Trading votes for reasoning: Covering in judicial opinions

Southern California Law Review

Volumn 81, Issue 4, 2008, Pages 735-779

  Choi, Stephen J ^a   Gulati, G Mitu ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 48949085567     PISSN: 00383910     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (124)

1. See Pauline T. Kim, Lower Court Discretion, 82 N.Y.U. L. REV. 383, 384 (2007).
2. See, e.g., JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL 65 (1993) (articulating the attitudinal model that posits that Supreme Court decisions reflect the ideological preferences of the justices).
3. See Kim, supra note 1, at 384. See also Emerson H. Tiller & Frank B. Cross, What Is Legal Doctrine?, 100 NW. U. L. REV. 517, 518 (2006) (urging that more attention to legal doctrine be paid by social scientists studying the courts).
4. See Barry Friedman, Taking Law Seriously, 4 PERSP. ON POL. 261, 261-62 (2006); Kim, supra note 1, at 384. Frank Cross notes that political scientists have ridiculed the theory that judges decide according to the law as "meaningless, . . . acerebral, irrational, or no more a science than creative writing, necromancy, or finger painting."
5. FRANK B. CROSS, DECISION MAKING IN THE U.S. COURTS OF APPEALS 11 (2007) (internal quotes omitted).
6. See RICHARD A. POSNER, HOW JUDGES THINK 8-9 (2008).
7. Cf. Tracey E. George, Developing a Positive Theory of Decisionmaking on U.S. Courts of Appeals, 58 OHIO ST. L.J. 1635, 1643-45 (1998) (contrasting the legal and political science models of studying judicial behavior).
8. See Kim, supra note 1. See also Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REV. 1175, 1177 (1989) ("[W]hen the Supreme Court . . . decides a case, not merely the outcome of that decision, but the mode of analysis that it applies will thereafter be followed by the lower courts . . . [It] can either establish general rules or leave ample discretion for the future."). The "it will not write" quote is one that we have heard informally from many judges; it seems to capture their notion of being constrained by precedent even when their intuitions (or policy preferences) tell them to vote differently.
9. See FRANK M. COFFIN, ON APPEAL: COURTS, LAWYERING, AND JUDGING 57, 161 (1994);
10. Richard A. Posner, Judges' Writing Styles (and Do They Matter?), 62 U. CHI. L. REV. 1421, 1446-48 (1995).
11. E.g., DAVID E. KLEIN, MAKING LAW IN THE UNITED STATES COURTS OF APPEALS 7-8 (2002);
12. Stefanie Lindquist & Frank Cross, Empirically Testing Dworkin's Chain Novel Theory: Studying the Path of Precedent, 80 N.Y.U. L. REV. 1156, 1158 (2005);
13. Donald R. Songer & Susan Haire, Integrating Alternative Approaches to the Study of Judicial Voting: Obscentiy Cases in the U.S. Courts of Appeals, 36 AM. J. POL. Sci. 963, 964-65 (1992);
14. Nancy C. Staudt, Modeling Standing, 79 N.Y.U. L. REV. 612, 669 (2004).
15. E.g., James J. Brudney & Corey Ditslear, Canons of Construction and the Elusive Quest for Neutral Reasoning, 58 VAND. L. REV. 1, 15-29 (2005);
16. James J. Brudney & Corey Ditslear, The Decline and Fall of Legislative History? Patterns of Supreme Court Reliance in the Burger and Rehnquist Eras, 89 JUDICATURE 220, 221-22 (2006);
17. Gregory C. Sisk, Michael Heise & Andrew P. Moriss, Charting the Influences on the Judicial Mind: An Empirical Study of Judicial Reasoning, 73 N.Y.U. L. REV. 1377, 1438 (1998).
