: A Response to Some Radical Proposals, 49 VAND. L. REV. 997, 998 n.4 & 1032 n.118 (1996). See also Bragdon v. Abbott, 118 S. Ct. 2196 (1998) (two-Justice faction switched from outright affirmance to affirm and remand); Pennsylvania v. Muniz, 496 U.S. 582 (1990) (four-Justice faction switched from outright reversal to vacate and remand); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) (single-Justice faction switched from jurisdictional dismissal to affirm and remand on one of two consolidated cases); United States v. Jorn, 400 U.S. 470 (1971) (two- justice faction switched from jurisdictional dismissal to affirm); Kesler v. Department of Public Safety, 369 U.S. 153 (1962) (single-Justice faction switched from jurisdictional dismissal to affirm); cf. Inman v. Baltimore & Ohio R.R. Co., 361 U.S. 138 (1959) (single-Justice faction switched from dismissal of cert, petition to affirm, to avoid equally divided Court). There appears to be no convention or pattern that the smallest of the multiple factions should switch its vote; the size of the switching group ranges from one to four Justices. There is, however, a pattern concerning the direction of vote switching. The cases fall into one of two categories: (1) a faction that sincerely believes the Court lacks jurisdiction switches to a merits-based disposition; or (2) a faction that sincerely believes the judgment ought to be affirmed or reversed switches to a disposition calling for some sort of remand. In no case did a faction switch to a jurisdictional dismissal or switch away from a remand to an outright affirmance or reversal. There is, however, no articulated rationale for these patterns in any of the cases. It appears that the choice whether to stand firm or switch (and to what) is left up to the strategic judgment of each faction.
105. A quintessential example is Klapprott v. United States, 335 U.S. 601 (1949). Four Justices (Reed, Vinson, Jackson, Frankfurter) voted to affirm the judgment below, and three Justices (Black, Douglas, Burton) voted to reverse and remand. The remaining two Justices (Rutledge, Murphy) announced that their preferred rule would lead them to reverse outright. However, these two Justices instead switched their actual vote to reverse and remand, thereby breaking the erstwhile deadlock by creating a majority coalition for this disposition. See 335 U.S. at 619 ("Since, however, that disposition [reversal] does not receive the concurrence of a majority, I join with those who, on other grounds, think that the judgment should be reversed and remanded for a new trial, in voting so to dispose of the cause."). For a partial list of other cases illustrating the same phenomenon of disposition vote- switching, see John M. Rogers, "Issue Voting" by Multimember Appellate Courts: A Response to Some Radical Proposals, 49 VAND. L. REV. 997, 998 n.4 & 1032 n.118 (1996). See also Bragdon v. Abbott, 118 S. Ct. 2196 (1998) (two-Justice faction switched from outright affirmance to affirm and remand); Pennsylvania v. Muniz, 496 U.S. 582 (1990) (four-Justice faction switched from outright reversal to vacate and remand); Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989) (single-Justice faction switched from jurisdictional dismissal to affirm and remand on one of two consolidated cases); United States v. Jorn, 400 U.S. 470 (1971) (two- justice faction switched from jurisdictional dismissal to affirm); Kesler v. Department of Public Safety, 369 U.S. 153 (1962) (single-Justice faction switched from jurisdictional dismissal to affirm); cf. Inman v. Baltimore & Ohio R.R. Co., 361 U.S. 138 (1959) (single-Justice faction switched from dismissal of cert, petition to affirm, to avoid equally divided Court). There appears to be no convention or pattern that the smallest of the multiple factions should switch its vote; the size of the switching group ranges from one to four Justices. There is, however, a pattern concerning the direction of vote switching. The cases fall into one of two categories: (1) a faction that sincerely believes the Court lacks jurisdiction switches to a merits-based disposition; or (2) a faction that sincerely believes the judgment ought to be affirmed or reversed switches to a disposition calling for some sort of remand. In no case did a faction switch to a jurisdictional dismissal or switch away from a remand to an outright affirmance or reversal. There is, however, no articulated rationale for these patterns in any of the cases. It appears that the choice whether to stand firm or switch (and to what) is left up to the strategic judgment of each faction.
106. It is noteworthy that, given these incentives for strategic voting, the ultimate majority-disposition will not necessarily identify a "Condorcet-winner" that would beat all alternatives in a series of pairwise comparisons, even if such a winner exists. For an explanation and illustration of the Condorcet voting paradox and cycling majorities, see, for example, HANNU NURMI, COMPARING VOTING SYSTEMS 12-14 (1987); WILLIAM H. RIKER, LIBERALISM AGAINST POPULISM 67-81 (1982); STEARNS, supra note 1, at 81-88. Suppose three Justices compose each of three Court factions J1, J2, and J3, and the factions have the following rank orderings across three alternative dispositions A (affirm), R (reverse), and D (dismiss) J1 J2 J3 A R D R D R D A A R is a Condorcet-winner; it will beat A (2-1) and D (2-1) by majority vote. According to the Court's unstructured process, R will emerge as the majority disposition if either factions J1 or J3 switch first from their top-ranked to their second-ranked disposition R. But D will emerge if faction J2 switches first to its second-ranked disposition D. If J2 is more concerned about breaking the impasse than are J1 and J3, or if J2 is more concerned about avoiding its third- ranked disposition than are J1 and J3, then J2 will switch first, and D rather than the Condorcet-winner R will emerge as the collective choice. In theory, at this point J1 could approach J2 and point out that both would prefer R to D, which they could achieve by agreeing that J2 would vote sincerely for R and J1 would vote strategically for R. Such a second-round of bargaining would thus lead back to the Condorcet-winner. But unless each faction reveals its entire set of rankings - and it is unclear how often this might happen - such a second-round of bargaining may never occur. Emergence of a Condorcet-winner thus depends on both the preference revelation and bargaining practices on the Court.
107. It is noteworthy that, given these incentives for strategic voting, the ultimate majority- disposition will not necessarily identify a "Condorcet-winner" that would beat all alternatives in a series of pairwise comparisons, even if such a winner exists. For an explanation and illustration of the Condorcet voting paradox and cycling majorities, see, for example, HANNU NURMI, COMPARING VOTING SYSTEMS 12-14 (1987); WILLIAM H. RIKER, LIBERALISM AGAINST POPULISM 67-81 (1982); STEARNS, supra note 1, at 81-88. Suppose three Justices compose each of three Court factions J1, J2, and J3, and the factions have the following rank orderings across three alternative dispositions A (affirm), R (reverse), and D (dismiss) J1 J2 J3 A R D R D R D A A R is a Condorcet-winner; it will beat A (2-1) and D (2-1) by majority vote. According to the Court's unstructured process, R will emerge as the majority disposition if either factions J1 or J3 switch first from their top-ranked to their second-ranked disposition R. But D will emerge if faction J2 switches first to its second-ranked disposition D. If J2 is more concerned about breaking the impasse than are J1 and J3, or if J2 is more concerned about avoiding its third- ranked disposition than are J1 and J3, then J2 will switch first, and D rather than the Condorcet-winner R will emerge as the collective choice. In theory, at this point J1 could approach J2 and point out that both would prefer R to D, which they could achieve by agreeing that J2 would vote sincerely for R and J1 would vote strategically for R. Such a second-round of bargaining would thus lead back to the Condorcet-winner. But unless each faction reveals its entire set of rankings - and it is unclear how often this might happen - such a second-round of bargaining may never occur. Emergence of a Condorcet-winner thus depends on both the preference revelation and bargaining practices on the Court.
108. It is noteworthy that, given these incentives for strategic voting, the ultimate majority- disposition will not necessarily identify a "Condorcet-winner" that would beat all alternatives in a series of pairwise comparisons, even if such a winner exists. For an explanation and illustration of the Condorcet voting paradox and cycling majorities, see, for example, HANNU NURMI, COMPARING VOTING SYSTEMS 12-14 (1987); WILLIAM H. RIKER, LIBERALISM AGAINST POPULISM 67-81 (1982); STEARNS, supra note 1, at 81-88. Suppose three Justices compose each of three Court factions J1, J2, and J3, and the factions have the following rank orderings across three alternative dispositions A (affirm), R (reverse), and D (dismiss) J1 J2 J3 A R D R D R D A A R is a Condorcet-winner; it will beat A (2-1) and D (2-1) by majority vote. According to the Court's unstructured process, R will emerge as the majority disposition if either factions J1 or J3 switch first from their top-ranked to their second-ranked disposition R. But D will emerge if faction J2 switches first to its second-ranked disposition D. If J2 is more concerned about breaking the impasse than are J1 and J3, or if J2 is more concerned about avoiding its third-ranked disposition than are J1 and J3, then J2 will switch first, and D rather than the Condorcet-winner R will emerge as the collective choice. In theory, at this point J1 could approach J2 and point out that both would prefer R to D, which they could achieve by agreeing that J2 would vote sincerely for R and J1 would vote strategically for R. Such a second-round of bargaining would thus lead back to the Condorcet-winner. But unless each faction reveals its entire set of rankings - and it is unclear how often this might happen -such a second-round of bargaining may never occur. Emergence of a Condorcet-winner thus depends on both the preference revelation and bargaining practices on the Court.
109. Researching published opinions reveals only a handful of cases in which the Supreme Court has faced and resolved such an impasse. See supra note 52. But the Court may confront such an impasse far more frequently. Potential deadlocks might be revealed and then resolved at earlier stages in the opinion-writing process, when one faction agrees not only to switch votes on the disposition, but to join a second-best rule justifying its second-best disposition as well.
110. See, e.g., Cross, supra note 9, at 550 ("[T]he best strategic reason for producing a majority opinion may be the room that a plurality opinion leaves for interpretive incompetence or clever disobedience by the lower courts."); Davis & Reynolds, supra note 1, at 71-75 (plurality opinions often generate confusion about the law).
111. See, e.g., Cross, supra note 9, at 550 ("[T]he best strategic reason for producing a majority opinion may be the room that a plurality opinion leaves for interpretive incompetence or clever disobedience by the lower courts."); Davis & Reynolds, supra note 1, at 71-75 (plurality opinions often generate confusion about the law).
112. See Nichols v. United States, 511 U.S. 738, 746 (1994) (stating that lower court confusion in applying a splintered Supreme Court decision "is itself a reason for reexamining that decision").
113. See, e.g., LEARNED HAND, THE BILL OF RIGHTS 72 (1958) (arguing that a dissent "cancels the impact of monolithic solidarity on which the authority of a bench of judges so largely depends"); Archibald Cox, The Supreme Court, 1979 Term - Foreword: Freedom of Expression in the Burger Court, 94 HARV. L. REV. 1, 72 (1980) ("Continuous fragmentation could well diminish not only the influence of the Court but the ideal of the rule of law.").
114. See, e.g., LEARNED HAND, THE BILL OF RIGHTS 72 (1958) (arguing that a dissent "cancels the impact of monolithic solidarity on which the authority of a bench of judges so largely depends"); Archibald Cox, The Supreme Court, 1979 Term - Foreword: Freedom of Expression in the Burger Court, 94 HARV. L. REV. 1, 72 (1980) ("Continuous fragmentation could well diminish not only the influence of the Court but the ideal of the rule of law.").
115. See Ken Kimura, Note, A Legitimacy Model for the Interpretation of Plurality Decisions, 77 CORNELL L. REV. 1593, 1598 (1992) ("When two or more coalitions of concurring Justices reach the same outcome based on mutually exclusive legal rules, then that particular outcome has not been justified: it is merely the result of a chance happenstance, the meaningless intersection of conclusions."); cf. Pildes & Anderson, supra note 32, at 2157 ("Objeclive outcomes are not all that matter; the expressive significance of how those outcomes are reached matters as well.").
116. See Ken Kimura, Note, A Legitimacy Model for the Interpretation of Plurality Decisions, 77 CORNELL L. REV. 1593, 1598 (1992) ("When two or more coalitions of concurring Justices reach the same outcome based on mutually exclusive legal rules, then that particular outcome has not been justified: it is merely the result of a chance happenstance, the meaningless intersection of conclusions."); cf. Pildes & Anderson, supra note 32, at 2157 ("Objeclive outcomes are not all that matter; the expressive significance of how those outcomes are reached matters as well.").
117. Kornhauser & Sager, supra note 1, at 46.
118. See Marks v. United States, 430 U.S. 188, 193 (1977) ("When a fragmented court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds . . . .'") (citation omitted). For amplification of this "narrowest-grounds" rule, see Kornhauser & Sager, supra note 1, at 45-48; Mark Alan Thurmon, Note, When the Court Divides: Reconsidering the Precedential Value of 1 Supreme Court Plurality Decisions, 42 DUKE L.J. 419, 427-46 (1992).
119. See Marks v. United States, 430 U.S. 188, 193 (1977) ("When a fragmented court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds . . . .'") (citation omitted). For amplification of this "narrowest-grounds" rule, see Kornhauser & Sager, supra note 1, at 45-48; Mark Alan Thurmon, Note, When the Court Divides: Reconsidering the Precedential Value of 1 Supreme Court Plurality Decisions, 42 DUKE L.J. 419, 427-46 (1992).
120. See Marks v. United States, 430 U.S. 188, 193 (1977) ("When a fragmented court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds . . . .'") (citation omitted). For amplification of this "narrowest-grounds" rule, see Kornhauser & Sager, supra note 1, at 45-48; Mark Alan Thurmon, Note, When the Court Divides: Reconsidering the Precedential Value of 1 Supreme Court Plurality Decisions, 42 DUKE L.J. 419, 427-46 (1992).
121. Lower courts frequently have difficulty discerning what rule, if any, constitutes the narrowest grounds for the judgment; and the Supreme Court adds to this difficulty by generally not according conventional stare decisis weight to such narrowest grounds there may be. See Thurmon, supra note 60, at 436-38.
122. For example, in Time, Inc. v. Hill, 385 U.S. 374 (1967), Justices Black and Douglas concurred in Justice Brennan's opinion of the Court to form a five-Justice coalition. Each wrote separately to express his sincere disagreement with the majority's legal rule, but explained his decision to concur "in order for the Court to be able at this time to agree on an opinion in this important case based on the prevailing constitutional doctrine." 385 U.S. at 398 (Black and Douglas, JJ., concurring).
123. See, e.g., EPSTEIN & KNIGHT, supra note 5, at 96 (documenting that, in Nixon v. Fitzgerald, 457 U.S. 731 (1982), Justice Powell voted insincerely to forge a majority-opinion coalition, explaining that "[i]t is evident that a Court opinion is not assured if each of us remains with our first preference votes . . . . As I view the Nixon case as uniquely requiring a Court opinion, I am now prepared to defer to the wishes of you [Chief Justice Burger], Bill Rehnquist, and Sandra" in order to construct a single opinion of the Court); BERNARD SCHWARTZ, DECISION: How THE SUPREME COURT DECIDES CASES 21 (1996) (documenting that, in Irwin v. Veterans Administration, 498 U.S. 1075 (1991), Chief Justice Rehnquist voted insincerely to forge a majority-opinion coalition, explaining to his colleagues that "I prefer the position taken in the most recent circulation of my proposed opinion for the Court, but want very much to avoid a fractionated Court on this point. . . . If a majority prefers Nino's view, I will adopt it . . . . If there is some 'middle ground' that will attract a majority, I will even adopt that."). See generally EPSTEIN & KNIGHT, supra note 5, at 97 ("[M]any other cases illustrate the extent to which opinion writers will put aside their most preferred position to generate a definitive ruling of the court - and one that represents the best they feel they can do under the circumstances.").
124. See, e.g., EPSTEIN & KNIGHT, supra note 5, at 96 (documenting that, in Nixon v. Fitzgerald, 457 U.S. 731 (1982), Justice Powell voted insincerely to forge a majority-opinion coalition, explaining that "[i]t is evident that a Court opinion is not assured if each of us remains with our first preference votes . . . . As I view the Nixon case as uniquely requiring a Court opinion, I am now prepared to defer to the wishes of you [Chief Justice Burger], Bill Rehnquist, and Sandra" in order to construct a single opinion of the Court); BERNARD SCHWARTZ, DECISION: How THE SUPREME COURT DECIDES CASES 21 (1996) (documenting that, in Irwin v. Veterans Administration, 498 U.S. 1075 (1991), Chief Justice Rehnquist voted insincerely to forge a majority-opinion coalition, explaining to his colleagues that "I prefer the position taken in the most recent circulation of my proposed opinion for the Court, but want very much to avoid a fractionated Court on this point. . . . If a majority prefers Nino's view, I will adopt it . . . . If there is some 'middle ground' that will attract a majority, I will even adopt that."). See generally EPSTEIN & KNIGHT, supra note 5, at 97 ("[M]any other cases illustrate the extent to which opinion writers will put aside their most preferred position
125. See, e.g., EPSTEIN & KNIGHT, supra note 5, at 96 (documenting that, in Nixon v. Fitzgerald, 457 U.S. 731 (1982), Justice Powell voted insincerely to forge a majority-opinion coalition, explaining that "[i]t is evident that a Court opinion is not assured if each of us remains with our first preference votes . . . . As I view the Nixon case as uniquely requiring a Court opinion, I am now prepared to defer to the wishes of you [Chief Justice Burger], Bill Rehnquist, and Sandra" in order to construct a single opinion of the Court); BERNARD SCHWARTZ, DECISION: How THE SUPREME COURT DECIDES CASES 21 (1996) (documenting that, in Irwin v. Veterans Administration, 498 U.S. 1075 (1991), Chief Justice Rehnquist voted insincerely to forge a majority-opinion coalition, explaining to his colleagues that "I prefer the position taken in the most recent circulation of my proposed opinion for the Court, but want very much to avoid a fractionated Court on this point. . . . If a majority prefers Nino's view, I will adopt it . . . . If there is some 'middle ground' that will attract a majority, I will even adopt that."). See generally EPSTEIN & KNIGHT, supra note 5, at 97 ("[M]any other cases illustrate the extent to which opinion writers will put aside their most preferred position to generate a definitive ruling of the court - and one that represents the best they feel they can do under the circumstances.").
126. See, e.g., EPSTEIN & KNIGHT, supra note 5, at 96 (documenting that, in Nixon v. Fitzgerald, 457 U.S. 731 (1982), Justice Powell voted insincerely to forge a majority-opinion coalition, explaining that "[i]t is evident that a Court opinion is not assured if each of us remains with our first preference votes . . . . As I view the Nixon case as uniquely requiring a Court opinion, I am now prepared to defer to the wishes of you [Chief Justice Burger], Bill Rehnquist, and Sandra" in order to construct a single opinion of the Court); BERNARD SCHWARTZ, DECISION: How THE SUPREME COURT DECIDES CASES 21 (1996) (documenting that, in Irwin v. Veterans Administration, 498 U.S. 1075 (1991), Chief Justice Rehnquist voted insincerely to forge a majority-opinion coalition, explaining to his colleagues that "I prefer the position taken in the most recent circulation of my proposed opinion for the Court, but want very much to avoid a fractionated Court on this point. . . . If a majority prefers Nino's view, I will adopt it . . . . If there is some 'middle ground' that will attract a majority, I will even adopt that."). See generally EPSTEIN & KNIGHT, supra note 5, at 97 ("[M]any other cases illustrate the extent to which opinion writers will put aside their most preferred position to generate a definitive ruling of the court - and one that represents the best they feel they can do under the circumstances.").
127. See, e.g., EPSTEIN & KNIGHT, supra note 5, at 96 (documenting that, in Nixon v. Fitzgerald, 457 U.S. 731 (1982), Justice Powell voted insincerely to forge a majority-opinion coalition, explaining that "[i]t is evident that a Court opinion is not assured if each of us remains with our first preference votes . . . . As I view the Nixon case as uniquely requiring a Court opinion, I am now prepared to defer to the wishes of you [Chief Justice Burger], Bill Rehnquist, and Sandra" in order to construct a single opinion of the Court); BERNARD SCHWARTZ, DECISION: How THE SUPREME COURT DECIDES CASES 21 (1996) (documenting that, in Irwin v. Veterans Administration, 498 U.S. 1075 (1991), Chief Justice Rehnquist voted insincerely to forge a majority-opinion coalition, explaining to his colleagues that "I prefer the position taken in the most recent circulation of my proposed opinion for the Court, but want very much to avoid a fractionated Court on this point. . . . If a majority prefers Nino's view, I will adopt it . . . . If there is some 'middle ground' that will attract a majority, I will even adopt that."). See generally EPSTEIN & KNIGHT, supra note 5, at 97 ("[M]any other cases illustrate the extent to which opinion writers will put aside their most preferred position to generate a definitive ruling of the court - and one that represents the best they feel they can do under the circumstances.").
128. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting). As explained earlier, see supra text accompanying notes 42-43, a Justice engaged in the collective enterprise of "practical reason" might deviate from her autonomous views and defer to those of her colleagues as part of her sincere judgment formation, rather than a desire to secure competing institutional values. In any particular case, however, a Justice will know for herself whether she perceives a tension between her sincere substantive view (however reached) and her desire to secure institutional values. If so, she faces the question of strategic trade-off discussed in the text.
129. Duncan Black's "median voter theorem" predicts that, if decisionmakers' preferences are single-peaked, then the outcome of a majoritarian voting protocol will gravitate toward the median voter's position, since her vote is necessary to secure a majority. See DUNCAN BLACK, THE THEORY OF COMMITTEES AND ELECTIONS 19-24 (lain McLean et al. eds., rev. 2d ed. 1998); DENNIS C. MUELLER, PUBLIC CHOICE II 64-66 (1989) (describing theorem in both intuitive and quantitative terms).