18. See Mita Bhattacharya & Russell Smyth, The Determinants of Judicial Prestige and Influence: Some Empirical Evidence from the High Court of Australia, 30 J. LEGAL STUD. 223, 249-50 (2001);
19. Stephen J. Choi & G. Mitu Gulati, Bias in Judicial Citations: A Window into the Behavior of Judges, 37 J. LEGAL STUD. (forthcoming 2008) [hereinafter Choi & Gulati, Citation Bias];
20. Michael Abramowicz & Emerson H. Tiller, Judicial Citation to Legislative History: Contextual Theory and Empirical Analysis 20 (July 29, 2005) (unpublished manuscript, on file with authors).
21. But see William M. Landes, Lawrence Lessig & Michael E. Solimine, Judicial Influence: A Citation Analysis of Federal Courts of Appeal Judges, 27 J. LEGAL STUD. 271, 325 (1998) (finding no significant effect of federal appeals court judges' political party affiliations on their opinions' citations in the context of a multivariate analysis of citation frequency).
22. Choi & Gulati, Citation Bias, supra note 9, at 3.
23. A version of this argument is that opinion writing is largely delegated to law clerks, who simply cite whatever cases they find first.
24. One explanation for judges' attempts to follow precedent has to do with their audiences. For judges - especially those who care about their own precedents being followed by other judges - a key portion of their audience is made up of other judges. Judges likely care about their legacies in terms of the law they create, and that in turn likely generates a reciprocal norm among judges to generally follow precedent. For a judge to write opinions without justifying them in terms of precedent would likely bring the displeasure of members of this audience, an audience judges need to please if they wish their precedents to be respected. See LAWRENCE BAUM, JUDGES AND THEIR AUDIENCES: A PERSPECTIVE ON JUDICIAL BEHAVIOR 160 (2006).
25. Cf. Alexander Volokh, Choosing Interpretive Methods: A Positive Theory of Judges and Everyone Else, 83 N.Y.U. L. REV. (forthcoming 2008) (explaining why judges might feel constrained to justify their decisions as being consistent with existing law, even while attempting to push their private policy preferences).
26. E.g., Ethan Bueno de Mesquita & Matthew Stephenson, Informative Precedent and Intrajudicial Communication, 96 AM. POL. SCI. REV. 755, 755 (2002) (explaining that judicial adherences to precedent is explained by judges' concern regarding external effects; that is, judges care about precedent so as to be able to influence policy).
27. See C.K. ROWLAND & ROBERT A. CARP, POLITICS AND JUDGMENT IN FEDERAL DISTRICT COURTS 56 (1996);
28. James J. Brudney, Sara Schiavoni & Deborah J. Merritt, Judicial Hostility Toward Labor Unions? Applying the Social Background Model to a Celebrated Concern, 60 OHIO STATE L.J. 1675, 1717-20 (1999);
29. 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, 2175 (1998);
30. Melinda Gann Hall & Paul Brace, Toward an Integrated Model of Judicial Voting Behavior, 20 AM. POL. Q. 147, 158-63 (1992);
31. Donald R. Songer & Sue Davis, The Impact of Party and Region on Voting Decisions in the United States Courts of Appeals, 1955-1986, 43 W. POL. Q. 317, 330 (1990); Songer & Haire, supra note 7, at 964.
32. See Lee Epstein & Jack Knight, Toward a Strategic Revolution in Judicial Politics: A Look Back, A Look Ahead, 53 POL. RES. Q. 625, 638-39 (2000);
33. Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 VA. L. REV. 1717, 1767 (1997).
34. See CROSS, supra note 4, at 148-77; POSNER, supra note 5, at 25 (describing the panel studies); CASS R. SUNSTEIN ET AL., ARE JUDGES POLITICAL? AN EMPIRICAL ANALYSIS OF THE FEDERAL JUDICIARY 17-45 (2006);
35. Thomas J. Miles & Cass R. Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron, 73 U. CHI. L. REV. 823, 851-52 (2006); Revesz, supra note 15, at 1765-66. Panel effects have also been examined with respect to other factors, such as gender, for example, and scholars have asked whether the presence of a female judge on a panel alters the probability of the panel finding in favor of the plaintiff in a discrimination lawsuit.
36. See Jennifer L. Peresie, Female Judges Matter: Gender and Collegial Decisionmaking in the Federal Appellate Courts, 114 YALE L.J. 1759, 1779-83 (2005);
37. Christina L. Boyd, Lee Epstein & Andrew D. Martin, Untangling the Causal Effects of Sex on Judging 23 (Apr. 24, 2007) (unpublished manuscript, available at http://adm.wustl.edu/media/working/genderjudging.pdf).
38. See Cross & Tiller, supra note 14, at 2172. Cross and Tiller's sample is drawn from cases decided from 1991 to 1995 that cite Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Id. at 2168.
39. Revesz examines the influence of panel composition on how judges voted to decide cases involving challenges to decisions by the Environmental Protection Agency from 1970 to 1994. Revesz, supra note 15, at 1719 ("[I]n fact, the party affiliation of the other judges on the panel has a greater bearing on a judge's vote than his or her own affiliation.").
40. See Cass R. Sunstein, David Schkade & Lisa Michelle Ellman, Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, 90 VA. L. REV. 301, 305 (2004) [hereinafter Sunstein et al., Ideological Voting].
41. See id. at 316-29 (reporting that "Democratic appointees, sitting with two Democratic appointees, are about twice as likely to vote in the stereotypically liberal fashion as are Republican appointees, sitting with two Republican appointees").
42. See id. at 304-05, 318-27.
43. While Revesz does not address the bargaining hypothesis with respect to judges on a panel, he mentions at least two related hypotheses. First, he hypothesizes that judges might moderate their votes out of fear of being overruled by a higher panel (which can be conceptualized as a bargain among the judges at different levels) and second, he hypothesizes that judges might moderate their votes so as to avoid the cost of writing a time-consuming dissent. See Revesz, supra note 15, at 1733-37.
44. See Cross & Tiller, supra note 14, at 2172; Sunstein et al., Ideological Voting, supra note 19. Sunstein's work on panel effects builds on his prior work on the importance of dissenting voices in moderating group behavior. See CASS R. SUNSTEIN, WHY SOCIETIES NEED DISSENT 166-89 (2003). Sunstein and his coauthors suggest that group polarization results when group members who think alike reinforce each others' ideas and give each other additional confidence. See Sunstein et al., Ideological Voting, supra note 19, at 341-43.
45. A recent article surveying the panel effects research explains: Although extremely difficult to measure, the suspicion is that the content of written judicial opinions may be affected by ideological amplification as well. Along those lines, Emerson Tiller and Frank Cross have suggested that the presence of a non-uniform viewpoint can significantly affect the terms of an opinion, even if that viewpoint is not expressed in the form of a formal dissent. Part of the explanation for that may be that the writing judge responds to the threat of a dissent and consciously moderates the opinion from a more extreme form in order to achieve unanimity. Yet even more plausible is that no conscious moderation occurs; instead, the opinion is less extreme because the presence of ideological diversity naturally moderates the decisionmaking of the drafter. In either case, the end result is that ideological amplification may impact the performance of a panel's dispute resolution function (by affecting the direction in which a dispute is decided) as well as its case law production function (by affecting the terms of the opinion expressing that decision). Samuel P. Jordan, Early Panel Announcement, Settlement and Adjudication, 2007 BYU L. REV. 55, 93 (2007) (citing Cross & Tiller, supra note 14, at 2156-57 and Sunstein et al., Ideological Voting, supra note 19, at 307) (suggesting that the reasoning patterns would be moderated on mixed panels, just as voting patterns).
46. See CROSS, supra note 4, at 156-57 (discussing the question of whether judges on multimember panels trade votes). Note, though, that while no one suggests that explicit vote trading occurs, there is recognition in the literature that implicit bargaining occurs. See LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE 106 (1988);
47. Pamela C. Corley, Bargaining and Accomodation of the United States Supreme Court: Insight From Justice Blackmun, 90 JUDICATURE 157, 157 (2007).