130. Duncan Black's "median voter theorem" predicts that, if decisionmakers' preferences are single-peaked, then the outcome of a majoritarian voting protocol will gravitate toward the median voter's position, since her vote is necessary to secure a majority. See DUNCAN BLACK, THE THEORY OF COMMITTEES AND ELECTIONS 19-24 (lain McLean et al. eds., rev. 2d ed. 1998); DENNIS C. MUELLER, PUBLIC CHOICE II 64-66 (1989) (describing theorem in both intuitive and quantitative terms).
131. See Gulati & McCauliff, supra note 13, at 188 ("Individual judges can and do dominate the courts they sit on through personality, political savvy, the ability to build consensus, and, on occasion, sheer intellectual ability.").
132. Justice Scalia, for example, might be so wedded to bright-line rules that, after his sincere support for a bright-line conservative rule, he might in theory prefer a bright-line liberal rule to a moderate balancing test. For the converse proposition, see Fallon, supra note 8, at 82-83 (observing that Justices who disagree about what determinate rule to apply may reach agreement on a balancing test).
133. See supra note 53. Admittedly, it is difficult to identify clear examples where two wing factions eschewed the middle and joined to forge a coalition. See STEARNS, supra note 1, at 153 (asserting that "strategic interaction between and among the Justices almost without exception appears to involve moves toward the median position on the Court"). The fact that this phenomenon appears uncommon suggests that Justices rarely perceive the institutional benefits of majority coalition formation as sufficiently strong to justify large deviations from the ideal substantive rule; Justices tend to be willing to make small substantive accommodations (by moving toward the middle) for institutional reasons, but are not willing to make large substantive sacrifices (by moving to the other end). Professor Richard Fallon has recently advanced a different hypothesis: if there is an existing doctrinal structure, any forged consensus will likely converge around that doctrine because precedent "reflect[s] the result best situated to win majority acceptance as a reasonable accommodation of competing considerations." See Fallon, supra note 8, at 110.
134. See supra note 53. Admittedly, it is difficult to identify clear examples where two wing factions eschewed the middle and joined to forge a coalition. See STEARNS, supra note 1, at 153 (asserting that "strategic interaction between and among the Justices almost without exception appears to involve moves toward the median position on the Court"). The fact that this phenomenon appears uncommon suggests that Justices rarely perceive the institutional benefits of majority coalition formation as sufficiently strong to justify large deviations from the ideal substantive rule; Justices tend to be willing to make small substantive accommodations (by moving toward the middle) for institutional reasons, but are not willing to make large substantive sacrifices (by moving to the other end). Professor Richard Fallon has recently advanced a different hypothesis: if there is an existing doctrinal structure, any forged consensus will likely converge around that doctrine because precedent "reflect[s] the result best situated to win majority acceptance as a reasonable accommodation of competing considerations." See Fallon, supra note 8, at 110.
135. For some recent noteworthy examples, see United States v. Nixon, 418 U.S. 683 (1974); Cooper v. Aaron, 358 U.S. 1 (1958) (per curiam); and Brown v. Board of Education, 347 U.S. 483 (1954). For a case study, see Dennis J. Hutchinson, Unanimity and Desegregation: Decisionmaking in the Supreme Court, 1948-1958, 68 GEO. L.J. 1 (1979). Coordinated voting to produce unanimous opinions was more common in earlier times, when dissents and especially separate concurrences were far less frequent than they are today. See Karl M. ZoBell, Division of Opinion in the Supreme Court: A History of Judicial Disintegration, 44 CORNELL L.Q. 186, 203-09 & tbl.I (1959).
136. For some recent noteworthy examples, see United States v. Nixon, 418 U.S. 683 (1974); Cooper v. Aaron, 358 U.S. 1 (1958) (per curiam); and Brown v. Board of Education, 347 U.S. 483 (1954). For a case study, see Dennis J. Hutchinson, Unanimity and Desegregation: Decisionmaking in the Supreme Court, 1948-1958, 68 GEO. L.J. 1 (1979). Coordinated voting to produce unanimous opinions was more common in earlier times, when dissents and especially separate concurrences were far less frequent than they are today. See Karl M. ZoBell, Division of Opinion in the Supreme Court: A History of Judicial Disintegration, 44 CORNELL L.Q. 186, 203-09 & tbl.I (1959).
137. For some recent noteworthy examples, see United States v. Nixon, 418 U.S. 683 (1974); Cooper v. Aaron, 358 U.S. 1 (1958) (per curiam); and Brown v. Board of Education, 347 U.S. 483 (1954). For a case study, see Dennis J. Hutchinson, Unanimity and Desegregation: Decisionmaking in the Supreme Court, 1948-1958, 68 GEO. L.J. 1 (1979). Coordinated voting to produce unanimous opinions was more common in earlier times, when dissents and especially separate concurrences were far less frequent than they are today. See Karl M. ZoBell, Division of Opinion in the Supreme Court: A History of Judicial Disintegration, 44 CORNELL L.Q. 186, 203-09 & tbl.I (1959).
138. For some recent noteworthy examples, see United States v. Nixon, 418 U.S. 683 (1974); Cooper v. Aaron, 358 U.S. 1 (1958) (per curiam); and Brown v. Board of Education, 347 U.S. 483 (1954). For a case study, see Dennis J. Hutchinson, Unanimity and Desegregation: Decisionmaking in the Supreme Court, 1948-1958, 68 GEO. L.J. 1 (1979). Coordinated voting to produce unanimous opinions was more common in earlier times, when dissents and especially separate concurrences were far less frequent than they are today. See Karl M. ZoBell, Division of Opinion in the Supreme Court: A History of Judicial Disintegration, 44 CORNELL L.Q. 186, 203-09 & tbl.I (1959).
139. For some recent noteworthy examples, see United States v. Nixon, 418 U.S. 683 (1974); Cooper v. Aaron, 358 U.S. 1 (1958) (per curiam); and Brown v. Board of Education, 347 U.S. 483 (1954). For a case study, see Dennis J. Hutchinson, Unanimity and Desegregation: Decisionmaking in the Supreme Court, 1948-1958, 68 GEO. L.J. 1 (1979). Coordinated voting to produce unanimous opinions was more common in earlier times, when dissents and especially separate concurrences were far less frequent than they are today. See Karl M. ZoBell, Division of Opinion in the Supreme Court: A History of Judicial Disintegration, 44 CORNELL L.Q. 186, 203-09 & tbl.I (1959).
140. See, e.g., EPSTEIN & KNIGHT, supra note 5, at 106; Davis & Reynolds, supra note 1, at 61-63.
141. See, e.g., EPSTEIN & KNIGHT, supra note 5, at 106; Davis & Reynolds, supra note 1, at 61-63.
142. See Cross, supra note 9, at 554-55. Chief Justice Marshall institutionalized the concept of a unanimous "opinion of the Court" to replace the traditional issuance of seriatim opinions precisely to enhance the respect and hence authority of the Court. See ZoBell, supra note 69, at 192-95.
143. See Cross, supra note 9, at 554-55. Chief Justice Marshall institutionalized the concept of a unanimous "opinion of the Court" to replace the traditional issuance of seriatim opinions precisely to enhance the respect and hence authority of the Court. See ZoBell, supra note 69, at 192-95.
144. Even if the Justices' preferences are single-peaked, the unanimous choice will not necessarily converge on the median voter's position, see supra note 65 and accompanying text, because that voter no longer holds a unique bargaining position, and thus Black's median voter theorem does not apply. See David A. Skeel, Jr., The Unanimity Norm in Delaware Corporate Law, 83 VA. L. REV. 127, 153-54 & n.79 (1997) (suggesting as a "rough approximation" that unanimity will converge on the mean rather than the median position). Indeed, a strongly convicted Justice with outlier views might draw the others to her, if she is sufficiently entrenched and they are sufficiently driven to forge a unanimous coalition. In theory, unanimity might even alter the disposition of the case, in addition to the legal rule articulated, as compared to the outcome under majority rule.
145. Bare-majority coalitions may well command weaker stare decisis respect, and they are more susceptible to overruling due to fluctuating personnel. See, e.g., EPSTEIN & KNIGHT, supra note 5, at 106; Saul Brenner et al., Increasing the Size of Minimum Winning Original Coalitions on the Warren Court, 23 POLITY 309, 309 (1990). Moreover, bare-majority coalitions might invite greater lower court circumvention efforts than large coalitions. See EPSTEIN & KNIGHT, supra note 5, at 42 n.1.
146. Bare-majority coalitions may well command weaker stare decisis respect, and they are more susceptible to overruling due to fluctuating personnel. See, e.g., EPSTEIN & KNIGHT, supra note 5, at 106; Saul Brenner et al., Increasing the Size of Minimum Winning Original Coalitions on the Warren Court, 23 POLITY 309, 309 (1990). Moreover, bare-majority coalitions might invite greater lower court circumvention efforts than large coalitions. See EPSTEIN & KNIGHT, supra note 5, at 42 n.1.
147. Bare-majority coalitions may well command weaker stare decisis respect, and they are more susceptible to overruling due to fluctuating personnel. See, e.g., EPSTEIN & KNIGHT, supra note 5, at 106; Saul Brenner et al., Increasing the Size of Minimum Winning Original Coalitions on the Warren Court, 23 POLITY 309, 309 (1990). Moreover, bare-majority coalitions might invite greater lower court circumvention efforts than large coalitions. See EPSTEIN & KNIGHT, supra note 5, at 42 n.1.
148. Of course, such a Justice could just as easily save time by issuing a one-sentence opinion concurring in the judgment without explanation, rather than joining an opinion that does not reflect her sincere position. Not long ago this was common practice. See, e.g., Hansberry v. Lee, 311 U.S. 32, 46 (1940).
149. Some commentators have suggested that insincere coalition-formation is counter-productive to the extent it merely hides fissures within the coalition that will emerge later in related cases, thus decreasing the predictability of future legal developments. See, e.g., Earl M. Maltz, The Concept of the Doctrine of the Court in Constitutional Law, 16 GA. L. REV. 357, 401-03 (1982); Antonin Scalia, The Dissenting Opinion, 1994 J. SUP. CT. HIST. 33, 35, 38; Skeel, supra note 72, at 148 & n.61. A Justice unwilling to pledge future fidelity to the rule she would join in the Instant Case might view such a joinder as compromising such predictability, and hence as institutionally counterproductive in the long run. Similarly, if Justices vote insincerely to form unanimous coalitions too frequently, these apparent agreements may come to be viewed as fake, and therefore the signaling value of such coordination will decline. For a strategically inclined Justice, then, this gambit contains its own self-dampening mechanism: the Justice would want to cap the frequency of coordinated unanimity in order to preserve its instrumental value.
150. Some commentators have suggested that insincere coalition-formation is counter- productive to the extent it merely hides fissures within the coalition that will emerge later in related cases, thus decreasing the predictability of future legal developments. See, e.g., Earl M. Maltz, The Concept of the Doctrine of the Court in Constitutional Law, 16 GA. L. REV. 357, 401-03 (1982); Antonin Scalia, The Dissenting Opinion, 1994 J. SUP. CT. HIST. 33, 35, 38; Skeel, supra note 72, at 148 & n.61. A Justice unwilling to pledge future fidelity to the rule she would join in the Instant Case might view such a joinder as compromising such predictability, and hence as institutionally counterproductive in the long run. Similarly, if Justices vote insincerely to form unanimous coalitions too frequently, these apparent agreements may come to be viewed as fake, and therefore the signaling value of such coordination will decline. For a strategically inclined Justice, then, this gambit contains its own self-dampening mechanism: the Justice would want to cap the frequency of coordinated unanimity in order to preserve its instrumental value.
151. Some commentators have suggested that insincere coalition-formation is counter- productive to the extent it merely hides fissures within the coalition that will emerge later in related cases, thus decreasing the predictability of future legal developments. See, e.g., Earl M. Maltz, The Concept of the Doctrine of the Court in Constitutional Law, 16 GA. L. REV. 357, 401-03 (1982); Antonin Scalia, The Dissenting Opinion, 1994 J. SUP. CT. HIST. 33, 35, 38; Skeel, supra note 72, at 148 & n.61. A Justice unwilling to pledge future fidelity to the rule she would join in the Instant Case might view such a joinder as compromising such predictability, and hence as institutionally counterproductive in the long run. Similarly, if Justices vote insincerely to form unanimous coalitions too frequently, these apparent agreements may come to be viewed as fake, and therefore the signaling value of such coordination will decline. For a strategically inclined Justice, then, this gambit contains its own self-dampening mechanism: the Justice would want to cap the frequency of coordinated unanimity in order to preserve its instrumental value.
152. Interestingly, while the text discusses situations in which a Justice is willing to vote insincerely to forge a desired coalition, there are situations in which a Justice might be willing to vote sincerely only if doing so would forge a desired coalition. First, a Justice might want to advocate sincere rule X if and only if the rule were adopted by (at least) a five-member majority-opinion coalition. This stance would reflect an unwillingness to express X in a "wasted" vote that might appear idiosyncratic and hence destabilizing. Such a Justice would communicate this stance by circulating a "Join-Four" memorandum, indicating her willingness to join four colleagues in the proposed opinion. For expression of such a sentiment in a published opinion, see Bellotti v. Baird, 443 U.S. 622, 651-52 (1979) (Rehnquist, J., concurring) (expressing disapproval of existing precedent but also willingness to follow it until four colleagues join him in overruling it). Second, a Justice might want to advocate sincere rule X if and only if the rule were adopted by an (at least) six-member majority-opinion coalition. This stance would reflect a desire to have rule X prevail only in a supermajority rather than in a bare-majority victory, based on the concern that adoption of this particular rule by a bare majority would undermine institutional values. For example, a Justice might want to overrule a landmark precedent (say, Roe v. Wade), but fear that doing so by a 5-4 majority would make the decision seem too "politicized" or otherwise compromise its popular reception - better to wait for a supermajority so as to act with greater perceived authority. Such a Justice would communicate this stance by circulating a "Join-Five" memorandum, indicating her willingness to join five colleagues in the proposed opinion. She would thus thwart a majority coalition willing to adopt her sincere rule if only four colleagues were willing to join with her. See BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN 406 (1979) (observing that Justice Stewart had an unwritten policy not to join Nixon-appointed Justices as the fifth vote in favor of overruling a Warren Court precedent, even if he had dissented in the earlier case).
153. Interestingly, while the text discusses situations in which a Justice is willing to vote insincerely to forge a desired coalition, there are situations in which a Justice might be willing to vote sincerely only if doing so would forge a desired coalition. First, a Justice might want to advocate sincere rule X if and only if the rule were adopted by (at least) a five-member majority-opinion coalition. This stance would reflect an unwillingness to express X in a "wasted" vote that might appear idiosyncratic and hence destabilizing. Such a Justice would communicate this stance by circulating a "Join-Four" memorandum, indicating her willingness to join four colleagues in the proposed opinion. For expression of such a sentiment in a published opinion, see Bellotti v. Baird, 443 U.S. 622, 651- 52 (1979) (Rehnquist, J., concurring) (expressing disapproval of existing precedent but also willingness to follow it until four colleagues join him in overruling it). Second, a Justice might want to advocate sincere rule X if and only if the rule were adopted by an (at least) six-member majority-opinion coalition. This stance would reflect a desire to have rule X prevail only in a supermajority rather than in a bare-majority victory, based on the concern that adoption of this particular rule by a bare majority would undermine institutional values. For example, a Justice might want to overrule a landmark precedent (say, Roe v. Wade), but fear that doing so by a 5-4 majority would make the decision seem too "politicized" or otherwise compromise its popular reception - better to wait for a supermajority so as to act with greater perceived authority. Such a Justice would communicate this stance by circulating a "Join-Five" memorandum, indicating her willingness to join five colleagues in the proposed opinion. She would thus thwart a majority coalition willing to adopt her sincere rule if only four colleagues were willing to join with her. See BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN 406 (1979) (observing that Justice Stewart had an unwritten policy not to join Nixon-appointed Justices as the fifth vote in favor of overruling a Warren Court precedent, even if he had dissented in the earlier case).
154. See Saul Levmore, Parliamentary Law, Majority Decisionmaking, and the Voting Paradox, 75 VA. L. REV. 971, 1012-23 (1989).
155. In a handful of cases involving two discrete issues, a Justice who foun herself in the minority on Issue One treated the majority's position on that issue as binding, and used it as a baseline from which to consider Issue Two. For example, in Commissioner v. Davis, 301 U.S. 619 (1937), Justice Cardozo authored an opinion for the Court joined by six Justices rejecting a challenge to the Social Security Act on the merits. Cardozo stated that he and three others believed the suit was nonjusticiable, but observed that "a majority of the court have reached a different conclusion," and "[u]nder the compulsion of that [majority] ruling, the merits are now here." 301 U.S. at 639-40; see Suzanna Sherry, Justice O'Connor's Dilemma: The Baseline Question, 39 WM. & MARY L. REV. 865, 882-90 (1998) (describing similar phenomenon in five other cases, including two in which a Justice's deference to a majoritarian baseline on one issue changed both his and consequently the Court's collective vote on the disposition). In such instances, the baseline-adhering Justices (but not necessarily the others) acted as if the case should be decided through two separate, issue-by-issue votes. This practice is clearly exceptional, however. See, e.g., Hartnett, supra note 51, at 136-141; Kornhauser & Sager, supra note 1, at 20. In other words, in multiple-issue cases Justices generally vote once, in a manner consistent with their internal resolution of all of the issues presented. Of course, when an identical issue arises in a Future Case, the doctrine of stare decisis holds that a Justice should, at least presumptively, defer to the prior majority rather than to her own dissenting position. But the normative justifications for stare decisis, see supra text accompanying notes 28-30, do not similarly impel a Justice's deference to majoritarian resolutions of separate issues in the same case. Cf. Kornhauser, Modeling Collegial Courts II, supra note 22, at 452 n.15 ("[A] practice that requires judges to respect decisions reached on issues in previous cases does not necessarily imply that . . . each judge ought to respect the [majoritarian] resolution of each issue in the case as it is decided."). This may explain why insincere deference to a majoritarian position within a single case may strike some as vaguely troubling, whereas deference to a majoritarian position established by a Prior Case is presumptively appropriate. To put the point another way, the relational judgment criterion of consistency becomes uniquely relevant in the two-case scenario, thus becoming part of the Justice's "sincere" assessment in Case Two.
156. In a handful of cases involving two discrete issues, a Justice who foun herself in the minority on Issue One treated the majority's position on that issue as binding, and used it as a baseline from which to consider Issue Two. For example, in Commissioner v. Davis, 301 U.S. 619 (1937), Justice Cardozo authored an opinion for the Court joined by six Justices rejecting a challenge to the Social Security Act on the merits. Cardozo stated that he and three others believed the suit was nonjusticiable, but observed that "a majority of the court have reached a different conclusion," and "[u]nder the compulsion of that [majority] ruling, the merits are now here." 301 U.S. at 639-40; see Suzanna Sherry, Justice O'Connor's Dilemma: The Baseline Question, 39 WM. & MARY L. REV. 865, 882-90 (1998) (describing similar phenomenon in five other cases, including two in which a Justice's deference to a majoritarian baseline on one issue changed both his and consequently the Court's collective vote on the disposition). In such instances, the baseline-adhering Justices (but not necessarily the others) acted as if the case should be decided through two separate, issue-by-issue votes. This practice is clearly exceptional, however. See, e.g., Hartnett, supra note 51, at 136-141; Kornhauser & Sager, supra note 1, at 20. In other words, in multiple-issue cases Justices generally vote once, in a manner consistent with their internal resolution of all of the issues presented. Of course, when an identical issue arises in a Future Case, the doctrine of stare decisis holds that a Justice should, at least presumptively, defer to the prior majority rather than to her own dissenting position. But the normative justifications for stare decisis, see supra text accompanying notes 28-30, do not similarly impel a Justice's deference to majoritarian resolutions of separate issues in the same case. Cf. Kornhauser, Modeling Collegial Courts II, supra note 22, at 452 n.15 ("[A] practice that requires judges to respect decisions reached on issues in previous cases does not necessarily imply that . . . each judge ought to respect the [majoritarian] resolution of each issue in the case as it is decided."). This may explain why insincere deference to a majoritarian position within a single case may strike some as vaguely troubling, whereas deference to a majoritarian position established by a Prior Case is presumptively appropriate. To put the point another way, the relational judgment criterion of consistency becomes uniquely relevant in the two-case scenario, thus becoming part of the Justice's "sincere" assessment in Case Two.
157. In a handful of cases involving two discrete issues, a Justice who foun herself in the minority on Issue One treated the majority's position on that issue as binding, and used it as a baseline from which to consider Issue Two. For example, in Commissioner v. Davis, 301 U.S. 619 (1937), Justice Cardozo authored an opinion for the Court joined by six Justices rejecting a challenge to the Social Security Act on the merits. Cardozo stated that he and three others believed the suit was nonjusticiable, but observed that "a majority of the court have reached a different conclusion," and "[u]nder the compulsion of that [majority] ruling, the merits are now here." 301 U.S. at 639-40; see Suzanna Sherry, Justice O'Connor's Dilemma: The Baseline Question, 39 WM. & MARY L. REV. 865, 882-90 (1998) (describing similar phenomenon in five other cases, including two in which a Justice's deference to a majoritarian baseline on one issue changed both his and consequently the Court's collective vote on the disposition). In such instances, the baseline-adhering Justices (but not necessarily the others) acted as if the case should be decided through two separate, issue-by-issue votes. This practice is clearly exceptional, however. See, e.g., Hartnett, supra note 51, at 136-141; Kornhauser & Sager, supra note 1, at 20. In other words, in multiple-issue cases Justices generally vote once, in a manner consistent with their internal resolution of all of the issues presented. Of course, when an identical issue arises in a Future Case, the doctrine of stare decisis holds that a Justice should, at least presumptively, defer to the prior majority rather than to her own dissenting position. But the normative justifications for stare decisis, see supra text accompanying notes 28-30, do not similarly impel a Justice's deference to majoritarian resolutions of separate issues in the same case. Cf. Kornhauser, Modeling Collegial Courts II, supra note 22, at 452 n.15 ("[A] practice that requires judges to respect decisions reached on issues in previous cases does not necessarily imply that . . . each judge ought to respect the [majoritarian] resolution of each issue in the case as it is decided."). This may explain why insincere deference to a majoritarian position within a single case may strike some as vaguely troubling, whereas deference to a majoritarian position established by a Prior Case is presumptively appropriate. To put the point another way, the relational judgment criterion of consistency becomes uniquely relevant in the two-case scenario, thus becoming part of the Justice's "sincere" assessment in Case Two.
158. In a handful of cases involving two discrete issues, a Justice who foun herself in the minority on Issue One treated the majority's position on that issue as binding, and used it as a baseline from which to consider Issue Two. For example, in Commissioner v. Davis, 301 U.S. 619 (1937), Justice Cardozo authored an opinion for the Court joined by six Justices rejecting a challenge to the Social Security Act on the merits. Cardozo stated that he and three others believed the suit was nonjusticiable, but observed that "a majority of the court have reached a different conclusion," and "[u]nder the compulsion of that [majority] ruling, the merits are now here." 301 U.S. at 639-40; see Suzanna Sherry, Justice O'Connor's Dilemma: The Baseline Question, 39 WM. & MARY L. REV. 865, 882-90 (1998) (describing similar phenomenon in five other cases, including two in which a Justice's deference to a majoritarian baseline on one issue changed both his and consequently the Court's collective vote on the disposition). In such instances, the baseline-adhering Justices (but not necessarily the others) acted as if the case should be decided through two separate, issue-by-issue votes. This practice is clearly exceptional, however. See, e.g., Hartnett, supra note 51, at 136-141; Kornhauser & Sager, supra note 1, at 20. In other words, in multiple-issue cases Justices generally vote once, in a manner consistent with their internal resolution of all of the issues presented. Of course, when an identical issue arises in a Future Case, the doctrine of stare decisis holds that a Justice should, at least presumptively, defer to the prior majority rather than to her own dissenting position. But the normative justifications for stare decisis, see supra text accompanying notes 28-30, do not similarly impel a Justice's deference to majoritarian resolutions of separate issues in the same case. Cf. Kornhauser, Modeling Collegial Courts II, supra note 22, at 452 n.15 ("[A] practice that requires judges to respect decisions reached on issues in previous cases does not necessarily imply that . . . each judge ought to respect the [majoritarian] resolution of each issue in the case as it is decided."). This may explain why insincere deference to a majoritarian position within a single case may strike some as vaguely troubling, whereas deference to a majoritarian position established by a Prior Case is presumptively appropriate. To put the point another way, the relational judgment criterion of consistency becomes uniquely relevant in the two-case scenario, thus becoming part of the Justice's "sincere" assessment in Case Two.
159. In a handful of cases involving two discrete issues, a Justice who foun herself in the minority on Issue One treated the majority's position on that issue as binding, and used it as a baseline from which to consider Issue Two. For example, in Commissioner v. Davis, 301 U.S. 619 (1937), Justice Cardozo authored an opinion for the Court joined by six Justices rejecting a challenge to the Social Security Act on the merits. Cardozo stated that he and three others believed the suit was nonjusticiable, but observed that "a majority of the court have reached a different conclusion," and "[u]nder the compulsion of that [majority] ruling, the merits are now here." 301 U.S. at 639-40; see Suzanna Sherry, Justice O'Connor's Dilemma: The Baseline Question, 39 WM. & MARY L. REV. 865, 882-90 (1998) (describing similar phenomenon in five other cases, including two in which a Justice's deference to a majoritarian baseline on one issue changed both his and consequently the Court's collective vote on the disposition). In such instances, the baseline-adhering Justices (but not necessarily the others) acted as if the case should be decided through two separate, issue-by-issue votes. This practice is clearly exceptional, however. See, e.g., Hartnett, supra note 51, at 136-141; Kornhauser & Sager, supra note 1, at 20. In other words, in multiple-issue cases Justices generally vote once, in a manner consistent with their internal resolution of all of the issues presented. Of course, when an identical issue arises in a Future Case, the doctrine of stare decisis holds that a Justice should, at least presumptively, defer to the prior majority rather than to her own dissenting position. But the normative justifications for stare decisis, see supra text accompanying notes 28-30, do not similarly impel a Justice's deference to majoritarian resolutions of separate issues in the same case. Cf. Kornhauser, Modeling Collegial Courts II, supra note 22, at 452 n.15 ("[A] practice that requires judges to respect decisions reached on issues in previous cases does not necessarily imply that . . . each judge ought to respect the [majoritarian] resolution of each issue in the case as it is decided."). This may explain why insincere deference to a majoritarian position within a single case may strike some as vaguely troubling, whereas deference to a majoritarian position established by a Prior Case is presumptively appropriate. To put the point another way, the relational judgment criterion of consistency becomes uniquely relevant in the two-case scenario, thus becoming part of the Justice's "sincere" assessment in Case Two.
160. In a handful of cases involving two discrete issues, a Justice who foun herself in the minority on Issue One treated the majority's position on that issue as binding, and used it as a baseline from which to consider Issue Two. For example, in Commissioner v. Davis, 301 U.S. 619 (1937), Justice Cardozo authored an opinion for the Court joined by six Justices rejecting a challenge to the Social Security Act on the merits. Cardozo stated that he and three others believed the suit was nonjusticiable, but observed that "a majority of the court have reached a different conclusion," and "[u]nder the compulsion of that [majority] ruling, the merits are now here." 301 U.S. at 639-40; see Suzanna Sherry, Justice O'Connor's Dilemma: The Baseline Question, 39 WM. & MARY L. REV. 865, 882-90 (1998) (describing similar phenomenon in five other cases, including two in which a Justice's deference to a majoritarian baseline on one issue changed both his and consequently the Court's collective vote on the disposition). In such instances, the baseline-adhering Justices (but not necessarily the others) acted as if the case should be decided through two separate, issue-by-issue votes. This practice is clearly exceptional, however. See, e.g., Hartnett, supra note 51, at 136-141; Kornhauser & Sager, supra note 1, at 20. In other words, in multiple-issue cases Justices generally vote once, in a manner consistent with their internal resolution of all of the issues presented. Of course, when an identical issue arises in a Future Case, the doctrine of stare decisis holds that a Justice should, at least presumptively, defer to the prior majority rather than to her own dissenting position. But the normative justifications for stare decisis, see supra text accompanying notes 28-30, do not similarly impel a Justice's deference to majoritarian resolutions of separate issues in the same case. Cf. Kornhauser, Modeling Collegial Courts II, supra note 22, at 452 n.15 ("[A] practice that requires judges to respect decisions reached on issues in previous cases does not necessarily imply that . . . each judge ought to respect the [majoritarian] resolution of each issue in the case as it is decided."). This may explain why insincere deference to a majoritarian position within a single case may strike some as vaguely troubling, whereas deference to a majoritarian position established by a Prior Case is presumptively appropriate. To put the point another way, the relational judgment criterion of consistency becomes uniquely relevant in the two-case scenario, thus becoming part of the Justice's "sincere" assessment in Case Two.
161. See, e.g., David Post & Steven C. Salop, Rowing Against the Tidewater: A Theory of Voting by Multijudge Panels, 80 GEO. L.J. 743, 750-58 (1992) (illustrating how, if cases were resolved through an issue-by-issue vote aggregation, a Justice with a strong preference for a particular outcome might promote that outcome by voting strategically on one of the component issues); see also STEARNS, supra note 1, at 189-90 (arguing that the desire to avoid incentives and opportunities for such strategic behavior underlies the decision to employ outcome voting rather than issue-by-issue voting).
162. See, e.g., David Post & Steven C. Salop, Rowing Against the Tidewater: A Theory of Voting by Multijudge Panels, 80 GEO. L.J. 743, 750-58 (1992) (illustrating how, if cases were resolved through an issue-by-issue vote aggregation, a Justice with a strong preference for a particular outcome might promote that outcome by voting strategically on one of the component issues); see also STEARNS, supra note 1, at 189-90 (arguing that the desire to avoid incentives and opportunities for such strategic behavior underlies the decision to employ outcome voting rather than issue-by-issue voting).
163. See, e.g., Kornhauser & Sager, supra note 1, at 53.
164. Suppose three factions have the following sincere views. J1 believes the Court has jurisdiction, and should affirm. J2 believes the Court has jurisdiction, and should reverse. J3 believes the Court lacks jurisdiction, but if the Court had jurisdiction it should reverse. If the Court engaged in issue-by-issue voting and the factions voted sincerely, then the Court would assert jurisdiction (supported by J1 & J2) and reverse (supported by J2 & J3). J1 could avoid what she perceives as an erroneous merits decision by strategically voting against jurisdiction; then the collective outcome would be a jurisdictional dismissal (supported sincerely by J3 and strategically by J1). But the Court in fact votes by outcome rather than issue-by-issue. If each faction votes sincerely, the Court ends up deadlocked among the three possible outcomes: affirm (J1), reverse (J2), and dismiss (J3). See supra section II.B.1 (discussing the problem of initially deadlocked cases). J1 might decide to vote strategically for dismissal (to avoid the possibility that J3 will switch over to J1's third-ranked outcome of reversal); but she then forgoes the possibility that either J2 or J3 will switch over to her top-ranked outcome of affirmance. Her strategic response depends on her assessment of her colleagues' strategic responses. Thus the oft-heard scenario - voting insincerely against jurisdiction to avoid a bad merits decision -is more complicated than it first sounds. Cf. H.W. PERRY, JR., DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT 198-207 (1991) (discussing the occasional strategic practice of "defensive denials" of cert, petitions, when a Justice fears that the Court will decide a case unfavorably on the merits). It is interesting that, of the initially deadlocked three-disposition cases identified above in which one option was a jurisdictional dismissal, see supra note 52, in each case the faction favoring dismissal switched to a merits disposition, not the other way around.
165. 429 U.S. 190 (1976). Others have described Craig as an archetypal example of unilateral strategic voting. See, e.g., EPSTEIN & KNIGHT, supra note 5, at 1-9; Cross, supra note 9, at 551-52 ("Craig is a convincing illustration of how Justice Brennan compromised his desire for a strict scrutiny standard for gender discrimination in order to command a majority."). But none have fully explained the strategic opportunities and incentives facing Justice Brennan. Of course, no observer can know for certain whether or precisely why Justice Brennan behaved strategically in Craig. The case does, however, usefully illustrate hypothetical incentives for such behavior.
166. 429 U.S. 190 (1976). Others have described Craig as an archetypal example of unilateral strategic voting. See, e.g., EPSTEIN & KNIGHT, supra note 5, at 1-9; Cross, supra note 9, at 551-52 ("Craig is a convincing illustration of how Justice Brennan compromised his desire for a strict scrutiny standard for gender discrimination in order to command a majority."). But none have fully explained the strategic opportunities and incentives facing Justice Brennan. Of course, no observer can know for certain whether or precisely why Justice Brennan behaved strategically in Craig. The case does, however, usefully illustrate hypothetical incentives for such behavior.
167. 429 U.S. 190 (1976). Others have described Craig as an archetypal example of unilateral strategic voting. See, e.g., EPSTEIN & KNIGHT, supra note 5, at 1-9; Cross, supra note 9, at 551-52 ("Craig is a convincing illustration of how Justice Brennan compromised his desire for a strict scrutiny standard for gender discrimination in order to command a majority."). But none have fully explained the strategic opportunities and incentives facing Justice Brennan. Of course, no observer can know for certain whether or precisely why Justice Brennan behaved strategically in Craig. The case does, however, usefully illustrate hypothetical incentives for such behavior.
168. 411 U.S. 677 (1973).
169. See BERNARD SCHWARTZ, THE ASCENT OF PRAGMATISM 222-27 (1990).
170. See supra notes 59-61 and accompanying text. Note that Brennan has no strategic incentive to join Powell in advocating IS unless Powell would invalidate (rather than uphold) the statute under that standard; Brennan's vote can influence the precedent established only if he is in the majority-disposition coalition.
171. Recall that the Court has traditionally accorded little stare decisis weight to its own previous narrowest-grounds decisions. See Thurmon, supra note 60, at 437-38.
172. Sometimes a Justice might try to influence the precedential significance of a case even without forging an insincere majority-opinion coalition. Consider Edward Lazarus's account of Justice Brennan's behavior in Patterson v. McLean Credit Union, 491 U.S. 164 (1989) See EDWARD LAZARUS, CLOSED CHAMBERS 306-25 (1998). The relevant legal issue was whether racial workplace harassment constitutes a violation of 42 U.S.C § 1981's prohibition against racial discrimination in the "making" of a contract. At the Conference vote, Justice Brennan led a group of four who said yes. Justice White led a group of four who said no, and Justice Kennedy tentatively agreed with the Brennan faction. Brennan circulated a draft opinion holding that harassment-victim-and-plaintiff Brenda Patterson stated a § 1981 claim and Justice White circulated a draft dissent (which Chief Justice Rehnquist joined) holding that Patterson did not state a claim. Over time, Justice Kennedy was persuaded to abandon his tentative Conference position and conclude that § 1981 afforded Patterson no cause of action on these facts. Justice Kennedy circulated a draft opinion to this effect, which was quickly joined by Justices O'Connor and Scalia. At that moment it appeared that the Court would rule against Brenda Patterson based on a fractured opinion, since the Kennedy faction of three embraced a somewhat different rule and rationale than the White faction of two. Under these circumstances, Brennan's sincere dissent for four Justices ruling for Patterson would have no precedential consequence. In an apparent scheme to alter the case's precedential significance, Brennan circulated a new draft that maintained his sincere legal rule (that postcontractual harassment could violate § 1981) but switched the disposition, holding against the victim on the ground that she failed properly to plead the facts relevant to this legal rule. If Brennan could keep his faction together, then the Court would be unanimous on the disposition in rejecting Patterson's claim. But Brennan's position would have more votes than any other in the 4-3-2 split, and thus he would still write the lead opinion. I put aside here the complicated question of whether any of the three positions would have any precedential status under the narrowest- grounds rule; suffice it to say that Brennan might reasonably have believed that - at least with respect to lower courts if not a future Supreme Court - a lead opinion for four Justices ruling against Patterson but embracing an expansive view of § 1981 would mute the decision's conservative cast. But Brennan's gambit failed. Justice White responded by withdrawing his separate opinion and joining Kennedy's, and Rehnquist quickly followed suit. Kennedy now commanded a majority-opinion coalition, and thus his position would clearly establish precedent no matter what Brennan did. Predictably, once the strategic opportunity evaporated, Brennan immediately switched back to his original position vindicating the plaintiffs claim. While short- lived, Brennan's Patterson ploy thus illustrates the possibility that a Justice might strategically mold a decision's precedential significance even without forging a majority coalition, as in the Craig I scenario. Justice Brennan's gambit in Patterson has been described differently, as an effort to sway Justice Kennedy's position on the merits. See JAMES F. SIMON, THE CENTER HOLDS 19-81; id. at 64 (1995) (suggesting that Brennan was trying to "entice Kennedy to rejoin Brennan's [strategically reconfigured] majority," because it reached the result Kennedy wanted to reach even though it set the legal precedent Brennan wanted to set by interpreting the § 1981 cause of action relatively broadly). I find this explanation for Brennan's strategic behavior implausible, both because I agree with Lazarus that Brennan knew full well by this time that Kennedy would reject a broad reading of § 1981, see LAZARUS, supra, at 317 n.*, and also because there is no reason to suspect that Kennedy cared about the Court's disposition (whether Patterson won or lost) as an independent aspect of the case.
173. Sometimes a Justice might try to influence the precedential significance of a case even without forging an insincere majority-opinion coalition. Consider Edward Lazarus's account of Justice Brennan's behavior in Patterson v. McLean Credit Union, 491 U.S. 164 (1989) See EDWARD LAZARUS, CLOSED CHAMBERS 306-25 (1998). The relevant legal issue was whether racial workplace harassment constitutes a violation of 42 U.S.C § 1981's prohibition against racial discrimination in the "making" of a contract. At the Conference vote, Justice Brennan led a group of four who said yes. Justice White led a group of four who said no, and Justice Kennedy tentatively agreed with the Brennan faction. Brennan circulated a draft opinion holding that harassment-victim-and-plaintiff Brenda Patterson stated a § 1981 claim and Justice White circulated a draft dissent (which Chief Justice Rehnquist joined) holding that Patterson did not state a claim. Over time, Justice Kennedy was persuaded to abandon his tentative Conference position and conclude that § 1981 afforded Patterson no cause of action on these facts. Justice Kennedy circulated a draft opinion to this effect, which was quickly joined by Justices O'Connor and Scalia. At that moment it appeared that the Court would rule against Brenda Patterson based on a fractured opinion, since the Kennedy faction of three embraced a somewhat different rule and rationale than the White faction of two. Under these circumstances, Brennan's sincere dissent for four Justices ruling for Patterson would have no precedential consequence. In an apparent scheme to alter the case's precedential significance, Brennan circulated a new draft that maintained his sincere legal rule (that postcontractual harassment could violate § 1981) but switched the disposition, holding against the victim on the ground that she failed properly to plead the facts relevant to this legal rule. If Brennan could keep his faction together, then the Court would be unanimous on the disposition in rejecting Patterson's claim. But Brennan's position would have more votes than any other in the 4-3-2 split, and thus he would still write the lead opinion. I put aside here the complicated question of whether any of the three positions would have any precedential status under the narrowest-grounds rule; suffice it to say that Brennan might reasonably have believed that - at least with respect to lower courts if not a future Supreme Court - a lead opinion for four Justices ruling against Patterson but embracing an expansive view of § 1981 would mute the decision's conservative cast. But Brennan's gambit failed. Justice White responded by withdrawing his separate opinion and joining Kennedy's, and Rehnquist quickly followed suit. Kennedy now commanded a majority-opinion coalition, and thus his position would clearly establish precedent no matter what Brennan did. Predictably, once the strategic opportunity evaporated, Brennan immediately switched back to his original position vindicating the plaintiffs claim. While short-lived, Brennan's Patterson ploy thus illustrates the possibility that a Justice might strategically mold a decision's precedential significance even without forging a majority coalition, as in the Craig I scenario. Justice Brennan's gambit in Patterson has been described differently, as an effort to sway Justice Kennedy's position on the merits. See JAMES F. SIMON, THE CENTER HOLDS 19-81; id. at 64 (1995) (suggesting that Brennan was trying to "entice Kennedy to rejoin Brennan's [strategically reconfigured] majority," because it reached the result Kennedy wanted to reach even though it set the legal precedent Brennan wanted to set by interpreting the § 1981 cause of action relatively broadly). I find this explanation for Brennan's strategic behavior implausible, both because I agree with Lazarus that Brennan knew full well by this time that Kennedy would reject a broad reading of § 1981, see LAZARUS, supra, at 317 n.*, and also because there is no reason to suspect that Kennedy cared about the Court's disposition (whether Patterson won or lost) as an independent aspect of the case.
174. Sometimes a Justice might try to influence the precedential significance of a case even without forging an insincere majority-opinion coalition. Consider Edward Lazarus's account of Justice Brennan's behavior in Patterson v. McLean Credit Union, 491 U.S. 164 (1989) See EDWARD LAZARUS, CLOSED CHAMBERS 306-25 (1998). The relevant legal issue was whether racial workplace harassment constitutes a violation of 42 U.S.C § 1981's prohibition against racial discrimination in the "making" of a contract. At the Conference vote, Justice Brennan led a group of four who said yes. Justice White led a group of four who said no, and Justice Kennedy tentatively agreed with the Brennan faction. Brennan circulated a draft opinion holding that harassment-victim-and-plaintiff Brenda Patterson stated a § 1981 claim and Justice White circulated a draft dissent (which Chief Justice Rehnquist joined) holding that Patterson did not state a claim. Over time, Justice Kennedy was persuaded to abandon his tentative Conference position and conclude that § 1981 afforded Patterson no cause of action on these facts. Justice Kennedy circulated a draft opinion to this effect, which was quickly joined by Justices O'Connor and Scalia. At that moment it appeared that the Court would rule against Brenda Patterson based on a fractured opinion, since the Kennedy faction of three embraced a somewhat different rule and rationale than the White faction of two. Under these circumstances, Brennan's sincere dissent for four Justices ruling for Patterson would have no precedential consequence. In an apparent scheme to alter the case's precedential significance, Brennan circulated a new draft that maintained his sincere legal rule (that postcontractual harassment could violate § 1981) but switched the disposition, holding against the victim on the ground that she failed properly to plead the facts relevant to this legal rule. If Brennan could keep his faction together, then the Court would be unanimous on the disposition in rejecting Patterson's claim. But Brennan's position would have more votes than any other in the 4-3-2 split, and thus he would still write the lead opinion. I put aside here the complicated question of whether any of the three positions would have any precedential status under the narrowest- grounds rule; suffice it to say that Brennan might reasonably have believed that - at least with respect to lower courts if not a future Supreme Court - a lead opinion for four Justices ruling against Patterson but embracing an expansive view of § 1981 would mute the decision's conservative cast. But Brennan's gambit failed. Justice White responded by withdrawing his separate opinion and joining Kennedy's, and Rehnquist quickly followed suit. Kennedy now commanded a majority-opinion coalition, and thus his position would clearly establish precedent no matter what Brennan did. Predictably, once the strategic opportunity evaporated, Brennan immediately switched back to his original position vindicating the plaintiffs claim. While short- lived, Brennan's Patterson ploy thus illustrates the possibility that a Justice might strategically mold a decision's precedential significance even without forging a majority coalition, as in the Craig I scenario. Justice Brennan's gambit in Patterson has been described differently, as an effort to sway Justice Kennedy's position on the merits. See JAMES F. SIMON, THE CENTER HOLDS 19-81; id. at 64 (1995) (suggesting that Brennan was trying to "entice Kennedy to rejoin Brennan's [strategically reconfigured] majority," because it reached the result Kennedy wanted to reach even though it set the legal precedent Brennan wanted to set by interpreting the § 1981 cause of action relatively broadly). I find this explanation for Brennan's strategic behavior implausible, both because I agree with Lazarus that Brennan knew full well by this time that Kennedy would reject a broad reading of § 1981, see LAZARUS, supra, at 317 n.*, and also because there is no reason to suspect that Kennedy cared about the Court's disposition (whether Patterson won or lost) as an independent aspect of the case.