48. See Stephen J. Choi & G. Mini Gulati, Ranking Judges According to Citation Bias (As a Means to Reduce Bias), 82 NOTRE DAME L. REV. 1279, 1282 (2007).
49. The term "covering" is taken from the work of sociologist Erving Goffman, who used it to describe everyday behavior where individuals often "cover" their sincere identities so as to achieve goals. ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY 102-04 (1968).
50. The term has received attention in legal scholarship in recent years because of its use by scholars writing in the area of identity politics and performance, who are building on Goffman's work. E.g., KENJI YOSHINO, COVERING: THE HIDDEN ASSAULT ON OUR CIVIL RIGHTS 18 (2006).
51. Recent articles, some using network analysis, have used citation data to study patterns in the growth of precedent. E.g., James H. Fowler et al., Network Analysis and the Law: Measuring the Legal Importance of Precedents at the U.S. Supreme Court, 15 POL. ANALYSIS 324, 325-26 (2007);
52. Frank B. Cross, Thomas A. Smith & Antonio Tomarchio, Determinants of Cohesion in the Supreme Court's Network of Precedents 2 (San Diego Legal Studies, Working Paper No. 07-67, 2006), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=924110.
53. See David J. Walsh, On the Meaning and Pattern of Legal Citations: Evidence from State Wrongful Discharge Precedent Cases, 31 LAW & SOC'Y REV. 337, 344 (1997).
54. See also Shannon Ishiyama Smithey, A Tool, Not a Master: The Use of Foreign Case Law in Canada and South Africa, 34 COMP. POL. STUD. 1188 (2001) (examining outside citations - to foreign law materials - that judges rely on to cut information costs, decrease uncertainty, and provide justification).
55. Most studies of judicial citations examine the aggregate numbers of citations a judge receives and do not focus on the citation patterns within individual opinions. Scholars measuring judicial influence, for example, have used the aggregate outside circuit citations received as a measure of the influence of federal circuit court judges. See Landes et al., supra note 9, at 325. Others have counted the invocations of a specific judge's name in judicial opinions as a measure of that judge's prestige. See David Klein & Darby Morrisroe, The Prestige and Influence of Individual Judges on the U.S. Courts of Appeals, 28 J. LEGAL STUD. 371, 376 (1999).
56. See, e.g., SUNSTEIN ET AL., supra note 16; Cross & Tiller, supra note 14; Revesz, supra note 15.
57. See George, supra note 5, at 1639-40, 1649-55.
58. Id.
59. See LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE 9-10 (1998).
60. E.g., Tracey E. George & Lee Epstein, On the Nature of Supreme Court Decision Making, 86 AM. POL. SCI. REV. 323, 325 (1992).
61. See generally JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISTED 74-124 (2002) (discussing foundations of the attitudinal model). See also Choi & Gulati, Citation Bias, supra note 9, at 6 (describing a constrained attitutidinalist model); Kim, supra note 1, at 391-408 (describing a number of models that have judges constrained by institutional, structural, and resource related factors);
62. Richard A. Posner, Foreword: A Political Court, 119 HARV. L. REV. 31, 52 (2005) (describing justices as feeling constrained by the law in the majority of cases before them).
63. A number of studies report that judges appear to see themselves as constrained by precedent. See, e.g., George & Epstein, supra note 34, at 323; Lori Hausegger & Lawrence Baum, Inviting Congressional Action: A Study of Supreme Court Motivations in Statutory Interpretation, 43 AM. J. POL. SCI. 162 (1999);
64. Stefanie A. Lindquist & David E. Klein, The Influence of Jurisprudential Considerations on Supreme Court Decisionmaking: A Study of Conflict Cases, 40 LAW & SOC'Y REV. 135 (2006).
65. COFFIN, supra note 6, at 133-34 (describing how the judges take a tentative vote in conference, after oral arguments); Richard Posner, Diary, SLATE, Jan. 15, 2002, http://www.slate.com/id/ 2060621/entry/2060742.