175. Sometimes a Justice might try to influence the precedential significance of a case even without forging an insincere majority-opinion coalition. Consider Edward Lazarus's account of Justice Brennan's behavior in Patterson v. McLean Credit Union, 491 U.S. 164 (1989) See EDWARD LAZARUS, CLOSED CHAMBERS 306-25 (1998). The relevant legal issue was whether racial workplace harassment constitutes a violation of 42 U.S.C § 1981's prohibition against racial discrimination in the "making" of a contract. At the Conference vote, Justice Brennan led a group of four who said yes. Justice White led a group of four who said no, and Justice Kennedy tentatively agreed with the Brennan faction. Brennan circulated a draft opinion holding that harassment-victim-and-plaintiff Brenda Patterson stated a § 1981 claim and Justice White circulated a draft dissent (which Chief Justice Rehnquist joined) holding that Patterson did not state a claim. Over time, Justice Kennedy was persuaded to abandon his tentative Conference position and conclude that § 1981 afforded Patterson no cause of action on these facts. Justice Kennedy circulated a draft opinion to this effect, which was quickly joined by Justices O'Connor and Scalia. At that moment it appeared that the Court would rule against Brenda Patterson based on a fractured opinion, since the Kennedy faction of three embraced a somewhat different rule and rationale than the White faction of two. Under these circumstances, Brennan's sincere dissent for four Justices ruling for Patterson would have no precedential consequence. In an apparent scheme to alter the case's precedential significance, Brennan circulated a new draft that maintained his sincere legal rule (that postcontractual harassment could violate § 1981) but switched the disposition, holding against the victim on the ground that she failed properly to plead the facts relevant to this legal rule. If Brennan could keep his faction together, then the Court would be unanimous on the disposition in rejecting Patterson's claim. But Brennan's position would have more votes than any other in the 4-3-2 split, and thus he would still write the lead opinion. I put aside here the complicated question of whether any of the three positions would have any precedential status under the narrowest- grounds rule; suffice it to say that Brennan might reasonably have believed that - at least with respect to lower courts if not a future Supreme Court - a lead opinion for four Justices ruling against Patterson but embracing an expansive view of § 1981 would mute the decision's conservative cast. But Brennan's gambit failed. Justice White responded by withdrawing his separate opinion and joining Kennedy's, and Rehnquist quickly followed suit. Kennedy now commanded a majority-opinion coalition, and thus his position would clearly establish precedent no matter what Brennan did. Predictably, once the strategic opportunity evaporated, Brennan immediately
176. No similar opportunity arises if one assumes that the Justices' ideal points line up nicely along a single dimension, say, liberal to conservative ideology, or zero to large monetary damages. If so, then the collective outcome will be determined by the position of the median Justice. See supra note 65. This position may or may not articulate a narrowest-grounds precedent governing Future Cases, but either way it will dictate the disposition of the Instant Case. There is no reason to think that a strategic-minded Justice could, merely by altering his own articulated position along that spectrum, induce the median (or any other) Justice to deviate from her sincere position. Suppose Justice Wapner's top-ranked rule lies at the far left end of the single-dimensional spectrum. Whether he deviates from that sincere position by moving farther to the left away from the median, or farther to the right and toward (but not across) the median, his movement neither reconstitutes the median spot nor provides any incentive for the median Justice (or any other) to move from her sincere position. The median Justice still has the ability to control the disposition, and therefore she should continue to vote sincerely. Justice Wapner can in theory change the median point on the spectrum only by repositioning himself to the right of the initial median spot - but of course this would worsen rather than improve the resulting collective outcome from Wapner's perspective, and thus would be self-defeating.
177. Presumably Powell, like Rehnquist, would uphold the statute under RBS. This is not only because statutes almost always satisfy rationality review, but also because Powell's failure to support Rehnquist's disposition as well as his rule would thwart Powell's self-conscious effort to secure the institutional values of a majority-opinion coalition. Some readers might be troubled by the notion that Justice Powell would willingly support a less-preferred substantive rule when doing so alters the disposition of the case (upholding rather than invalidating the statute, and hence ruling against rather than for the plaintiff). I explore this intuitive discomfort at infra section III.A.1.a.
178. See supra section II.A.
179. The above analysis assumes that, if a majority-opinion coalition forms around R2 in the Instant Case, this will establish a durable precedent. A Justice favoring R1 might be even more willing to vote strategically for R2 in the Instant Case if he still felt free, consistent with his own commitment to stare decisis principles, to fight for R1 in a Future Case if he suddenly thought (perhaps due to personnel changes) that R1 had become a feasible alternative. On the other hand, the Justice might be less willing to vote strategically for R2 in the Instant Case if he believed that victory would be short-lived because other members of the coalition would likely defect to R3 in a Future Case. The Justice's assessment of R2's durability given his own and others' stare decisis commitments, coupled with his prediction of the Court's future trends, thus could also play a role in his decision whether to vote sincerely or strategically in the Instant Case.
180. For an overview of the literature discussing this phenomenon, see Saul Brenner, Fluidity in Voting on the United States Supreme Court: A Bibliographic Overview of the Studies, 87 LAW LIBRARY J. 380 (1995). For various anecdotal stories concerning such fluidity, see LAZARUS, supra note 87; SCHWARTZ, supra note 84; SIMON, supra note 87.
181. For an overview of the literature discussing this phenomenon, see Saul Brenner, Fluidity in Voting on the United States Supreme Court: A Bibliographic Overview of the Studies, 87 LAW LIBRARY J. 380 (1995). For various anecdotal stories concerning such fluidity, see LAZARUS, supra note 87; SCHWARTZ, supra note 84; SIMON, supra note 87.
182. For an overview of the literature discussing this phenomenon, see Saul Brenner, Fluidity in Voting on the United States Supreme Court: A Bibliographic Overview of the Studies, 87 LAW LIBRARY J. 380 (1995). For various anecdotal stories concerning such fluidity, see LAZARUS, supra note 87; SCHWARTZ, supra note 84; SIMON, supra note 87.
183. For an overview of the literature discussing this phenomenon, see Saul Brenner, Fluidity in Voting on the United States Supreme Court: A Bibliographic Overview of the Studies, 87 LAW LIBRARY J. 380 (1995). For various anecdotal stories concerning such fluidity, see LAZARUS, supra note 87; SCHWARTZ, supra note 84; SIMON, supra note 87.
184. See Lawrence Baum, What Judges Want: Judges' Goals and Judicial Behavior, 47 POL. RES. Q. 749, 759 (1994) ("The extent to which Supreme Court Justices engage in strategic behavior is uncertain. It does seem clear that such behavior is not rare, particularly in the form of strategy to influence collective decisions of the Court."). Of course, content-driven and form-driven motivations are not mutually exclusive. In a given case a Justice might be motivated to vote insincerely to form a coalition both to secure particular institutional values and to avoid a substantively worse outcome.
185. To illustrate, suppose a Justice wants to move the law a great distance from where he finds it, say R5 in his view, to his R1. Rather than voting for R1 in the first case raising the issue and creating a fractured set of opinions, this Justice would advocate and secure a majority coalition for R4 in that case, and then advocate and secure a majority for R3 in the next, and so on until he finally gets a Court for R1. This strategy is designed in each case to nudge his reluctant colleagues as far as they can be moved, so that the next case provides a closer jumping-off point from which to leap finally to R1.
186. For example, consider Justices Brennan and Marshall's longstanding adherence to their sincere view that the death penalty is, in all circumstances, cruel and unusual punishment. See Gregg v. Georgia, 428 U.S. 153, 229 (1976) (Brennan, J., dissenting); 428 U.S. at 231 (Marshall, J., dissenting). In numerous cases Justices Brennan and Marshall joined or even authored majority-opinion coalitions invalidating a death sentence on specific, narrow grounds, but also included a separate statement maintaining their opposition to the death penalty on their sincere and broader ground. See, e.g., Gardner v. Florida, 430 U.S. 349, 364- 65 (1977) (Brennan, J., concurring); Godfrey v. Georgia, 446 U.S. 420, 433-34 (1980) (Marshall, J., concurring).
187. For example, consider Justices Brennan and Marshall's longstanding adherence to their sincere view that the death penalty is, in all circumstances, cruel and unusual punishment. See Gregg v. Georgia, 428 U.S. 153, 229 (1976) (Brennan, J., dissenting); 428 U.S. at 231 (Marshall, J., dissenting). In numerous cases Justices Brennan and Marshall joined or even authored majority-opinion coalitions invalidating a death sentence on specific, narrow grounds, but also included a separate statement maintaining their opposition to the death penalty on their sincere and broader ground. See, e.g., Gardner v. Florida, 430 U.S. 349, 364- 65 (1977) (Brennan, J., concurring); Godfrey v. Georgia, 446 U.S. 420, 433-34 (1980) (Marshall, J., concurring).
188. For example, consider Justices Brennan and Marshall's longstanding adherence to their sincere view that the death penalty is, in all circumstances, cruel and unusual punishment. See Gregg v. Georgia, 428 U.S. 153, 229 (1976) (Brennan, J., dissenting); 428 U.S. at 231 (Marshall, J., dissenting). In numerous cases Justices Brennan and Marshall joined or even authored majority-opinion coalitions invalidating a death sentence on specific, narrow grounds, but also included a separate statement maintaining their opposition to the death penalty on their sincere and broader ground. See, e.g., Gardner v. Florida, 430 U.S. 349, 364-65 (1977) (Brennan, J., concurring); Godfrey v. Georgia, 446 U.S. 420, 433-34 (1980) (Marshall, J., concurring).
189. For example, consider Justices Brennan and Marshall's longstanding adherence to their sincere view that the death penalty is, in all circumstances, cruel and unusual punishment. See Gregg v. Georgia, 428 U.S. 153, 229 (1976) (Brennan, J., dissenting); 428 U.S. at 231 (Marshall, J., dissenting). In numerous cases Justices Brennan and Marshall joined or even authored majority-opinion coalitions invalidating a death sentence on specific, narrow grounds, but also included a separate statement maintaining their opposition to the death penalty on their sincere and broader ground. See, e.g., Gardner v. Florida, 430 U.S. 349, 364- 65 (1977) (Brennan, J., concurring); Godfrey v. Georgia, 446 U.S. 420, 433-34 (1980) (Marshall, J., concurring).
190. For example, consider Edward Lazarus's account of Justice O'Connor's reasoning in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), pertaining to the proper level of scrutiny applied to a state affirmative action program. According to Lazarus, O'Connor insincerely articulated an argument (that state programs should be more strictly scrutinized than federal programs) in order to distinguish Croson from Fullilove v. Klutznick, 448 U.S. 448 (1980), and then abandoned the argument again when she could secure a Court for her sincere position in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (applying the same strict scrutiny to federal as to state programs). See LAZARUS, supra note 87, at 299-301. For another example, consider Don Regan's account of Justice Powell's wavering dormant Commerce Clause reasoning in Edgar v. MITE Corp., 457 U.S. 624 (1982), and CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987), concerning application of the balancing test established in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Powell's vote was expressly insincere in one sense. See Edgar, 457 U.S. at 646 (stating his belief that the "case is moot," but deciding to reach the merits because of "the decision of a majority of the Court" to do so). Regan argues that Powell's merits position supporting the Pike balancing test was strategic as well. Without Powell's vote there was a majority-disposition coalition invalidating a state statute but no majority-opinion coalition, with a plurality embracing several different doctrinal arguments. Powell joined only the plurality's Pike balancing analysis - thereby forging a majority-opinion coalition for this argument alone - in order to establish a precedent that was as little restrictive of state authority as possible given the options. Subsequently in CTS, Powell distinguished Edgar and upheld a state statute without engaging in the Pike balancing that his own precedent-creating joinder in Edgar would appear to have dictated, and without explaining this omission. See Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 MICH. L. REV. 1091, 1278-83 (1986); Donald H. Regan, Siamese Essays: (I) CTS Corp. v. Dynamics Corp. of American and Dormant Commerce Clause Doctrine; (II) Extraterritorial State Legislation, 85 MICH. L. REV. 1865, 1866-68 & n.18 (1987).
191. For example, consider Edward Lazarus's account of Justice O'Connor's reasoning in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), pertaining to the proper level of scrutiny applied to a state affirmative action program. According to Lazarus, O'Connor insincerely articulated an argument (that state programs should be more strictly scrutinized than federal programs) in order to distinguish Croson from Fullilove v. Klutznick, 448 U.S. 448 (1980), and then abandoned the argument again when she could secure a Court for her sincere position in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (applying the same strict scrutiny to federal as to state programs). See LAZARUS, supra note 87, at 299-301. For another example, consider Don Regan's account of Justice Powell's wavering dormant Commerce Clause reasoning in Edgar v. MITE Corp., 457 U.S. 624 (1982), and CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987), concerning application of the balancing test established in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Powell's vote was expressly insincere in one sense. See Edgar, 457 U.S. at 646 (stating his belief that the "case is moot," but deciding to reach the merits because of "the decision of a majority of the Court" to do so). Regan argues that Powell's merits position supporting the Pike balancing test was strategic as well. Without Powell's vote there was a majority-disposition coalition invalidating a state statute but no majority-opinion coalition, with a plurality embracing several different doctrinal arguments. Powell joined only the plurality's Pike balancing analysis - thereby forging a majority-opinion coalition for this argument alone - in order to establish a precedent that was as little restrictive of state authority as possible given the options. Subsequently in CTS, Powell distinguished Edgar and upheld a state statute without engaging in the Pike balancing that his own precedent-creating joinder in Edgar would appear to have dictated, and without explaining this omission. See Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 MICH. L. REV. 1091, 1278-83 (1986); Donald H. Regan, Siamese Essays: (I) CTS Corp. v. Dynamics Corp. of American and Dormant Commerce Clause Doctrine; (II) Extraterritorial State Legislation, 85 MICH. L. REV. 1865, 1866-68 & n.18 (1987).
192. For example, consider Edward Lazarus's account of Justice O'Connor's reasoning in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), pertaining to the proper level of scrutiny applied to a state affirmative action program. According to Lazarus, O'Connor insincerely articulated an argument (that state programs should be more strictly scrutinized than federal programs) in order to distinguish Croson from Fullilove v. Klutznick, 448 U.S. 448 (1980), and then abandoned the argument again when she could secure a Court for her sincere position in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (applying the same strict scrutiny to federal as to state programs). See LAZARUS, supra note 87, at 299-301. For another example, consider Don Regan's account of Justice Powell's wavering dormant Commerce Clause reasoning in Edgar v. MITE Corp., 457 U.S. 624 (1982), and CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987), concerning application of the balancing test established in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Powell's vote was expressly insincere in one sense. See Edgar, 457 U.S. at 646 (stating his belief that the "case is moot," but deciding to reach the merits because of "the decision of a majority of the Court" to do so). Regan argues that Powell's merits position supporting the Pike balancing test was strategic as well. Without Powell's vote there was a majority-disposition coalition invalidating a state statute but no majority-opinion coalition, with a plurality embracing several different doctrinal arguments. Powell joined only the plurality's Pike balancing analysis - thereby forging a majority-opinion coalition for this argument alone - in order to establish a precedent that was as little restrictive of state authority as possible given the options. Subsequently in CTS, Powell distinguished Edgar and upheld a state statute without engaging in the Pike balancing that his own precedent-creating joinder in Edgar would appear to have dictated, and without explaining this omission. See Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 MICH. L. REV. 1091, 1278-83 (1986); Donald H. Regan, Siamese Essays: (I) CTS Corp. v. Dynamics Corp. of American and Dormant Commerce Clause Doctrine; (II) Extraterritorial State Legislation, 85 MICH. L. REV. 1865, 1866-68 & n.18 (1987).
193. For example, consider Edward Lazarus's account of Justice O'Connor's reasoning in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), pertaining to the proper level of scrutiny applied to a state affirmative action program. According to Lazarus, O'Connor insincerely articulated an argument (that state programs should be more strictly scrutinized than federal programs) in order to distinguish Croson from Fullilove v. Klutznick, 448 U.S. 448 (1980), and then abandoned the argument again when she could secure a Court for her sincere position in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (applying the same strict scrutiny to federal as to state programs). See LAZARUS, supra note 87, at 299-301. For another example, consider Don Regan's account of Justice Powell's wavering dormant Commerce Clause reasoning in Edgar v. MITE Corp., 457 U.S. 624 (1982), and CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987), concerning application of the balancing test established in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Powell's vote was expressly insincere in one sense. See Edgar, 457 U.S. at 646 (stating his belief that the "case is moot," but deciding to reach the merits because of "the decision of a majority of the Court" to do so). Regan argues that Powell's merits position supporting the Pike balancing test was strategic as well. Without Powell's vote there was a majority-disposition coalition invalidating a state statute but no majority-opinion coalition, with a plurality embracing several different doctrinal arguments. Powell joined only the plurality's Pike balancing analysis - thereby forging a majority-opinion coalition for this argument alone - in order to establish a precedent that was as little restrictive of state authority as possible given the options. Subsequently in CTS, Powell distinguished Edgar and upheld a state statute without engaging in the Pike balancing that his own precedent-creating joinder in Edgar would appear to have dictated, and without explaining this omission. See Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 MICH. L. REV. 1091, 1278-83 (1986); Donald H. Regan, Siamese Essays: (I) CTS Corp. v. Dynamics Corp. of American and Dormant Commerce Clause Doctrine; (II) Extraterritorial State Legislation, 85 MICH. L. REV. 1865, 1866-68 & n.18 (1987).
194. For example, consider Edward Lazarus's account of Justice O'Connor's reasoning in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), pertaining to the proper level of scrutiny applied to a state affirmative action program. According to Lazarus, O'Connor insincerely articulated an argument (that state programs should be more strictly scrutinized than federal programs) in order to distinguish Croson from Fullilove v. Klutznick, 448 U.S. 448 (1980), and then abandoned the argument again when she could secure a Court for her sincere position in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (applying the same strict scrutiny to federal as to state programs). See LAZARUS, supra note 87, at 299-301. For another example, consider Don Regan's account of Justice Powell's wavering dormant Commerce Clause reasoning in Edgar v. MITE Corp., 457 U.S. 624 (1982), and CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987), concerning application of the balancing test established in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Powell's vote was expressly insincere in one sense. See Edgar, 457 U.S. at 646 (stating his belief that the "case is moot," but deciding to reach the merits because of "the decision of a majority of the Court" to do so). Regan argues that Powell's merits position supporting the Pike balancing test was strategic as well. Without Powell's vote there was a majority-disposition coalition invalidating a state statute but no majority-opinion coalition, with a plurality embracing several different doctrinal arguments. Powell joined only the plurality's Pike balancing analysis - thereby forging a majority-opinion coalition for this argument alone - in order to establish a precedent that was as little restrictive of state authority as possible given the options. Subsequently in CTS, Powell distinguished Edgar and upheld a state statute without engaging in the Pike balancing that his own precedent-creating joinder in Edgar would appear to have dictated, and without explaining this omission. See Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 MICH. L. REV. 1091, 1278-83 (1986); Donald H. Regan, Siamese Essays: (I) CTS Corp. v. Dynamics Corp. of American and Dormant Commerce Clause Doctrine; (II) Extraterritorial State Legislation, 85 MICH. L. REV. 1865, 1866-68 & n.18 (1987).
195. For example, consider Edward Lazarus's account of Justice O'Connor's reasoning in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), pertaining to the proper level of scrutiny applied to a state affirmative action program. According to Lazarus, O'Connor insincerely articulated an argument (that state programs should be more strictly scrutinized than federal programs) in order to distinguish Croson from Fullilove v. Klutznick, 448 U.S. 448 (1980), and then abandoned the argument again when she could secure a Court for her sincere position in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (applying the same strict scrutiny to federal as to state programs). See LAZARUS, supra note 87, at 299-301. For another example, consider Don Regan's account of Justice Powell's wavering dormant Commerce Clause reasoning in Edgar v. MITE Corp., 457 U.S. 624 (1982), and CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987), concerning application of the balancing test established in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Powell's vote was expressly insincere in one sense. See Edgar, 457 U.S. at 646 (stating his belief that the "case is moot," but deciding to reach the merits because of "the decision of a majority of the Court" to do so). Regan argues that Powell's merits position supporting the Pike balancing test was strategic as well. Without Powell's vote there was a majority-disposition coalition invalidating a state statute but no majority-opinion coalition, with a plurality embracing several different doctrinal arguments. Powell joined only the plurality's Pike balancing analysis - thereby forging a majority-opinion coalition for this argument alone - in order to establish a precedent that was as little restrictive of state authority as possible given the options. Subsequently in CTS, Powell distinguished Edgar and upheld a state statute without engaging in the Pike balancing that his own precedent-creating joinder in Edgar would appear to have dictated, and without explaining this omission. See Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 MICH. L. REV. 1091, 1278-83 (1986); Donald H. Regan, Siamese Essays: (I) CTS Corp. v. Dynamics Corp. of American and Dormant Commerce Clause Doctrine; (II) Extraterritorial State Legislation, 85 MICH. L. REV. 1865, 1866-68 & n.18 (1987).
196. For example, consider Edward Lazarus's account of Justice O'Connor's reasoning in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), pertaining to the proper level of scrutiny applied to a state affirmative action program. According to Lazarus, O'Connor insincerely articulated an argument (that state programs should be more strictly scrutinized than federal programs) in order to distinguish Croson from Fullilove v. Klutznick, 448 U.S. 448 (1980), and then abandoned the argument again when she could secure a Court for her sincere position in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (applying the same strict scrutiny to federal as to state programs). See LAZARUS, supra note 87, at 299-301. For another example, consider Don Regan's account of Justice Powell's wavering dormant Commerce Clause reasoning in Edgar v. MITE Corp., 457 U.S. 624 (1982), and CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987), concerning application of the balancing test established in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Powell's vote was expressly insincere in one sense. See Edgar, 457 U.S. at 646 (stating his belief that the "case is moot," but deciding to reach the merits because of "the decision of a majority of the Court" to do so). Regan argues that Powell's merits position supporting the Pike balancing test was strategic as well. Without Powell's vote there was a majority-disposition coalition invalidating a state statute but no majority-opinion coalition, with a plurality embracing several different doctrinal arguments. Powell joined only the plurality's Pike balancing analysis - thereby forging a majority-opinion coalition for this argument alone - in order to establish a precedent that was as little restrictive of state authority as possible given the options. Subsequently in CTS, Powell distinguished Edgar and upheld a state statute without engaging in the Pike balancing that his own precedent-creating joinder in Edgar would appear to have dictated, and without explaining this omission. See Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 MICH. L. REV. 1091, 1278-83 (1986); Donald H. Regan, Siamese Essays: (I) CTS Corp. v. Dynamics Corp. of American and Dormant Commerce Clause Doctrine; (II) Extraterritorial State Legislation, 85 MICH. L. REV. 1865, 1866-68 & n.18 (1987).
197. For example, consider Edward Lazarus's account of Justice O'Connor's reasoning in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), pertaining to the proper level of scrutiny applied to a state affirmative action program. According to Lazarus, O'Connor insincerely articulated an argument (that state programs should be more strictly scrutinized than federal programs) in order to distinguish Croson from Fullilove v. Klutznick, 448 U.S. 448 (1980), and then abandoned the argument again when she could secure a Court for her sincere position in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (applying the same strict scrutiny to federal as to state programs). See LAZARUS, supra note 87, at 299-301. For another example, consider Don Regan's account of Justice Powell's wavering dormant Commerce Clause reasoning in Edgar v. MITE Corp., 457 U.S. 624 (1982), and CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987), concerning application of the balancing test established in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Powell's vote was expressly insincere in one sense. See Edgar, 457 U.S. at 646 (stating his belief that the "case is moot," but deciding to reach the merits because of "the decision of a majority of the Court" to do so). Regan argues that Powell's merits position supporting the Pike balancing test was strategic as well. Without Powell's vote there was a majority-disposition coalition invalidating a state statute but no majority-opinion coalition, with a plurality embracing several different doctrinal arguments. Powell joined only the plurality's Pike balancing analysis - thereby forging a majority-opinion coalition for this argument alone - in order to establish a precedent that was as little restrictive of state authority as possible given the options. Subsequently in CTS, Powell distinguished Edgar and upheld a state statute without engaging in the Pike balancing that his own precedent-creating joinder in Edgar would appear to have dictated, and without explaining this omission. See Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 MICH. L. REV. 1091, 1278-83 (1986); Donald H. Regan, Siamese Essays: (I) CTS Corp. v. Dynamics Corp. of American and Dormant Commerce Clause Doctrine; (II) Extraterritorial State Legislation, 85 MICH. L. REV. 1865, 1866-68 & n.18 (1987).
198. For example, consider Edward Lazarus's account of Justice O'Connor's reasoning in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), pertaining to the proper level of scrutiny applied to a state affirmative action program. According to Lazarus, O'Connor insincerely articulated an argument (that state programs should be more strictly scrutinized than federal programs) in order to distinguish Croson from Fullilove v. Klutznick, 448 U.S. 448 (1980), and then abandoned the argument again when she could secure a Court for her sincere position in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (applying the same strict scrutiny to federal as to state programs). See LAZARUS, supra note 87, at 299-301. For another example, consider Don Regan's account of Justice Powell's wavering dormant Commerce Clause reasoning in Edgar v. MITE Corp., 457 U.S. 624 (1982), and CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987), concerning application of the balancing test established in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Powell's vote was expressly insincere in one sense. See Edgar, 457 U.S. at 646 (stating his belief that the "case is moot," but deciding to reach the merits because of "the decision of a majority of the Court" to do so). Regan argues that Powell's merits position supporting the Pike balancing test was strategic as well. Without Powell's vote there was a majority-disposition coalition invalidating a state statute but no majority-opinion coalition, with a plurality embracing several different doctrinal arguments. Powell joined only the plurality's Pike balancing analysis - thereby forging a majority-opinion coalition for this argument alone - in order to establish a precedent that was as little restrictive of state authority as possible given the options. Subsequently in CTS, Powell distinguished Edgar and upheld a state statute without engaging in the Pike balancing that his own precedent-creating joinder in Edgar would appear to have dictated, and without explaining this omission. See Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 MICH. L. REV. 1091, 1278-83 (1986); Donald H. Regan, Siamese Essays: (I) CTS Corp. v. Dynamics Corp. of American and Dormant Commerce Clause Doctrine; (II) Extraterritorial State Legislation, 85 MICH. L. REV. 1865, 1866-68 & n.18 (1987).
199. For example, consider Edward Lazarus's account of Justice O'Connor's reasoning in City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), pertaining to the proper level of scrutiny applied to a state affirmative action program. According to Lazarus, O'Connor insincerely articulated an argument (that state programs should be more strictly scrutinized than federal programs) in order to distinguish Croson from Fullilove v. Klutznick, 448 U.S. 448 (1980), and then abandoned the argument again when she could secure a Court for her sincere position in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (applying the same strict scrutiny to federal as to state programs). See LAZARUS, supra note 87, at 299-301. For another example, consider Don Regan's account of Justice Powell's wavering dormant Commerce Clause reasoning in Edgar v. MITE Corp., 457 U.S. 624 (1982), and CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69 (1987), concerning application of the balancing test established in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970). Powell's vote was expressly insincere in one sense. See Edgar, 457 U.S. at 646 (stating his belief that the "case is moot," but deciding to reach the merits because of "the decision of a majority of the Court" to do so). Regan argues that Powell's merits position supporting the Pike balancing test was strategic as well. Without Powell's vote there was a majority-disposition coalition invalidating a state statute but no majority-opinion coalition, with a plurality embracing several different doctrinal arguments. Powell joined only the plurality's Pike balancing analysis - thereby forging a majority-opinion coalition for this argument alone - in order to establish a precedent that was as little restrictive of state authority as possible given the options. Subsequently in CTS, Powell distinguished Edgar and upheld a state statute without engaging in the Pike balancing that his own precedent-creating joinder in Edgar would appear to have dictated, and without explaining this omission. See Donald H. Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 MICH. L. REV. 1091, 1278-83 (1986); Donald H. Regan, Siamese Essays: (I) CTS Corp. v. Dynamics Corp. of American and Dormant Commerce Clause Doctrine; (II) Extraterritorial State Legislation, 85 MICH. L. REV. 1865, 1866-68 & n.18 (1987).
200. The majority might be willing to move either to increase the coalition size for institutional reasons or for personal, non-judgment-based reasons (such as to avoid public criticism or ridicule). Either way, the would-be dissenter ends up joining the majority in a strategic vote for a suboptimal, but still better-than-before, legal rule. The threat of a dissent probably has greater force on intermediate appellate courts, because unanimous opinions are less likely to be reviewed. See Frank B. Cross & Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 YALE L.J. 2155 (1998) (arguing that a judge in the minority can encourage the majority members to modify their proposed views by threatening to dissent, thereby signaling to the Supreme Court that the case should be reviewed).
201. I would not count as strategic voting the common practice of a dissenting (or even concurring) Justice intentionally misdescribing the rule announced in a majority opinion in an effort to influence its interpretation in subsequent cases. The dissenter's maneuver is an attempt to move the meaning of the majority's rule closer to the dissent's sincere position, but does not require the dissenter to embrace a suboptimal rule himself.
202. In theory, Justices might trade votes across two discrete legal issues arising in a single case. I focus on two-case trades because plausible opportunities for such trades are more likely to arise.
203. The Justices might consider the durability of each rule as well as its substantive desirability; the shorter an acquired rule will likely reign, the more its law-improvement value should be discounted.
204. See ROBERT A. CARP & RONALD STIDHAM, THE FEDERAL COURTS 177 (2d ed. 1991) ("[T]here is virtually no evidence for [logrolling] in the judiciary. Bargaining does indeed take place, but it is more subtle and does not involve vote-swapping."); STEARNS, supra note 1 at 115 ("[A]ppellate courts . . . generally eschew vote trading across issues within cases and across cases . . . . "); Cohen & Spitzer, supra note 10, at 84 ("There is precious little evidence of naked vote trading on the Supreme Court."); Mark Tushnet, Themes in Warren Court Biographies, 70 N.Y.U. L. REV. 748, 764 n.86 (1995) (noting his perusal of Brennan's papers over three decades and finding "nothing indicating an explicit 'deal' for votes"); cf. PERRY, supra note 81, at 163-65 (reporting interviews with both Justices and law clerks about the certiorari granting process, and observing that with respect to this process "[n]ot a single informant mentioned anything resembling horse trading, and many said explicitly that it never occurred"); Patricia M. Wald, Collegiality on a Court, 40 FED. BAR NEWS & J. 521, 524 (1993) (referring to intermediate appellate panels, "[b]argaining seldom - I would almost say never -takes place between cases").
205. See ROBERT A. CARP & RONALD STIDHAM, THE FEDERAL COURTS 177 (2d ed. 1991) ("[T]here is virtually no evidence for [logrolling] in the judiciary. Bargaining does indeed take place, but it is more subtle and does not involve vote-swapping."); STEARNS, supra note 1 at 115 ("[A]ppellate courts . . . generally eschew vote trading across issues within cases and across cases . . . . "); Cohen & Spitzer, supra note 10, at 84 ("There is precious little evidence of naked vote trading on the Supreme Court."); Mark Tushnet, Themes in Warren Court Biographies, 70 N.Y.U. L. REV. 748, 764 n.86 (1995) (noting his perusal of Brennan's papers over three decades and finding "nothing indicating an explicit 'deal' for votes"); cf. PERRY, supra note 81, at 163-65 (reporting interviews with both Justices and law clerks about the certiorari granting process, and observing that with respect to this process "[n]ot a single informant mentioned anything resembling horse trading, and many said explicitly that it never occurred"); Patricia M. Wald, Collegiality on a Court, 40 FED. BAR NEWS & J. 521, 524 (1993) (referring to intermediate appellate panels, "[b]argaining seldom - I would almost say never -takes place between cases").
206. See ROBERT A. CARP & RONALD STIDHAM, THE FEDERAL COURTS 177 (2d ed. 1991) ("[T]here is virtually no evidence for [logrolling] in the judiciary. Bargaining does indeed take place, but it is more subtle and does not involve vote-swapping."); STEARNS, supra note 1 at 115 ("[A]ppellate courts . . . generally eschew vote trading across issues within cases and across cases . . . . "); Cohen & Spitzer, supra note 10, at 84 ("There is precious little evidence of naked vote trading on the Supreme Court."); Mark Tushnet, Themes in Warren Court Biographies, 70 N.Y.U. L. REV. 748, 764 n.86 (1995) (noting his perusal of Brennan's papers over three decades and finding "nothing indicating an explicit 'deal' for votes"); cf. PERRY, supra note 81, at 163-65 (reporting interviews with both Justices and law clerks about the certiorari granting process, and observing that with respect to this process "[n]ot a single informant mentioned anything resembling horse trading, and many said explicitly that it never occurred"); Patricia M. Wald, Collegiality on a Court, 40 FED. BAR NEWS & J. 521, 524 (1993) (referring to intermediate appellate panels, "[b]argaining seldom - I would almost say never -takes place between cases").
207. See ROBERT A. CARP & RONALD STIDHAM, THE FEDERAL COURTS 177 (2d ed. 1991) ("[T]here is virtually no evidence for [logrolling] in the judiciary. Bargaining does indeed take place, but it is more subtle and does not involve vote-swapping."); STEARNS, supra note 1 at 115 ("[A]ppellate courts . . . generally eschew vote trading across issues within cases and across cases . . . . "); Cohen & Spitzer, supra note 10, at 84 ("There is precious little evidence of naked vote trading on the Supreme Court."); Mark Tushnet, Themes in Warren Court Biographies, 70 N.Y.U. L. REV. 748, 764 n.86 (1995) (noting his perusal of Brennan's papers over three decades and finding "nothing indicating an explicit 'deal' for votes"); cf. PERRY, supra note 81, at 163-65 (reporting interviews with both Justices and law clerks about the certiorari granting process, and observing that with respect to this process "[n]ot a single informant mentioned anything resembling horse trading, and many said explicitly that it never occurred"); Patricia M. Wald, Collegiality on a Court, 40 FED. BAR NEWS & J. 521, 524 (1993) (referring to intermediate appellate panels, "[b]argaining seldom - I would almost say never -takes place between cases").
208. See ROBERT A. CARP & RONALD STIDHAM, THE FEDERAL COURTS 177 (2d ed. 1991) ("[T]here is virtually no evidence for [logrolling] in the judiciary. Bargaining does indeed take place, but it is more subtle and does not involve vote-swapping."); STEARNS, supra note 1 at 115 ("[A]ppellate courts . . . generally eschew vote trading across issues within cases and across cases . . . . "); Cohen & Spitzer, supra note 10, at 84 ("There is precious little evidence of naked vote trading on the Supreme Court."); Mark Tushnet, Themes in Warren Court Biographies, 70 N.Y.U. L. REV. 748, 764 n.86 (1995) (noting his perusal of Brennan's papers over three decades and finding "nothing indicating an explicit 'deal' for votes"); cf. PERRY, supra note 81, at 163-65 (reporting interviews with both Justices and law clerks about the certiorari granting process, and observing that with respect to this process "[n]ot a single informant mentioned anything resembling horse trading, and many said explicitly that it never occurred"); Patricia M. Wald, Collegiality on a Court, 40 FED. BAR NEWS & J. 521, 524 (1993) (referring to intermediate appellate panels, "[b]argaining seldom - I would almost say never -takes place between cases").
209. See ROBERT A. CARP & RONALD STIDHAM, THE FEDERAL COURTS 177 (2d ed. 1991) ("[T]here is virtually no evidence for [logrolling] in the judiciary. Bargaining does indeed take place, but it is more subtle and does not involve vote-swapping."); STEARNS, supra note 1 at 115 ("[A]ppellate courts . . . generally eschew vote trading across issues within cases and across cases . . . . "); Cohen & Spitzer, supra note 10, at 84 ("There is precious little evidence of naked vote trading on the Supreme Court."); Mark Tushnet, Themes in Warren Court Biographies, 70 N.Y.U. L. REV. 748, 764 n.86 (1995) (noting his perusal of Brennan's papers over three decades and finding "nothing indicating an explicit 'deal' for votes"); cf. PERRY, supra note 81, at 163-65 (reporting interviews with both Justices and law clerks about the certiorari granting process, and observing that with respect to this process "[n]ot a single informant mentioned anything resembling horse trading, and many said explicitly that it never occurred"); Patricia M. Wald, Collegiality on a Court, 40 FED. BAR NEWS & J. 521, 524 (1993) (referring to intermediate appellate panels, "[b]argaining seldom - I would almost say never -takes place between cases").
210. John Jefferies nicely illustrates this tacit back-scratching practice. Justice Powell, he reports, joined an opinion circulated by Justice Blackmun in a tax case despite Powell's view that the opinion was "lamentable." The reason for the joinder: Justice Blackmun had not yet taken a position on Justice Powell's circulated draft opinion in the much more important affirmative action case Regents of the University of California v. Bakke, 438 U.S. 265 (1978), and as Powell reportedly said, "We don't want to upset Harry in Bakke." JOHN C. JEFFERIES, JR., JUSTICE LEWIS F. POWELL, JR. 490 (1994); see also Cross, supra note 9, at 566-67 (suggesting Justices "may quietly and implicitly" engage in such "tacit exchange"); Cross & Tiller, supra note 97, at 2175 ("One would expect [a judge] who did not care about the issue to defer to [a colleague] who did care about the issue, in anticipation of complementary deference when their roles were reversed.").
211. John Jefferies nicely illustrates this tacit back-scratching practice. Justice Powell, he reports, joined an opinion circulated by Justice Blackmun in a tax case despite Powell's view that the opinion was "lamentable." The reason for the joinder: Justice Blackmun had not yet taken a position on Justice Powell's circulated draft opinion in the much more important affirmative action case Regents of the University of California v. Bakke, 438 U.S. 265 (1978), and as Powell reportedly said, "We don't want to upset Harry in Bakke." JOHN C. JEFFERIES, JR., JUSTICE LEWIS F. POWELL, JR. 490 (1994); see also Cross, supra note 9, at 566-67 (suggesting Justices "may quietly and implicitly" engage in such "tacit exchange"); Cross & Tiller, supra note 97, at 2175 ("One would expect [a judge] who did not care about the issue to defer to [a colleague] who did care about the issue, in anticipation of complementary deference when their roles were reversed.").
212. John Jefferies nicely illustrates this tacit back-scratching practice. Justice Powell, he reports, joined an opinion circulated by Justice Blackmun in a tax case despite Powell's view that the opinion was "lamentable." The reason for the joinder: Justice Blackmun had not yet taken a position on Justice Powell's circulated draft opinion in the much more important affirmative action case Regents of the University of California v. Bakke, 438 U.S. 265 (1978), and as Powell reportedly said, "We don't want to upset Harry in Bakke." JOHN C. JEFFERIES, JR., JUSTICE LEWIS F. POWELL, JR. 490 (1994); see also Cross, supra note 9, at 566-67 (suggesting Justices "may quietly and implicitly" engage in such "tacit exchange"); Cross & Tiller, supra note 97, at 2175 ("One would expect [a judge] who did not care about the issue to defer to [a colleague] who did care about the issue, in anticipation of complementary deference when their roles were reversed.").
213. John Jefferies nicely illustrates this tacit back-scratching practice. Justice Powell, he reports, joined an opinion circulated by Justice Blackmun in a tax case despite Powell's view that the opinion was "lamentable." The reason for the joinder: Justice Blackmun had not yet taken a position on Justice Powell's circulated draft opinion in the much more important affirmative action case Regents of the University of California v. Bakke, 438 U.S. 265 (1978), and as Powell reportedly said, "We don't want to upset Harry in Bakke." JOHN C. JEFFERIES, JR., JUSTICE LEWIS F. POWELL, JR. 490 (1994); see also Cross, supra note 9, at 566-67 (suggesting Justices "may quietly and implicitly" engage in such "tacit exchange"); Cross & Tiller, supra note 97, at 2175 ("One would expect [a judge] who did not care about the issue to defer to [a colleague] who did care about the issue, in anticipation of complementary deference when their roles were reversed.").
214. See Gregory A. Caldeira & Christopher J.W. Zorn, Of Time and Consensual Norms in the Supreme Court, 42 AM. J. POL. SCI. 874, 877 (1998) ("Reciprocity is an important norm on the Court, and if a Justice refrains from dissent, he or she may well expect the same treatment in the future from the current opinion-writer."); Forrest Maltzman et al., Strategic and Judicial Choice: New Institutionalist Approaches to Supreme Court Decision-Making, in SUPREME COURT DECISION-MAKING 43, 56-57 (Cornell W. Clayton & Howard Gillman eds., 1999) (reporting studies showing that Justices are "likely to engage in tit-for-tat behavior," for example, by "join[ing] majority opinions more quickly if the opinion's author has cooperated with them in the past").
215. See Gregory A. Caldeira & Christopher J.W. Zorn, Of Time and Consensual Norms in the Supreme Court, 42 AM. J. POL. SCI. 874, 877 (1998) ("Reciprocity is an important norm on the Court, and if a Justice refrains from dissent, he or she may well expect the same treatment in the future from the current opinion-writer."); Forrest Maltzman et al., Strategic and Judicial Choice: New Institutionalist Approaches to Supreme Court Decision-Making, in SUPREME COURT DECISION-MAKING 43, 56-57 (Cornell W. Clayton & Howard Gillman eds., 1999) (reporting studies showing that Justices are "likely to engage in tit-for-tat behavior," for example, by "join[ing] majority opinions more quickly if the opinion's author has cooperated with them in the past").