66. COFFIN, supra note 6, at 171-229 (describing the structure of and effort involved in opinion writing).
67. See Jeffrey R. Lax & Charles M. Cameron, Bargaining and Opinion Assignment on the U.S. Supreme Court, 23 J.L. ECON. & ORG. 276, 277 (2007).
68. On the "professional" versus "politician" dichotomy, see generally Stephen J. Choi, G Mitu. Gulati & Eric A. Posner, Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather Than Appointed Judiciary (Aug. 22, 2007) (unpublished manuscript, available at http://ssrn.com/abstract_id=1008989).
69. See CROSS, supra note 4, at 160-61. On the rare occasion, however, when hindsight shows a judge's dissent to have possessed an unusual strength of principle (or, cynically, foresight about societal developments), the dissent, largely because it is a dissent, can far outstrip the majority opinion in terms of influence and authority. Included in this small subset of canonical dissents are Justice Harlan's dissent in Plessy v. Ferguson, 163 U.S. 537, 552-64 (1896) and Justice Holmes's dissent in Lochner v. New York, 198 U.S. 45, 74-76 (1905).
70. See Anita S. Krishnakumar, On the Evolution of the Canonical Dissent, 52 RUTGERS L. REV. 781, 788-90, 800-01 (2000). At the circuit court level, however, the likelihood of a dissent achieving such canonical status is probably smaller.
71. See KLEIN, supra note 7, at 83 (stating that opinions with dissents generally have weaker precedential value).
72. Cross acknowledges this possibility, explaining that "[t]he majority might be willing to make some compromises, at least in opinion language, to avoid provoking the minority into one of the rare dissents." CROSS, supra note 4, at 160. See also Christopher A. Bracey, Louis Brandeis and the Race Question, 52 ALA. L. REV. 859, 867 (2001) ("In addition to writing powerful dissenting opinions, [Justice] Brandeis frequently used the threat of dissent to temper an otherwise unacceptable majority opinion."); Corley, supra note 25, at 157 (suggesting that the threat of a concurrence can also be significant sanction).
73. E.g., THOMAS H. HAMMOND, CHRIS W. BONNEAU & REGINALD S. SHEEHAN, STRATEGIC BEHAVIOR AND POLICY CHOICE ON THE U.S. SUPREME COURT 139-214 (2005);
74. FORREST MALTZMAN, JAMES F. SPRIGGS, II & PAUL J. WAHLBECK, CRAFTING LAW ON THE SUPREME COURT: THE COLLEGIAL GAME 29-93 (2000).
75. On the importance of chief judge control of opinion assignment in the state high courts, see generally Laura Langer et al., Recruitment of Chief Justices on State Supreme Courts: A Choice Between Institutional and Personal Goals, 65 J. POL. 656 (2003).
76. The observation that opinion assignment can be a key strategic element goes back at least to Walter Murphy's classic work. See WALTER F. MURPHY, ELEMENTS OF JUDICIAL STRATEGY (1964).
77. The foregoing is in addition to the literature on strategic voting itself, where judges trade votes or modify their votes in anticipation of the behavior of other actors. See, e.g., Evan H. Caminker, Sincere and Strategic Voting Norms on Multimember Courts, 97 MICH. L. REV. 2297, 2298-99 (1999).
78. E.g., BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN: INSIDE THE SUPREME COURT 65 (1979) (reporting that Chief Justice Burger would often not assign the opinions in key cases involving civil rights, criminal law, and free speech to his ideological enemies (Marshall, Brennan, and Douglas) and assigned them instead the lame opinions in areas such as tax).
79. See also MALTZMAN ET AL., supra note 44, at 29-56 (describing the strategic element in opinion assignment). For earlier studies looking at the Warren Court, see David W. Rohde, Policy Goals, Strategic Choice and Majority Opinion Assignments in the U.S. Supreme Court, 16 MIDWEST J. POL. SCI. 652, 677-78 (1972) (looking at assignment patterns in civil rights cases).