216. See MURPHY, supra note 2, at 52-53 (illustrating such "reciprocal favors"). I suspect that tacit trades are likely to involve smaller error-magnitudes than explicit trades. With a tacit trade the joining Justice cannot be certain her sacrifice will be reciprocated with respect to a specific Other Case (rather than any other one of the joined Justice's choosing). Therefore, she will likely be less willing to make a very large concession than she would if she could guarantee (through an explicit trade) a major concession in return. Recall the example in supra note 102 of Justice Powell allegedly joining Justice Blackmun's "lamentable" tax opinion in the hope Blackmun would reciprocate by joining his Bakke opinion. In the end, Blackmun did not reciprocate, at least in the Bakke case.
217. In Part I. I modelled solo adjudication as if judges decide cases by first determining the optimal legal rules to address the legal issues raised, and then announcing whatever disposition is dictated by fair application of those legal rules. I believe this accurately describes most, perhaps almost all, Supreme Court decisions. But suppose a Justice instead decides cases by first determining the optimal disposition, and then selecting the optimal rule (according to her intrinsic and relational judgment criteria) from among those available that support the preferred disposition. What strategic opportunities would such a Justice face on a multimember court? Unilateral opportunities arise only when the Justices' sincere positions would lead to a three-disposition stalemate. If only two dispositions are in the running, then each Justice will always maximize the likelihood that his preferred disposition will be the collective choice by voting for it (i.e., voting sincerely for strategic reasons). If three or more dispositions are in play, then a Justice might well decide to vote strategically for his D2 disposition in order to minimize the likelihood that the collective choice will be his D3 disposition. While the choice of the suboptimal disposition is content-driven, the decision can be modelled identically to the fom-driven three disposition deadlock scenario discussed at supra text accompanying note 53. Justices can also improve dispositions through bilateral vote trading. In theory, the trade hypothesized between Justices Wapner and Judy across Case Search and Case Cruel could be driven by each Justice's desire to improve the disposition in one case, even at the expense of a less favorable disposition in the other.
218. See supra note 75.
219. An apt analogy is competitive bowling, a sport playable by individuals or teams. In team bowling, the scores of each team's members are summed, and the team with the higher sum wins. Once each individual toes the mark, she views the activity of bowling just as she would were she competing alone; the same rules, strategies, and other norms apply in each circumstance. The teleology of team bowling thus asks players to behave consistently with the teleology of individual bowling.
220. Here an apt analogy is competitive rowing, another sport playable by individuals or teams. Team rowers are not expected to embrace the same strategies and norms as are solo rowers. For example, a single rower focuses solely on absolute speed; rowers on a team must focus on relative speed as well, lest one side row faster than the other causing the boat to turn. See generally Kornhauser & Sager, supra note 1, at 3-5 (distinguishing between distributed and team group enterprises).
221. Majority rule is not inevitable. One could readily imagine alternative aggregation mechanisms. Perhaps in each case there could be a single final decisionmaker, either the senior Justice in all cases, the presiding Circuit Court Justice over every case arising from her Circuit(s), a rotating Justice for a fixed term, a randomly selected Justice for each case, a designated "expert" appropriate for the subject matter, or the first Justice to circulate a completed opinion. The relevant single decisionmaker would decide the case and write the sole opinion. By tradition, of course, we employ no such system; we employ majority rule across a set of nine Justices, each of whom has one vote per case.
222. See, e.g., Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 IOWA L. REV. 1267, 1273 (1996); Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1006 (1965). But see Robert J. Pushaw, Jr., Article III's Case/Controversy Distinction and the Dual Functions of Federal Courts, 69 NOTRE DAME L. REV. 447 (1994) (suggesting federal courts are properly focused more on law declaration than on dispute resolution in Article III "cases," though not in "controversies"). See generally Hartnett, supra note 51 (defending the primacy of judgments over judicial opinions).
223. See, e.g., Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 IOWA L. REV. 1267, 1273 (1996); Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1006 (1965). But see Robert J. Pushaw, Jr., Article III's Case/Controversy Distinction and the Dual Functions of Federal Courts, 69 NOTRE DAME L. REV. 447 (1994) (suggesting federal courts are properly focused more on law declaration than on dispute resolution in Article III "cases," though not in "controversies"). See generally Hartnett, supra note 51 (defending the primacy of judgments over judicial opinions).
224. See, e.g., Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 IOWA L. REV. 1267, 1273 (1996); Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1006 (1965). But see Robert J. Pushaw, Jr., Article III's Case/Controversy Distinction and the Dual Functions of Federal Courts, 69 NOTRE DAME L. REV. 447 (1994) (suggesting federal courts are properly focused more on law declaration than on dispute resolution in Article III "cases," though not in "controversies"). See generally Hartnett, supra note 51 (defending the primacy of judgments over judicial opinions).
225. See, e.g., Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 IOWA L. REV. 1267, 1273 (1996); Herbert Wechsler, The Courts and the Constitution, 65 COLUM. L. REV. 1001, 1006 (1965). But see Robert J. Pushaw, Jr., Article III's Case/Controversy Distinction and the Dual Functions of Federal Courts, 69 NOTRE DAME L. REV. 447 (1994) (suggesting federal courts are properly focused more on law declaration than on dispute resolution in Article III "cases," though not in "controversies"). See generally Hartnett, supra note 51 (defending the primacy of judgments over judicial opinions).
226. See supra text accompanying note 21.
227. See MURPHY, supra note 2, at 187.
228. In other words, strategic voting that alters the sincere disposition makes dispute resolution essentially incidental to judicial lawmaking, contrary to the initial premise that lawmaking is incidental to case deciding.
229. Query whether the plaintiffs in the early desegregation cases did or should have supported the Court's "all deliberate speed" remedial edict if they believed it would help their cause in the long run, though it precluded meaningful remediation in the short run. More generally, perhaps people who instinctively flinch at the notion of a disposition-changing maneuver might feel differently if they were asked about a hard disposition constraint while under a "veil of ignorance," meaning before they knew whether they would be a litigant in the Instant or a Future Case.
230. The government might, for example, care more about setting favorable precedents in criminal procedure cases than about whether it secures a particular conviction. This same priority is revealed when a repeat-play litigant, after losing a judgment, offers to settle on terms favorable to her opponent in return for an agreement to vacate the adverse legal precedent. See Judith Resnik, Whose Judgment? Vacating Judgments, Preferences for Settlement, and the Role of Adjudication at the Close of the Twentieth Century, 41 UCLA L. REV. 1471 (1994) (discussing and evaluating this phenomenon).
231. Cf. Sosna v. Iowa, 419 U.S. 393 (1975) (holding that the named plaintiff has standing to continue representing a certified class despite the mootness of her personal claim).
232. See, e.g., Pildes & Anderson, supra note 32, at 2204 (submitting that litigants sometimes have a strong interest in the expressive content of an opinion, rather than merely the ultimate disposition).
233. See BICKEL, supra note 37, at 173 ("[T]he policy of avoidance . . . must prevail, despite hardship to the litigant . . . .").
234. See supra notes 37-38 and accompanying text.
235. See Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Construction, 108 HARV. L. REV. 593 (1995) (canvassing and evaluating arguments proposing that courts use various interpretive canons in an effort to mold democratic decisionmaking in desirable ways, such as by interpreting statutes narrowly in order to discipline legislatures to speak with greater clarity).
236. For a provocative argument that such "instrumentalist" interpretive strategies are problematic for precisely this reason, see Bernard W. Bell, Metademocratic Interpretation and Separation of Powers, 2 N.Y.U. J. LEG. & PUB. POLY. 1, 7-18 (1998-99).
237. One might argue that the apparent necessity of deciding the case through a vote switch trumps the sacrosanct disposition principle, but this abandons the notion that the constraint is "hard." Such a necessity argument also presumes that the Court must decide the case, rather than enter a judgment of "affirmed by a deadlocked Court." See supra note 51.
238. For example, in the Craig II scenario I hypothesized that Justice Powell,
239. This appears to have been Walter Murphy's view. See MURPHY, supra note 2, at 188 n.* ("One of the few occasions when this dichotomy [between legal rule and disposition] would raise major problems of ethics in compromise within the Court would be where a Justice would engage in logrolling in the sense of switching his vote on one case where it would change the outcome in exchange for another Justice's switching his vote in a second case. It is possible that the gravity of the two situations would be sufficiently different to make this appear a reasonable choice."). In weighing the value of law improvement against the disvalue of disposition switching, a Justice would again consider many of the MPE factors described previously. See supra section II.A. In addition, the Justice might focus on the difference in legal effect of the two dispositions under consideration. One might value "outcome moderation," which suggests that a switch from affirm to remand is less troublesome than a more stark switch from affirm to reverse. Or, one might value "settled expectations," which suggests that a switch toward the disposition that would have prevailed had the Supreme Court simply denied certiorari is less troublesome (because it preserves the prereview status quo) than a switch away from that disposition.
240. With respect to bilateral vote trading, one can modify the exemplar as follows. Suppose sincere voting in Case Search would have led a fifth, Justice Mills Lane, to vote for the government on a procedural technicality (say, the criminal defendant waived her Fourth Amendment claim), such that the government would have won. Justice Wapner might still broker a deal with would-be-dissenter Justice Judy, offering to trade her a victory in Case Cruel if she joins him in Case Search to forge a majority-opinion coalition denning Fourth Amendment rights narrowly. If Justice Judy agreed, she would switch from her individual sincere disposition (voting for the government rather than the defendant), but this switch would not affect the collective disposition because the government would have won anyway with Justice Mills Lane's vote (albeit through a fractured opinion). With respect to unilateral voting, recall Justice Brennan's gambit in the Patterson example discussed at supra note 87. Brennan temporarily tried to mute the conservative precedential value of the case, through a scheme that required him to vote against rather than for plaintiff Brenda Patterson even though he sincerely thought she should win. Since it was already clear that five Justices would rule against Patterson, his individual switch would not have affected the collective disposition at all. It is quite possible, therefore, that strategic voting designed to improve legal rules will lead individual Justices to switch dispositions without coincidentally causing the Court's collective disposition to switch. Note that while an individual disposition switch does not necessarily generate a collective disposition switch, there can be no switch in the Court's collective disposition unless at least one Justice deviates from her individual sincere disposition.
241. See infra sections III.B and III.C (presenting models suggesting that multimembership improves collective accuracy).
242. See supra note 51.
243. Lon L. Fuller, The Forms and Limits of Adjudication, 92 HARV. L. REV. 353, 364 (1978).
244. It is quite common, for example, for parties to advance "slippery slope" arguments of the following form: "The Court should not rule X today, because such a precedent will lead inexorably to rule Y tomorrow and rule Z the next day, and rule Z is so undesirable as measured by intrinsic criteria that the Court should not start down this path." It is more difficult for litigants today to predict Future Cases that might be complements to today's alternative rules, because complements can spread out in more directions. Still, a party could reasonably predict, for example, the illustrations of complementarity provided earlier. See supra notes 31-32 and accompanying text. Of course, sometimes Justices do embrace legal theories that were not briefed by the parties, perhaps by spontaneously injecting a "new" issue into the case and resolving it based on self-generated reasoning. See McKoy v. North Carolina, 494 U.S. 433, 446 (1990) (Blackmun, J., concurring) ("It is unusual, but hardly unheard of, for this Court to decide significant legal questions on which the parties have not joined issue."); Barbara Palmer, Issue Fluidity and Agenda Setting on the Warren Court, 52 POL. RES. Q. 39 (1999) (concluding that Justices on the Warren Court developed new issues in about one-fourth of all cases). Usually, however, in hindsight the Court's approach was at least foreseeable by sharp counsel as a plausible resolution.
245. It is quite common, for example, for parties to advance "slippery slope" arguments of the following form: "The Court should not rule X today, because such a precedent will lead inexorably to rule Y tomorrow and rule Z the next day, and rule Z is so undesirable as measured by intrinsic criteria that the Court should not start down this path." It is more difficult for litigants today to predict Future Cases that might be complements to today's alternative rules, because complements can spread out in more directions. Still, a party could reasonably predict, for example, the illustrations of complementarity provided earlier. See supra notes 31-32 and accompanying text. Of course, sometimes Justices do embrace legal theories that were not briefed by the parties, perhaps by spontaneously injecting a "new" issue into the case and resolving it based on self-generated reasoning. See McKoy v. North Carolina, 494 U.S. 433, 446 (1990) (Blackmun, J., concurring) ("It is unusual, but hardly unheard of, for this Court to decide significant legal questions on which the parties have not joined issue."); Barbara Palmer, Issue Fluidity and Agenda Setting on the Warren Court, 52 POL. RES. Q. 39 (1999) (concluding that Justices on the Warren Court developed new issues in about one-fourth of all cases). Usually, however, in hindsight the Court's approach was at least foreseeable by sharp counsel as a plausible resolution.
246. Indeed, if one considers the most extreme possibility of a bilateral agreement to trade a vote in the Instant Case for an "IOU," i.e., a promise to trade back a vote in an as-yet-unspecified case, the set consists of all cases on the Court's docket now and in the future. The set is equally large for tacit vote trades.
247. See supra section I.A.2.
248. See, e.g., Fuller, supra note 128, at 366: Adjudication is, then, a device which gives formal and institutional expression to the influence of reasoned argument in human affairs. As such it assumes a burden of rationality not borne by any other form of social ordering. . . . We demand of an adjudicative decision a kind of rationality we do not expect of the results of contract or of voting.
249. See Richard H. Fallon, Jr., "The Rule of Law" as a Concept in Constitutional Discourse, 97 COLUM. L. REV. 1, 18-19 (1997) (describing a legal process conception of the "rule of law" as requiring, inter alia, a "reasoned elaboration of the connection between recognized, pre-existing sources of legal authority and the determination of rights and responsibilities in particular cases").
250. But see supra note 38 (describing theoretical opportunity for lower court judges to bundle issues through strategic protection against overruling).
251. Some might find it helpful to recast this argument from the perspective of a Justice whose jurisprudential paradigm is that of a Dworkinian coherence theorist. See generally RONALD DWORKIN, LAW'S EMPIRE (1986). Viewing Case Search in isolation, Justice Hercules would rank the available doctrinal rules according to their "integrity, that is, their consistency with the best set of principles that can justify the most of existing outcomes. The "rieht" answer is that with the greatest integrity so measured. The other answers can be ranked according to how far removed they are from the ideal; an answer that is fundamentally inconsistent with foundational legal principles will be worse than an answer that is merely in tension with a weaker or lower level principle. Viewing Cases Search and Cruel as a package, Justice Hercules can still rank each of the possible combinations of answers according to their "integrity." Of course, assuming no relational judgment criteria link the two issues, the best combination of rules will be the best Fourth Amendment rule plus the best Eight Amendment rule, S+ & C+. But Hercules can still rank the imperfect alternatives, and his coherence model will provide a reason to favor one imperfect combination over the next, e.g., package S- & C+ over package S+ & C- over package S- & C-.
252. See, e.g., supra notes 28-30 and accompanying text (tradeoff between intrinsic and relational criteria, where Justice Solo must rank the imperfect alternatives of maintaining consistency with an erroneous precedent or correcting the error but undermining consistency); supra text accompanying note 64 (tradeoff between the imperfect alternatives of voting sincerely and fracturing the Court versus forging a coalition for a suboptimal position); cf. Schauer, supra note 18, at 869-70 ("[P]erhaps that very striving for the optimal is not part of what law is, and maybe law, more positivistically conceived, is at bottom a second-best solution, seeking to optimize in the long term in a world in which the attempt to optimize in the short-run may yield an unacceptable number of short-run errors.").
253. Perhaps coherence theorists are used to resolving discrete legal problems by invoking a single or connected set of local or intermediate principles to justify the decisions in a discrete, unified realm of law - for example, drawing upon only Fourth Amendment principles to decide a novel Fourth Amendment issue. In theory, however, the requirement of coherence or integrity applies to the entire set of legal materials, such that prioritizations and accommodations among seemingly different intermediate principles are attainable. But cf. Joseph Raz, The Relevance of Coherence, 72 B.U. L. REV. 273, 297-314 (1992) (criticizing "global coherence accounts" and defending "local coherence," meaning coherence of doctrine in discrete fields of law). If the objection to vote trading turns on the distinction between global and local coherence, then surely the unreflective condemnation of vote trading is undertheorized.
254. See, e.g., supra notes 28-34 and accompanying text (tradeoff between intrinsic and relational criteria, where Justice Solo must compare the substantive values underlying the merits to rule-of-law values such as stability and predictability); supra text accompanying note 64 (tradeoff between the substantive values underlying the merits and structural values secured by particular coalitions).
255. One might view tacit vote trading as somewhat more troubling than explicit vote trading in this respect. With a negotiated trade, both Justices self-consciously engage in a precise evaluation of comparative MPEs, an analysis grounded in legal principle. The Justice initiating a tacit trade by joining a suboptimal opinion in the Instant Case must engage in a more speculative analysis, because he does not know for sure the precise reciprocal benefit he will receive. While his decision to initiate the informal trade still reflects principled reasoning about the comparative value of legal rules, the uncertainty involved makes the reasoning process seem somehow less rigorous and more conjectural.
256. See, e.g., Shapiro, supra note 47.
257. See id. at 737; Gulati & McCauliff, supra note 13, at 193-94. One might quibble about the extent to which candor truly constrains judicial decisionmaking. First, given the plasticity of law, frequently Justices can "plausibly justify" multiple positions. Second, while Justices might be somewhat sensitive to criticism by their colleagues rarely will a Justice "receive any sort of critical attention" by members of the public "that might get back to the judge and alter his future behavior." POSNER, supra note 4, at 127. Moreover, perhaps other internal norms and institutions propel Justices towards reasoned decisionmaking, rendering a candor requirement largely superfluous. But for present purposes I accept the conventional wisdom that candor matters to some important degree.
258. See id. at 737; Gulati & McCauliff, supra note 13, at 193-94. One might quibble about the extent to which candor truly constrains judicial decisionmaking. First, given the plasticity of law, frequently Justices can "plausibly justify" multiple positions. Second, while Justices might be somewhat sensitive to criticism by their colleagues rarely will a Justice "receive any sort of critical attention" by members of the public "that might get back to the judge and alter his future behavior." POSNER, supra note 4, at 127. Moreover, perhaps other internal norms and institutions propel Justices towards reasoned decisionmaking, rendering a candor requirement largely superfluous. But for present purposes I accept the conventional wisdom that candor matters to some important degree.
259. See, e.g., Shapiro, supra note 47, at 737.
260. See Edwards, supra note 40, at 1369 (emphasizing the importance of public perceptions of judicial behavior); Kornhauser & Sager, supra note 18, at 92 (noting that decisionmaking processes can be judged by their "tendency . . . to inspire belief among those affected by the resulting decisions that those decisions are proper").
261. Shapiro, supra note 47, at 743.
262. Shapiro, supra note 47, at 743 n.54; see also id. at 743 ("[T]he sticking point can and should be an unwillingness to make or join in a statement that does not represent the judge's views and that will mislead the opinion's readers as to what those views are.").
263. Cf. Kornhauser & Sager, supra note 1, at 7 n.12 ("The exact limits of appropriate judicial behavior are difficult to articulate.").
264. Compare Marshall's early views on the importance of solidarity, see supra note 71, with Scalia's, see Scalia, supra note 75, at 35 (concluding that solidarity is no longer so important for preserving the Court's prestige and authority "at its current stage of development and in the current age").
265. See Shapiro, supra note 47, at 738 (positing that arguments against dissembling do not "demonstrate the need for candor as an unshakeable rule of judicial behavior").
266. An explicit vote trade could be revealed in two obvious ways. First, the trading Justices could explain their own insincere votes in separate concurrences. Second, the Court as a collective entity could reveal the vote trade, perhaps by explaining the trade through a per curiam opinion. Neither method of vote-trade revelation would undermine the authority of the rules articulated in either of the traded cases, and hence neither would be self-defeating. It is more difficult to imagine complete candor from a Justice initiating a tacit vote trade. He would have to both admit insincere support for the rule in the Instant Case, and express hope that he receives a more-valued concession from the author in a Future Case. He cannot readily provide a full explanation of his comparative MPE evaluation, for he cannot identify the second case with certainty. In contrast, the reciprocating Justice can be candid because, coming second, she can identify both traded rules.
267. One might purport categorically to distinguish between vote trading (both explicit and implicit) and all unilateral maneuvers on the ground that observers cannot even identify the issues being compared through an MPE assessment with a vote trade, whereas they can at least identify the concerns being compared with both form-driven strategies (the issue's merits versus institutional benefits) and content-driven strategies (just the issue's merits). See supra text accompanying note 130 (making the same point in discussing litigant-participation objection). But this distinction, while perhaps relevant to the public perception concern, is not fully responsive to the discipline and accountability concerns. The apprehension that, absent pressure to articulate her thoughts comprehensively, a Justice might more frequently take positions that are poorly reasoned or ad hoc or reflect impermissible factors applies whenever any aspect of a decision is left unexplained. After all, the failure to discuss even the seemingly mundane question of why she feels coalition-building is sufficiently important to justify insincerity in one case but not the next raises all of these concerns. In this respect, then, the difference between vote trading and other maneuvers seems one of degree and not of kind.
268. See, e.g., ELIZABETH ANDERSON, VALUE IN ETHICS AND ECONOMICS (1993); MARGARET RADIN, CONTESTED COMMODITIES (1996); see also ANDERSON, supra, at 218 (suggesting a need to "consider whether the ways we produce and exchange goods adequately express the other ways we properly value them or one another").
269. See, e.g., ELIZABETH ANDERSON, VALUE IN ETHICS AND ECONOMICS (1993); MARGARET RADIN, CONTESTED COMMODITIES (1996); see also ANDERSON, supra, at 218 (suggesting a need to "consider whether the ways we produce and exchange goods adequately express the other ways we properly value them or one another").
270. See, e.g., ELIZABETH ANDERSON, VALUE IN ETHICS AND ECONOMICS (1993); MARGARET RADIN, CONTESTED COMMODITIES (1996); see also ANDERSON, supra, at 218 (suggesting a need to "consider whether the ways we produce and exchange goods adequately express the other ways we properly value them or one another").
271. See, e.g., ANDERSON, supra note 151, at 168-216 (applying critique to various issues concerning women's labor and environmental cost-benefit analysis); RADIN, supra note 151, at 131-53 (applying critique to prostitution and baby selling).
272. See, e.g., ANDERSON, supra note 151, at 168-216 (applying critique to various issues concerning women's labor and environmental cost-benefit analysis); RADIN, supra note 151, at 131-53 (applying critique to prostitution and baby selling).
273. See ANDERSON, supra note 151, at 144-47, 145 (describing the norms structuring market relations as having five features: market attitudes are "impersonal, egoistic, exclusive, want-regarding, and oriented to 'exit' rather than 'voice.' . . . [These norms] express a shared understanding of the point and meaning of market relations recognized by every experienced participant."). Scholars sometimes resist commodification through market imagery on the ground that the metaphor can have a "domino effect" of sorts by changing actual practices to conform to the underlying imagery. See RADIN, supra note 151, at 13-14, 95-101. But such an effect seems unlikely here. I doubt anyone would claim that vote trading of the sort I've described might eventually give way to a literal market in which Justices exchange votes for money or opera tickets. One can, I suppose, construct somewhat more plausible slippery slopes. For example, what if Justice Judy said to Justice Wapner, "I will support your position in Case Cruel, even though I disagree with it, if you promise to retire from the Court at the end of the Term." Because Judy believes that Wapner generally creates legal errors in important cases, Wapner's replacement would likely improve the law in a long-term, global sense. In a loose sense the "currency" of this trade remains legal principle and such a trade strikes me as more principled and less commodified than a straightforward exchange of votes for money, but yet might still be more disconcerting than the vote-trading exemplar.
274. See ANDERSON, supra note 151, at 144-47, 145 (describing the norms structuring market relations as having five features: market attitudes are "impersonal, egoistic, exclusive, want-regarding, and oriented to 'exit' rather than 'voice.' . . . [These norms] express a shared understanding of the point and meaning of market relations recognized by every experienced participant."). Scholars sometimes resist commodification through market imagery on the ground that the metaphor can have a "domino effect" of sorts by changing actual practices to conform to the underlying imagery. See RADIN, supra note 151, at 13-14, 95-101. But such an effect seems unlikely here. I doubt anyone would claim that vote trading of the sort I've described might eventually give way to a literal market in which Justices exchange votes for money or opera tickets. One can, I suppose, construct somewhat more plausible slippery slopes. For example, what if Justice Judy said to Justice Wapner, "I will support your position in Case Cruel, even though I disagree with it, if you promise to retire from the Court at the end of the Term." Because Judy believes that Wapner generally creates legal errors in important cases, Wapner's replacement would likely improve the law in a long-term, global sense. In a loose sense the "currency" of this trade remains legal principle and such a trade strikes me as more principled and less commodified than a straightforward exchange of votes for money, but yet might still be more disconcerting than the vote-trading exemplar.
275. This concern underlies a common objection to the judicial practice of enabling parties to settle cases on appeal with one of the settlement terms being the vacatur of a lower court precedent. See supra note 115. This practice comes close to the construction of a market in which losing litigants can "purchase" and then purge their adjudicatory loss, which undermines the social construction of precedents as public goods. See U.S. Bancorp Mortgage Co. v. Bonner Mall, 513 U.S. 18, 26 (1994) (declining to implement settlement calling for vacatur of an appellate opinion with precedential significance, in part because judicial precedents are public goods and "not merely the property of private litigants"); Resnik, supra note 115, at 1526-32 (discussing vacatur practice with respect to the "meaning of courts as institutions").
276. This concern underlies a common objection to the judicial practice of enabling parties to settle cases on appeal with one of the settlement terms being the vacatur of a lower court precedent. See supra note 115. This practice comes close to the construction of a market in which losing litigants can "purchase" and then purge their adjudicatory loss, which undermines the social construction of precedents as public goods. See U.S. Bancorp Mortgage Co. v. Bonner Mall, 513 U.S. 18, 26 (1994) (declining to implement settlement calling for vacatur of an appellate opinion with precedential significance, in part because judicial precedents are public goods and "not merely the property of private litigants"); Resnik, supra note 115, at 1526-32 (discussing vacatur practice with respect to the "meaning of courts as institutions").
277. See RADIN, supra note 151, at 1-2, 12-15 (describing and distinguishing between "literal" and "metaphorical" markets).
278. See id. at 83-93 (raising concerns potentially posed by metaphorical commodification).
279. It appears to make such a difference in the context of legislative activity. The practice of "vote buying" through political bribery, literally a citizen-driven market, is universally condemned. See Pamela S. Karlan, Not by Money but by Virtue Won? Vote Trafficking and the Voting Rights System, 80 VA. L. REV. 1455 (1994); Richard Hasen, Vote Buying, (unpublished manuscript, on file with author). In contrast, the practice of legislative logrolling, though not without its critics, is generally tolerated. Trading votes for and against different proposed bills simply does not seem to commodify legislation in the same way as would open vote buying by the citizenry or legislators.
280. It appears to make such a difference in the context of legislative activity. The practice of "vote buying" through political bribery, literally a citizen-driven market, is universally condemned. See Pamela S. Karlan, Not by Money but by Virtue Won? Vote Trafficking and the Voting Rights System, 80 VA. L. REV. 1455 (1994); Richard Hasen, Vote Buying, (unpublished manuscript, on file with author). In contrast, the practice of legislative logrolling, though not without its critics, is generally tolerated. Trading votes for and against different proposed bills simply does not seem to commodify legislation in the same way as would open vote buying by the citizenry or legislators.
281. For example, when a Justice resolving a single issue confronts intrinsic and relational judgment criteria that pull in opposite directions, he must value and compare the strength of the vectors. See supra notes 28-34 and accompanying text. And when a Justice considers whether to vote insincerely to forge a majority-opinion coalition, he must appraise and compare the value of one feasible collective product (a fractured Court articulating his sincere position among others) with another (a unified coalition supporting a nonoptimal legal rule). See supra text accompanying note 64.
282. Consider a parent who promises his schoolchild that, if she studies hard and improves her test scores, he will treat her to a day at Disneyland. Some might find resort to this parental technique disconcerting, pejoratively considering this a bribe. Yet the economic element does not drive out space for competing social understandings as well; the same act entails and expresses such values as parental concern, familial communication, academic dedication, a desire to please others, and mutual respect.
283. See the example provided in supra note 159.
284. RADIN, supra note 151, at 117. Thus, for example, one might argue that the "indicia of commodification" are even more "attenuated" for tacit than for explicit vote trading. While the participants engage in an informal trade, there is no explicit bartering process in which they simultaneously compare their relative valuations of nongermane rules. The trade is still based on the rational calculations of each Justice, but it feels less like an economic exchange and more like the informal tit-for-tat relationship of neighbors, each of whom does favors for the other based on the expectation that the other will respond in kind within a reasonable time such that the relationship is mutually beneficial.
285. See James Beam Distilling Co. v. Georgia, 501 U.S. 529, 549 (1991) (Scalia, J., concurring): [The judicial power] is "to say what the law is," not the power to change it. I am not so naive (nor do I think our forebears were) as to be unaware that judges in a real sense "make" law. But they make it as judges make it, which is to say as though they were "finding" it - discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be. (citation omitted).
286. One common accusation of "judicial legislating" charges that a particular Justice has based her decision in a case on nonlegal factors, such as her personal values and policy preferences. This charge is inapt here; in the scenarios under discussion, vote-trading Justices rest their decisions on their intrinsic and relational judgment criteria supplemented with a magnitude of perceived error assessment. A second common refrain is that judges "act like legislators" when they articulate a detailed and complicated doctrinal formula, such as Roe's trimester distinctions and Miranda's detailed police warnings. This charge is conceptually weak, for the reasons explained in Maxwell L. Stearns, Standing Back from the Forest: Justiciability and Social Choice, 83 CAL. L. REV. 1309, 1390-92 (1995), and David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. CHI. L. REV. 190 (1988). In any event, it is inapt here; traded rules can be simple or detailed just as sincere rules can be simple or detailed, and there is no reason to suspect any connection between trading and complexity. A third frequent refrain is that judges "act like legislators" when they pronounce legal rules unnecessarily, either by ignoring the case-or-controversy requirement, by reaching issues that are not necessary to resolving the dispute, or by making sweeping statements of dicta. All three phenomena ignore the injunction that courts, unlike legislatures, should not set their own agenda. See Stearns, supra, at 1389 ("Not only are courts limited to and by actual cases in their lawmaking capacity, but in deciding cases, they are generally expected to abstain from creating positive law unless necessary to resolve the case before them."). This concern is also inapt here; there is no necessary connection between vote trading and agenda setting. In the vote-trading exemplar, for example, I have assumed that the rules traded across Cases Search and Cruel are rules necessary to the decision in both disputes. There is no good reason to think that Justices engaged in vote trading would ignore intrinsic judgment criteria dictating narrow or cautious decisionmaking any more than those not so engaged.
287. One common accusation of "judicial legislating" charges that a particular Justice has based her decision in a case on nonlegal factors, such as her personal values and policy preferences. This charge is inapt here; in the scenarios under discussion, vote-trading Justices rest their decisions on their intrinsic and relational judgment criteria supplemented with a magnitude of perceived error assessment. A second common refrain is that judges "act like legislators" when they articulate a detailed and complicated doctrinal formula, such as Roe's trimester distinctions and Miranda's detailed police warnings. This charge is conceptually weak, for the reasons explained in Maxwell L. Stearns, Standing Back from the Forest: Justiciability and Social Choice, 83 CAL. L. REV. 1309, 1390-92 (1995), and David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. CHI. L. REV. 190 (1988). In any event, it is inapt here; traded rules can be simple or detailed just as sincere rules can be simple or detailed, and there is no reason to suspect any connection between trading and complexity. A third frequent refrain is that judges "act like legislators" when they pronounce legal rules unnecessarily, either by ignoring the case-or-controversy requirement, by reaching issues that are not necessary to resolving the dispute, or by making sweeping statements of dicta. All three phenomena ignore the injunction that courts, unlike legislatures, should not set their own agenda. See Stearns, supra, at 1389 ("Not only are courts limited to and by actual cases in their lawmaking capacity, but in deciding cases, they are generally expected to abstain from creating positive law unless necessary to resolve the case before them."). This concern is also inapt here; there is no necessary connection between vote trading and agenda setting. In the vote-trading exemplar, for example, I have assumed that the rules traded across Cases Search and Cruel are rules necessary to the decision in both disputes. There is no good reason to think that Justices engaged in vote trading would ignore intrinsic judgment criteria dictating narrow or cautious decisionmaking any more than those not so engaged.
288. One common accusation of "judicial legislating" charges that a particular Justice has based her decision in a case on nonlegal factors, such as her personal values and policy preferences. This charge is inapt here; in the scenarios under discussion, vote-trading Justices rest their decisions on their intrinsic and relational judgment criteria supplemented with a magnitude of perceived error assessment. A second common refrain is that judges "act like legislators" when they articulate a detailed and complicated doctrinal formula, such as Roe's trimester distinctions and Miranda's detailed police warnings. This charge is conceptually weak, for the reasons explained in Maxwell L. Stearns, Standing Back from the Forest: Justiciability and Social Choice, 83 CAL. L. REV. 1309, 1390-92 (1995), and David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. CHI. L. REV. 190 (1988). In any event, it is inapt here; traded rules can be simple or detailed just as sincere rules can be simple or detailed, and there is no reason to suspect any connection between trading and complexity. A third frequent refrain is that judges "act like legislators" when they pronounce legal rules unnecessarily, either by ignoring the case-or-controversy requirement, by reaching issues that are not necessary to resolving the dispute, or by making sweeping statements of dicta. All three phenomena ignore the injunction that courts, unlike legislatures, should not set their own agenda. See Stearns, supra, at 1389 ("Not only are courts limited to and by actual cases in their lawmaking capacity, but in deciding cases, they are generally expected to abstain from creating positive law unless necessary to resolve the case before them."). This concern is also inapt here; there is no necessary connection between vote trading and agenda setting. In the vote-trading exemplar, for example, I have assumed that the rules traded across Cases Search and Cruel are rules necessary to the decision in both disputes. There is no good reason to think that Justices engaged in vote trading would ignore intrinsic judgment criteria dictating narrow or cautious decisionmaking any more than those not so engaged.
289. See, e.g., WILLIAM J. BAUMOL, WELFARE ECONOMICS AND THE THEORY OF THE STATE 45 (1965) ("[L]og-rolling transforms voting from a procedure which takes into account only ordinal preferences into one which can reflect the strength of feeling."). See generally JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT 131-45 (1962) (modelling legislative logrolling); ROBERT A. DAHL, A PREFACE TO DEMOCRATTC THEORY 90-123 (1956) (discussing issues raised by variable intensities).
290. See, e.g., WILLIAM J. BAUMOL, WELFARE ECONOMICS AND THE THEORY OF THE STATE 45 (1965) ("[L]og-rolling transforms voting from a procedure which takes into account only ordinal preferences into one which can reflect the strength of feeling."). See generally JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT 131-45 (1962) (modelling legislative logrolling); ROBERT A. DAHL, A PREFACE TO DEMOCRATTC THEORY 90-123 (1956) (discussing issues raised by variable intensities).
291. See, e.g., WILLIAM J. BAUMOL, WELFARE ECONOMICS AND THE THEORY OF THE STATE 45 (1965) ("[L]og-rolling transforms voting from a procedure which takes into account only ordinal preferences into one which can reflect the strength of feeling."). See generally JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT 131-45 (1962) (modelling legislative logrolling); ROBERT A. DAHL, A PREFACE TO DEMOCRATTC THEORY 90-123 (1956) (discussing issues raised by variable intensities).
292. Willmoore Kendall & George W. Carey, The "Intensity" Problem and Democratic Theory, 62 AM. POL. SCI. REV. 5, 6 (1968). Whether this defense of vote trading is persuasive or not is the subject of a sizable political theory literature. Cf. DAHL, supra note 164, at 119 (arguing that no enduring solution exists to the problem in democratic theory of whether relative intensities ought to be weighed). As a normative matter, the practice of legislative logrolling is generally accepted, even if sometimes begrudgingly. See BUCHANAN & TULLOCK, supra note 164, at 140.
293. Willmoore Kendall & George W. Carey, The "Intensity" Problem and Democratic Theory, 62 AM. POL. SCI. REV. 5, 6 (1968). Whether this defense of vote trading is persuasive or not is the subject of a sizable political theory literature. Cf. DAHL, supra note 164, at 119 (arguing that no enduring solution exists to the problem in democratic theory of whether relative intensities ought to be weighed). As a normative matter, the practice of legislative logrolling is generally accepted, even if sometimes begrudgingly. See BUCHANAN & TULLOCK, supra note 164, at 140.
294. Willmoore Kendall & George W. Carey, The "Intensity" Problem and Democratic Theory, 62 AM. POL. SCI. REV. 5, 6 (1968). Whether this defense of vote trading is persuasive or not is the subject of a sizable political theory literature. Cf. DAHL, supra note 164, at 119 (arguing that no enduring solution exists to the problem in democratic theory of whether relative intensities ought to be weighed). As a normative matter, the practice of legislative logrolling is generally accepted, even if sometimes begrudgingly. See BUCHANAN & TULLOCK, supra note 164, at 140.
295. See supra note 30.
296. See POSNER, supra note 4, at 131 ("Many cases cannot be decided by reasoning from conventional legal materials. Such cases require the judge to exercise a legislative judgment, although a more confined one than 'real' legislators are authorized to exercise.").
297. Given the Supreme Court's certiorari discretion, the Court has close to plenary power to set its agenda negatively in the form of a decision not to hear a particular case or issue. But the Court still lacks affirmative agenda control because it cannot create a vehicle for deciding a particular issue; it must await one.
298. See Steven D. Smith, Courts, Creativity, and the Duty to Decide a Case, 1985 U. ILL. L. REV. 573, 594 ("Critics of judicial creativity assert that courts lack the information-gathering ability, the representative base, the time and administrative resources, and the political wisdom to make policy.").
299. See Frank Easterbrook, Stability and Reliability in Judicial Decisions, 73 CORNELL L. REV. 422, 423 (1988) (noting the tension between stare decisis and the benefit of hindsight).
300. See PHILIP B. KURLAND, POLITICS, THE CONSTITUTION, AND THE WARREN COURT 94 (1970) (quoting Lord Mansfield as advising "new judges to state their judgments and withhold their reasons, since their judgments were probably right and their reasons probably wrong"); Cass, supra note 13, at 992 (noting that the common law's traditional "preference for incrementalism reflects the view that rationales become less trustworthy guides to future decisions the more they extrapolate from the base of known fact-settings to which they apply").
301. See PHILIP B. KURLAND, POLITICS, THE CONSTITUTION, AND THE WARREN COURT 94 (1970) (quoting Lord Mansfield as advising "new judges to state their judgments and withhold their reasons, since their judgments were probably right and their reasons probably wrong"); Cass, supra note 13, at 992 (noting that the common law's traditional "preference for incrementalism reflects the view that rationales become less trustworthy guides to future decisions the more they extrapolate from the base of known fact-settings to which they apply").
302. See ANTHONY KRONMAN, THE LOST LAWYER 318-19 (1993).
303. It is not, however, beyond question. See Frederick Schauer, Giving Reasons, 47 STAN. L. REV. 633, 655-66 (1995) ("Although there may be good reasons to worry about the distorting effects of uninformed speculation, there may be equally good reasons to worry about the distorting effects of decisionmaking overinformed by the grip of a particular instance.").
304. Legislatures frequently consider various issues together in single bills, either in an effort to deal comprehensively with an issue or as a result of logrolling. One might want an independent body, when addressing these issues, to separate particular parts of laws from each other and particular applications of laws from each other.
305. See supra notes 28-34 and accompanying text; see also note 34 (noting that relational criteria can generate multiple equilibria in rule optimization, where Justice Solo is perfectly indifferent between two sets of complements).
306. Kornhauser & Sager, supra note 18, at 99. For proof, see id. at 97-99, and sources cited in id. at 98 n.20. See also I.J. Good & Gordon Tullock, Judicial Errors and a Proposal for Reform, 13 J. LEGAL STUD. 289, 291-94 (1984). The basic model assumes that, on average, each Justice on the Court is more likely than not to reach the "best answer" to every legal question. Even if different Justices have varying degrees of probability of reaching the correct answer, the probability of the group majority being correct still increases as the group gets larger so long as the average accuracy rate exceeds 50%. See Bernard Grofman & Scott L. Feld, Rousseau's General Will: A Condorcetian Perspective, 82 AM. POL. SCI. REV. 567, 570 (1988). Note that while redundancy with majority vote enhances accuracy, depending on the vote, it does not come close to guaranteeing it. See, e.g., Good & Tullock, supra, at 293-94 (noting that for example, under a certain set of assumptions, with a 5-4 vote "the probability that the Court's decision is wrong is at least 37 percent").
307. Kornhauser & Sager, supra note 18, at 99. For proof, see id. at 97-99, and sources cited in id. at 98 n.20. See also I.J. Good & Gordon Tullock, Judicial Errors and a Proposal for Reform, 13 J. LEGAL STUD. 289, 291-94 (1984). The basic model assumes that, on average, each Justice on the Court is more likely than not to reach the "best answer" to every legal question. Even if different Justices have varying degrees of probability of reaching the correct answer, the probability of the group majority being correct still increases as the group gets larger so long as the average accuracy rate exceeds 50%. See Bernard Grofman & Scott L. Feld, Rousseau's General Will: A Condorcetian Perspective, 82 AM. POL. SCI. REV. 567, 570 (1988). Note that while redundancy with majority vote enhances accuracy, depending on the vote, it does not come close to guaranteeing it. See, e.g., Good & Tullock, supra, at 293-94 (noting that for example, under a certain set of assumptions, with a 5-4 vote "the probability that the Court's decision is wrong is at least 37 percent").
308. Kornhauser & Sager, supra note 18, at 99. For proof, see id. at 97-99, and sources cited in id. at 98 n.20. See also I.J. Good & Gordon Tullock, Judicial Errors and a Proposal for Reform, 13 J. LEGAL STUD. 289, 291-94 (1984). The basic model assumes that, on average, each Justice on the Court is more likely than not to reach the "best answer" to every legal question. Even if different Justices have varying degrees of probability of reaching the correct answer, the probability of the group majority being correct still increases as the group gets larger so long as the average accuracy rate exceeds 50%. See Bernard Grofman & Scott L. Feld, Rousseau's General Will: A Condorcetian Perspective, 82 AM. POL. SCI. REV. 567, 570 (1988). Note that while redundancy with majority vote enhances accuracy, depending on the vote, it does not come close to guaranteeing it. See, e.g., Good & Tullock, supra, at 293-94 (noting that for example, under a certain set of assumptions, with a 5-4 vote "the probability that the Court's decision is wrong is at least 37 percent").