80. But see Gregory James Rathjen, Policy Goals, Strategic Choice, and Majority Opinion Assignments in the U.S. Supreme Court: A Replication, 18 AM. J. POL. SCI. 713, 719 (1974) (calling into question Rohde's primary hypothesis based on examination of economic cases decided by the Warren Court). Recent research has moved beyond the strategic moves of the Chief Justice to additionally examining other Justices such as the Senior Justice in the minority group. See Tobias T. Gibson & Matthew M. Schneider, Repositioning for Power: The Third Position of Influence on the U.S. Supreme Court (Dec. 19, 2005) (unpublished manuscript, on file with authors).
81. See, e.g., WOODWARD & ARMSTRONG, supra note 45, at 64-65.
82. See Saul Brenner & Harold J. Spaeth, Majority Opinion Assignment and the Maintenance of the Original Coalition on the Warren Court, 32 AM. J. POL. Sci. 72, 73-80 (1988);
83. David J. Danelski, The Influence of the Chief Justice in the Decisional Process of the Supreme Court, in THE FEDERAL JUDICIAL SYSTEM: READINGS IN PROCESS AND BEHAVIOR 506 (Sheldon Goldman & Austin Sarat eds., 1978);
84. Forrest Maltzman & Paul J. Wahlbeck, Opinion Assignment on the Rehnquist Court, 89 JUDICATURE 121, 126 (2005);
85. Paul J. Wahlbeck, Strategy and Constraints on Supreme Court Opinion Assignment, 154 U. PA. L. REV. 1729, 1754-55 (2006) (stating that in order to preserve a fragile coalition, opinions might be assigned to Justices in the ideological center rather than at the extreme). Even here, as Toobin explains, using Justice Stevens's choice of Justice Breyer to write the opinion in Stenberg v. Carhart, 530 U.S. 914 (2000), rather than Justice O'Connor, there are complex strategic choices to be made. Justice O'Connor might have been the shakiest Justice in the coalition, but Justice Stevens assigned the opinion to Justice Breyer because, as Toobin explains it, Justice Breyer had the political skills to keep his senior colleagues on board, whereas with Justice O'Connor, there was the danger that she would find that the opinion "wouldn't write."
86. JEFFREY TOOBIN, THE NINE: INSIDE THE SECRET WORLD OF THE SUPREME COURT 132-34 (2007).
87. See Brenner & Spaeth, supra note 47, at 74 ("[T]he opinion assignment can be perceived as a tacit bargain in which the assigner awards the opinion to the assignee on the understanding that the assignee will remain in the original coalition."); David W. Rohde, Policy Goals, Strategic Choice, and Majority Opinion Assignments in the U.S. Supreme Court, 16 AM. J. POL. SCI. 652, 654 (1972) (referring to the majority opinion as a "side payment" to a Justice "to induce him to . . . remain in a majority opinion").
88. See Timothy Johnson et al., Passing and Strategic Voting on the U.S. Supreme Court, 39 LAW & SOC'Y REV. 349, 351 (2005). See also MURPHY, supra note 44, at 84-85 (discussing the possibility of phony votes even prior to the Burger Court);
89. Dahlia Lithwick, Talk About Your Overrated Job: Why Would Anyone Want to Be Chief Justice?, SLATE, Nov. 16, 2004, http://slate.com/id/ 2109807 (describing the foregoing).
90. These assumptions about costs form the basis of the bargaining model in the recent article by Jeffrey R. Lax & Charles Cameron. See Lax & Cameron, supra note 39, at 279.
91. For a description of the dataset, see Stephen J. Choi & G. Mitu Gulati, Choosing the Next Supreme Court Justice: An Empirical Ranking of Judge Performance, 78 S. CAL. L. REV. 23 (2004).
92. To ensure a full two years of opinion data for each judge, we also excluded judges appointed after January 1, 1998.
93. Canonical cases present the additional complication that the analytical propositions that they stand for may become so well accepted that the authoring judge is not cited any more for it.
94. Bhattacharya & Smyth, supra note 9, at 236-40; William M. Landes & Richard A. Posner, Legal Precedent: A Theoretical and Empirical Analysis, 19 J.L. & ECON. 249, 255, 262-70 (1976);
95. Thomas A. Smith, The Web of Law 12-27 (San Diego Legal Studies, Working Paper No. 06-11, 2005), available at http://papers.ssrn.com/sol3/ papers.cfm?abstract_id=642863.
96. Together with several research assistants, we spent over two years collecting the data for this Article.
97. Rorie Spill Solberg, Jolly A. Emrey & Susan B. Haire, Inter-Court Dynamics and the Development of Legal Policy: Citation Patterns in the Decisions of the U.S. Courts of Appeals, 34 POL'Y STUD. J. 277, 289 (2006).
98. See generally KLEIN, supra note 7. Another technique to separate out the "strong" citations from "string" or otherwise weak citations is to count only those citations accompanied by an explicit discussion of the case or a quote from it. Solberg et al., supra note 56, at 283; Walsh, supra note 28, at 342. Each of these techniques, though, is likely to be both under and overinclusive in terms of sorting strong from weak citations.
99. See generally SUNSTEIN ET AL., supra note 16; Cross & Tiller, supra note 14; Revesz, supra note 15.
100. The following is an example of our coding: Circuit Judge Boudin wrote the majority opinion for Flynn v. City of Boston, 140 F.3d 42 (1st Cir. 1998). We looked through the opinion, coding for citations to any of our set of ninety-eight active federal circuit court judges. In the opinion, Judge Boudin cited one judge outside of the First Circuit from our set of ninety-eight judges: Judge Luttig of the Fourth Circuit. See id. at 47 (citing Dimeglio v. Haines, 45 F.3d 790, 805-06 (4th Cir. 1995)). Both Judge Boudin and Judge Luttig were appointed by a Republican president. We therefore treated Judge Boudin's citation of Judge Luttig as a same-party-outside-circuit citation. We also limited our analysis to published opinions. As Ashenfelter, Eisenberg, and Schwab discuss, omitting unpublished opinions excludes a substantial universe of judge-authored opinions.
101. See Orley Ashenfelter, Theodore Eisenberg & Stewart J. Schwab, Politics and the Judiciary: The Influence of Judicial Background on Case Outcomes, 24 J. LEGAL STUD. 257, 263-64 (1995). On the other hand, if judges do act with an ideological bias, we expect this bias to appear where ideology matters the most: published opinions that affect the development of precedent. Unpublished opinions, in contrast, provide judges with little ability to affect the development of the law. See id.
102. See Choi & Gulati, Citation Bias, supra note 9, at 11-13 (hypothesizing that such a tendency exists).
103. Sunstein et al., Ideological Voting, supra note 19, at 305-06.
104. One complication in comparison to the Sunstein dataset has to do with the inadequate number of cases in the abortion and capital punishment areas in our database. Sunstein and his coauthors found that the patterns of moderated voting in a number of salient areas do not show up in a couple of the most salient areas (abortion and capital punishment), where the suggestion is that private policy preferences are so strong that there is no moderated voting. Id. at 327-28. Maybe what we would find is that trading in these areas is also reduced; however, data constraints do not permit that inquiry here.
105. See Lee Epstein & Jeffrey A. Segal, Measuring Issue Salience, 44 AM. J. POL. SCI. 66 (2000).
106. We searched for "supreme court" in the Westlaw NYT database and focused only on those articles that dealt with the U.S. Supreme Court.
107. More formally, Top Salient is equal to one (1) if the opinion relates to one of the top half subject matter categories in Table 3 (that is, all categories listed above "Tax") and zero (0) otherwise. Bottom Salient is equal to one (1) if the opinion relates to one of the bottom half subject matter categories in Table 3 (that is, all categories listed below "Takings and Property") and zero (0) otherwise.