309. Kornhauser & Sager, supra note 18, at 99. For proof, see id. at 97-99, and sources cited in id. at 98 n.20. See also I.J. Good & Gordon Tullock, Judicial Errors and a Proposal for Reform, 13 J. LEGAL STUD. 289, 291-94 (1984). The basic model assumes that, on average, each Justice on the Court is more likely than not to reach the "best answer" to every legal question. Even if different Justices have varying degrees of probability of reaching the correct answer, the probability of the group majority being correct still increases as the group gets larger so long as the average accuracy rate exceeds 50%. See Bernard Grofman & Scott L. Feld, Rousseau's General Will: A Condorcetian Perspective, 82 AM. POL. SCI. REV. 567, 570 (1988). Note that while redundancy with majority vote enhances accuracy, depending on the vote, it does not come close to guaranteeing it. See, e.g., Good & Tullock, supra, at 293-94 (noting that for example, under a certain set of assumptions, with a 5-4 vote "the probability that the Court's decision is wrong is at least 37 percent").
310. Because A receives more votes that the combined sum of its competitors, A is more likely accurate than not-A, let alone than any individual competitor. When judgments can be issued in terms of numerical values, then individuals' answer need not be identical for their choices to "converage" on a single choice through an arithmetic mean. Consider judges at an Olympics diving event, each of whom scores each dive on a 1-10 point scale based solely on her sincere assessment of the dive. Suppose there are five judges, and each dive is scored according to the mean of the individual scores, e.g., 9.25. This tally, despite an arguably artificial convergence, is more likely to be an accurate collective judgment of the dive than is any other. Sometimes judges may likewise select from a set of numerical choices arrayed along a spectrum, for example, the determination of compensation awards in civil cases, or fines and imprisonment terms in criminal cases. But these types of choices are rarely presented to multimember panels; usually such decisions are left to single-judge trial courts. For an intriguing exploration of strategic voting opportunities in such rare contexts, see Omri Ben-Shahar, Strategic Behavior in Judicial Panels (June 1992) (unpublished manuscript, on file with author).
311. For example, suppose that sincere voting in both Cases Search and Cruel leads to three minority factions supporting a left view, a middle view, and a right view. Members of the left faction in Case Search might agree with members of the right faction in Case Cruel to vote for the middle in both cases. This trade would create a posttrade majority for the middl position in both cases, without undermining a sincere-majority position in either.
312. This conclusion follows as well from each of the other two collegial models operationalizing the teleology of accuracy, discussed in infra sections III.B.3 and III.C.
313. See supra note 72.
314. See Kornhauser & Sager, supra note 18, at 99.
315. Strategic voting that converts the sincere-plurality into a winning majority position is, of course, acceptable.
316. This conclusion holds whether some sincere supporters of A shifted to B or C, or whether some sincere supporters of B or C shifted to the other.
317. The point of convergence depends on the Justices' rankings. It is certainly plausible that the original supporters of rules (or outcomes) B and C would converge on one of those two rules (or outcomes) and leave the original plurality winner in the minority position.
318. See supra note 75.
319. Sometimes the Justices themselves use head counting as a means of supporting their positions. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 912 n.1 (1992) (Stevens, J., concurring in part and dissenting in part) ("In the last 19 years, 15 Justices have confronted the basic issue presented in Roe v. Wade, 413 U.S. 113 (1973). Of those, 11 have voted as the majority does today . . . . Only four - all of whom happen to be on the Court today - have reached the opposite conclusion."); see also Meredith Kolsky, Note, Justice William Johnson and the History of the Supreme Court Dissent, 83 GEO. L.J. 2069, 2085 (1995) ("[K]nowing the number of Justices who dissent from an opinion and how they disagree will inform people's views about the legitimacy and force of the opinion."). Such revelations are meaningful only if there is good reason to think that the articulated positions are sincere.
320. Sometimes the Justices themselves use head counting as a means of supporting their positions. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 912 n.1 (1992) (Stevens, J., concurring in part and dissenting in part) ("In the last 19 years, 15 Justices have confronted the basic issue presented in Roe v. Wade, 413 U.S. 113 (1973). Of those, 11 have voted as the majority does today . . . . Only four - all of whom happen to be on the Court today - have reached the opposite conclusion."); see also Meredith Kolsky, Note, Justice William Johnson and the History of the Supreme Court Dissent, 83 GEO. L.J. 2069, 2085 (1995) ("[K]nowing the number of Justices who dissent from an opinion and how they disagree will inform people's views about the legitimacy and force of the opinion."). Such revelations are meaningful only if there is good reason to think that the articulated positions are sincere.
321. Sometimes the Justices themselves use head counting as a means of supporting their positions. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 912 n.1 (1992) (Stevens, J., concurring in part and dissenting in part) ("In the last 19 years, 15 Justices have confronted the basic issue presented in Roe v. Wade, 413 U.S. 113 (1973). Of those, 11 have voted as the majority does today . . . . Only four - all of whom happen to be on the Court today - have reached the opposite conclusion."); see also Meredith Kolsky, Note, Justice William Johnson and the History of the Supreme Court Dissent, 83 GEO. L.J. 2069, 2085 (1995) ("[K]nowing the number of Justices who dissent from an opinion and how they disagree will inform people's views about the legitimacy and force of the opinion."). Such revelations are meaningful only if there is good reason to think that the articulated positions are sincere.
322. See, e.g., Shapiro, supra note 47, at 743 n.54 ("Perhaps here, and elsewhere, the [candor] restraint should require that the judge not materially mislead the reader.").
323. In the vote-trading exemplar, for example, Justices Wapner and Judy may recognize the trading opportunity across Cases Search and Cruel and begin negotiating even before it is clear whether or not the final postdeliberative sincere-collective vote in either case would generate a majority-backed outcome.
324. There appears to be an unwritten convention that, unless recused, a Justice may not vote to "abstain" on grounds of either incertitude or equipoise.
325. See, e.g., POSNER, supra note 4, at 123 (noting that on a three-judge panel if "one judge has a strong opinion on the proper outcome of the case . . . the other judges, if not terribly interested in the case, may simply cast their vote with the 'opinionated' judge"); cf. PERRY, supra note 81, at 169 ("[I]f three Justices feel strongly that cert, should be granted, sometimes I will give a fourth vote. I will say that if you all feel that strongly, I will vote with you on that." (quoting an unnamed Supreme Court Justice discussing the cert. petition process) (internal quotation marks omitted)).
326. See, e.g., POSNER, supra note 4, at 123 (noting that on a three-judge panel if "one judge has a strong opinion on the proper outcome of the case . . . the other judges, if not terribly interested in the case, may simply cast their vote with the 'opinionated' judge"); cf. PERRY, supra note 81, at 169 ("[I]f three Justices feel strongly that cert, should be granted, sometimes I will give a fourth vote. I will say that if you all feel that strongly, I will vote with you on that." (quoting an unnamed Supreme Court Justice discussing the cert. petition process) (internal quotation marks omitted)).
327. In his study of the certiorari-granting process, H.W. Perry confirmed the general proposition that Justices vary in their degrees of conviction: "Each Justice seems to have certain areas, large and small, where he feels strongly about how doctrine should proceed or, for some reason, cares strongly about the outcome of a particular case. It may well be something about which the rest of the brethren are dispassionate." PERRY, supra note 81, at 280.
328. Which is what actually happens in professional basketball: a referee with a clearer vantage point will often "overrule" her colleagues if they are less sure of their judgment.
329. See, e.g., Pildes & Anderson, supra note 32, at 2133-34 (describing this view).
330. See Sherman J. Clark, A Populist Critique of Direct Democracy, 112 HARV. L. REV. 434 (1998) (direct democracy distorts popular input by precluding the expression of relative priorities among issues); Jeremy Waldron, Legislation, Authority, and Voting, 84 GEO. L.J. 2185, 2211 (1996) (noting that while "according equal weight . . . to individual votes is a way of respecting persons," it does not follow that "either fairness or equal respect for persons requires majority decision").
331. See Sherman J. Clark, A Populist Critique of Direct Democracy, 112 HARV. L. REV. 434 (1998) (direct democracy distorts popular input by precluding the expression of relative priorities among issues); Jeremy Waldron, Legislation, Authority, and Voting, 84 GEO. L.J. 2185, 2211 (1996) (noting that while "according equal weight . . . to individual votes is a way of respecting persons," it does not follow that "either fairness or equal respect for persons requires majority decision").
332. For a general description of several "positional" methods of voting taking relative intensities into account, see MUELLER, supra note 65, at 113-22; RIKER, supra note 53, at 81- 94. Different methods measure relative intensities differently, however, and self-reporting methods can generate biases and strategic manipulation. See Pildes & Anderson, supra note 32, at 2134.
333. For a general description of several "positional" methods of voting taking relative intensities into account, see MUELLER, supra note 65, at 113-22; RIKER, supra note 53, at 81-94. Different methods measure relative intensities differently, however, and self-reporting methods can generate biases and strategic manipulation. See Pildes & Anderson, supra note 32, at 2134.
334. For a general description of several "positional" methods of voting taking relative intensities into account, see MUELLER, supra note 65, at 113-22; RIKER, supra note 53, at 81- 94. Different methods measure relative intensities differently, however, and self-reporting methods can generate biases and strategic manipulation. See Pildes & Anderson, supra note 32, at 2134.
335. We cannot be sure that the aggregate intensities of Case Search's posttrade majority exceed the aggregate intensities of the posttrade minority. Suppose the pretrade lineup was Wapner plus A, B, C, & D for the criminal defendant, and Judy plus X, Y, & Z for the State. The posttrade line-up is A, B, C, & D for the defendant and Wapner, Judy, plus X, Y, & Z for the State (who now wins). It is conceivable that A, B, C, & D are very certain the posttrade Court is making a big mistake, and X, Y, & Z are both unsure and ambivalent. Thus, even after the trade, the aggregate intensities supporting the losing criminal defendant might still outweigh the aggregate intensities supporting the winning State.
336. Consider again the previous example in supra note 196. In a rich market, one or more of A, B, C, & D would have been motivated and likely able to strike a deal with one or more of X, Y, & Z to trade this case back to the criminal defendant in exchange for a reciprocal trade, such that the result in this case would in fact mirror the hypothesized relative intensities among the Justices. Some political science literature suggests that, under certain circumstances, vote trading to promote preference satisfaction can reduce overall group utility. See, e.g., William H. Riker & Steven J. Brams, The Paradox of Vote Trading, 67 AM. POL. SCI. REV. 1235 (1973). See generally Thomas Stratmann, Logrolling, in PERSPECTIVES ON PUBLIC CHOICE THEORY 322 (Dennis Mueller ed., 1997); id. at 322 ("Today, no consensus exists in the normative public choice literature as to whether logrolling is on net welfare enhancing or welfare reducing . . . ."); Hasen, supra note 157, at 18-22. One important aspect of this analysis - whether mutual trading gains perceived by legislators impose welfare-reducing externalities on third parties -is inapplicable to the judicial context, where the currency of trade is legal principle rather than preference satisfaction and thus the same externality does not arise. Still, this literature at least raises the question (beyond my capacity to answer here) whether judicial vote trading might still lead some cases to be decided suboptimally, as measured by the sincere intensities of the Justices. Of course, the prevailing regime of equally weighted voting also will occasionally produce this result. It is difficult to imagine how one could measure whether a trading regime would, on balance, produce more accurate decisions taking intensity into account. Even if this objection provides a persuasive contemporary policy argument against vote trading, it cannot account for the longstanding intuitive antitrading norm. Surely many judges and scholars denouncing vote trading have been unaware of this relatively recent, and still somewhat contested, finding of political scientists. Rather, their intuitive objection necessarily rests on a more accessible foundation.
337. Consider again the previous example in supra note 196. In a rich market, one or more of A, B, C, & D would have been motivated and likely able to strike a deal with one or more of X, Y, & Z to trade this case back to the criminal defendant in exchange for a reciprocal trade, such that the result in this case would in fact mirror the hypothesized relative intensities among the Justices. Some political science literature suggests that, under certain circumstances, vote trading to promote preference satisfaction can reduce overall group utility. See, e.g., William H. Riker & Steven J. Brams, The Paradox of Vote Trading, 67 AM. POL. SCI. REV. 1235 (1973). See generally Thomas Stratmann, Logrolling, in PERSPECTIVES ON PUBLIC CHOICE THEORY 322 (Dennis Mueller ed., 1997); id. at 322 ("Today, no consensus exists in the normative public choice literature as to whether logrolling is on net welfare enhancing or welfare reducing . . . ."); Hasen, supra note 157, at 18-22. One important aspect of this analysis - whether mutual trading gains perceived by legislators impose welfare-reducing externalities on third parties -is inapplicable to the judicial context, where the currency of trade is legal principle rather than preference satisfaction and thus the same externality does not arise. Still, this literature at least raises the question (beyond my capacity to answer here) whether judicial vote trading might still lead some cases to be decided suboptimally, as measured by the sincere intensities of the Justices. Of course, the prevailing regime of equally weighted voting also will occasionally produce this result. It is difficult to imagine how one could measure whether a trading regime would, on balance, produce more accurate decisions taking intensity into account. Even if this objection provides a persuasive contemporary policy argument against vote trading, it cannot account for the longstanding intuitive antitrading norm. Surely many judges and scholars denouncing vote trading have been unaware of this relatively recent, and still somewhat contested, finding of political scientists. Rather, their intuitive objection necessarily rests on a more accessible foundation.
338. Consider again the previous example in supra note 196. In a rich market, one or more of A, B, C, & D would have been motivated and likely able to strike a deal with one or more of X, Y, & Z to trade this case back to the criminal defendant in exchange for a reciprocal trade, such that the result in this case would in fact mirror the hypothesized relative intensities among the Justices. Some political science literature suggests that, under certain circumstances, vote trading to promote preference satisfaction can reduce overall group utility. See, e.g., William H. Riker & Steven J. Brams, The Paradox of Vote Trading, 67 AM. POL. SCI. REV. 1235 (1973). See generally Thomas Stratmann, Logrolling, in PERSPECTIVES ON PUBLIC CHOICE THEORY 322 (Dennis Mueller ed., 1997); id. at 322 ("Today, no consensus exists in the normative public choice literature as to whether logrolling is on net welfare
339. See supra note 153 and accompanying text.
340. See supra notes 40-43 and accompanying text.
341. Of course, a cordial working environment might be desirable for purely social reasons. But I do not consider here the propriety of strategic behavior designed to maintain an amicable environment for its own sake, any more than to secure other personal agendas for their own sakes. See supra note 46.
342. See, e.g., Wald, supra note 101, at 524 ("Colleagues who are perennially annoyed and irritated with one another have difficulty listening respectfully and openmindedly to each other; they have little incentive to seek a middle ground."); id. at 527 (concluding that judges "can do much to keep personal friction to a minimum," including avoiding unnecessary dissents); cf. Shapiro, supra note 47, at 743 n.54 ("[I]t is well understood that the interests of courtesy (and reciprocity) call for a certain amount of deference.").
343. See, e.g., Wald, supra note 101, at 524 ("Colleagues who are perennially annoyed and irritated with one another have difficulty listening respectfully and openmindedly to each other; they have little incentive to seek a middle ground."); id. at 527 (concluding that judges "can do much to keep personal friction to a minimum," including avoiding unnecessary dissents); cf. Shapiro, supra note 47, at 743 n.54 ("[I]t is well understood that the interests of courtesy (and reciprocity) call for a certain amount of deference.").
344. See, e.g., Shapiro, supra note 47.
345. Both means of securing victories in the Instant Case, persuasion and trade negotiation, take time and energy. When successful, however, persuasion leads to a complete victory and negotiation leads to victory at the cost of a sacrificed case elsewhere.
346. Cf. POSNER, supra note 4, at 125-26 (referring to vote trading as "power-maximizing," though in the course of making a different claim). This point highlights the ways in which various teleological arguments interconnect. If the Justices viewed intensity-weighting as a proper aggregation mechanism for promoting accuracy, see supra section III.B.3, then they would not likely view vote trading as "power-maximizing" in any derogatory sense.
347. The more the range of views represented is skewed as compared to the universe of possible positions, the less "moderate" the middle will be appear. Many would maintain that both the Warren and Rehnquist Courts were skewed in this sense, although in different directions.
348. See supra note 65 and accompanying text.
349. See supra notes 66-68 & 72 and accompanying text (discussing form-driven shifts); supra notes 90-91 and accompanying text (discussing content-driven shifts).
350. Recall that no single Justice can, by insincerely positioning himself further out on a wing, move the median of the Court that controls the disposition and (usually) the precedent. See supra note 88. In this respect collegial adjudication is unlike, say, collegial judging of an Olympic diving event where the collective output is determined by a numerical mean, and therefore an outlier judge can unilaterally shift the mean by registering an extremely high or extremely low score (which is why the highest and lowest scores are conventionally disregarded in calculating the mean). Rather, a single Justice can shift the Court's collective out-put only through at least some degree of convergence with other Justice's positions. No single Justice can take the Court in a direction lacking substantial support.
351. See supra note 3 and accompanying text.
352. See supra note 68.
353. Without trading, a median faction would be willing to move toward the margin only if the perceived error of the suboptimal rule in the Instant Case were small, in comparison to the institutional gains or the substantive gain from forestalling an ever worse merits outcome. But with trading, a median faction can be encouraged to move toward the margin even if the perceived error of the suboptimal rule in the Instant Case is large - so long as in return the faction acquires a concession in the Other Case that cures an even larger perceived error.
354. See supra note 178 (describing a median-promoting vote trade). In contrast, it would be quite difficult for a single strategic-minded Justice to generate support for a truly idiosyncratic outcome. She would have to negotiate a trade with at least our of her colleagues and offer each a concession of substantial value in order to convince them to support her position.
355. See Stearns, supra note 163, at 1349-50 (arguing that because opinion publication subjects judges to potential criticism for failure to abide by their own stated principles, "written opinions discourage . . . vote trades").
356. As explained earlier, such oscillations would not be readily predictable even by savvy Court watchers, given the difficulty of discerning each Justice's MPE assessment over the range of cases available for trade. See supra note 130 and accompanying text.
357. More technically, the relational judgment criterion of consistency should influence the MPE assessment of any Justice considering whether to trade away her vote in the Instant Case The greater the break with the pattern of existing precedent, the greater the MPE of the proposed rule and the more reluctant she should be to accept the terms of the trade. Beyond the norm of consistency, fear of being criticized for flip-flopping might dissuade Justices from engaging in such strategic behavior. See Scalia, supra note 75, at 42 (stating that Justices "cannot, without risk of public embarrassment, meander back and forth - today providing the fifth vote for a disposition that rests upon one theory of law, and tomorrow providing the fifth vote for a disposition that presumes the opposite"). Of course, if vote trading became an accepted convention, then the likelihood and bite of such criticism would dissipate.
358. See supra section III.B.3.
359. See supra note 190. Individual judges have often asserted disproportionate influence over certain legal issues on their courts. For examples, see Stephen M. Bainbridge, Insider Trading Regulation: The Path Dependent Choice Between Property Rights and Securities Fraud, 52 SMU L. REV. (forthcoming 1999) (noting the "widely shared assumption that Justice Powell received substantial deference from his colleagues" with respect to the development of securities law); Margaret V. Sachs, Judge Friendly and the Law of Securities Regulation: The Creation of a Judicial Reputation, 50 SMU L. REV. 777 (1997) (exploring Judge Friendly's disproportionate influence over his appellate court and the nation with respect to the development of securities law).
360. See supra note 190. Individual judges have often asserted disproportionate influence over certain legal issues on their courts. For examples, see Stephen M. Bainbridge, Insider Trading Regulation: The Path Dependent Choice Between Property Rights and Securities Fraud, 52 SMU L. REV. (forthcoming 1999) (noting the "widely shared assumption that Justice Powell received substantial deference from his colleagues" with respect to the development of securities law); Margaret V. Sachs, Judge Friendly and the Law of Securities Regulation: The Creation of a Judicial Reputation, 50 SMU L. REV. 777 (1997) (exploring Judge Friendly's disproportionate influence over his appellate court and the nation with respect to the development of securities law).
361. William J. Brennan, Jr., In Defense of Dissents, 37 HASTINGS L.J. 427, 432 (1986).
362. See Howard Gillman & Cornell W. Clayton, Beyond Judicial Attitudes: Institutional Approaches to Supreme Court Decision-Making, in SUPREME COURT DECISION-MAKING supra note 36, at 11-7 (explaining recent efforts to supplement the "attitudmal model with more institutional approaches). My inquiry about strategic voting has taken as given many existing formal and informal rules, e.g., deliberation, majoritarian decisionmaking, no individual abstention vote, no collective impasse default rule, and the influence of coalition size on precedential weight. Modifying these and similar rules would generate somewhat different judicial behavior and perhaps different normative questions.
363. Gillman, supra note 36, at 75-76.
364. See supra note 11 and accompanying text.
365. Cf. Gillman, supra note 36, at 71-72 (when discussing sophisticated rather than peerstrategic behavior, noting that perhaps "the course of action that might best maximize the interests of the Justices in the long run would be to act in a way that appeared principled rather than strategic").