108. Included among President Reagan's appointments were Judges Posner, Easterbrook, Scalia, Bork, and Winter, all of whom have had a tremendous impact on the evolution of precedent in a wide variety of areas. See Tracey E. George, Court Fixing, 43 ARIZ. L. REV. 9, 49-50 (2001).
109. See Micheal W. Giles, Virginia A. Hettinger & Todd Peppers, Picking Federal Judges: A Note on Policy and Partisan Selection Agendas, 54 POL. RES. Q. 623, 630-32 (2001) (measuring judicial preference based on ideological scores of the president and senators involved in the appointment process). Thanks to Stefanie Lindquist for giving us these scores.
110. On the other hand, the sum of Mixed Panel + Top Salient + Mixed Panel + Top Salient is not significantly different from zero. The level of partisanship for a Mixed Panel in a Top Salient opinion is not appreciably different from the level of partisanship in a Unified Panel.
111. Such a trade need not be explicit. Rather, a particular judge may not wish to antagonize different party judges more than necessary and view moderation in reasoning for some opinions (the Bottom Salient opinions) as giving them more leeway to use more partisanship in other opinions (the Top Salient opinions) while maintaining collegiality with the different party judges.
112. As a robustness check, we added interaction terms for Mixed Panels x GHP and Mixed Panels x Top Salient x GHP to see if more conservative judges would display different citation patterns for mixed panels generally, and mixed panels dealing with cases in Top Salient subject matter areas. Not reported, we found that the coefficients on both of these interaction terms were not significantly different from zero.
113. See supra notes 17-24 and accompanying text (reviewing evidence of vote moderation on the part of judges from judge panels of mixed political persuasion).
114. On the other hand, the sum of All Mixed + Top Salient + All Mixed x Top Salient is not significantly different from zero. The level of partisanship for an All Mixed panel in a Top Salient opinion is not appreciably different from the level of partisanship in a Unified Panel.
115. The sum of Top Salient and All Opposition x Top Salient is not significantly different from zero-indicating no difference between Top Salient and Bottom Salient opinions for All Opposition panels. The coefficient on Top Salient alone is not significantly different from zero, indicating no difference between Top Salient and Bottom Salient opinions for Unified Panels (the base category).
116. See, e.g, Gregory A. Caldeira, On the Reputation of State Supreme Courts, 5 POL. BEHAV. 83 (1983);
117. Rodney L. Mott, Judicial Influence, 30 AM. POL. SCI. REV. 295 (1936).
118. See Landes et al., supra note 9, at 272-73.
119. See Choi & Gulati, Citation Bias, supra note 9, at Part IV. 1.
120. Of course, judges at the margin may shift between the High-Citation and Low-Citation classification of judges under more nuanced, neutral measures of citation counts. Nonetheless, for the majority of nonmarginal judges (such as Judge Posner), the classifications of High-Citation and Low-Citation are unlikely to change even when taking into account flaws in citation counts.
121. As a robustness test, we also included a separate indicator variable for High-Citation Judge to allow us to distinguish between Unified Panels with a High-Citation or Low-Citation judge. The coefficient on the High-Citation Judge indicator variable was not significantly zero and the results remained qualitatively the same as in Table 8.
122. We do not perform a robustness test using judge-fixed effects as the panel composition variables of interest in Table 7 are divided based on whether a judge is a High-Citation or Low-Citation judge, a judge-specific characteristic.
123. On the other hand, the sum of All Mixed-High-Citation Judge + Top Salient + All Mixed-High-Citation Judge x Top Salient is not significantly different from zero. The level of partisanship for High-Citation judges authoring an opinion for an All Mixed panel dealing with a Top Salient subject is not appreciably different from the level of partisanship in a Unified Panel.
124. The sum of Top Salient and All Mixed-Low-Citation x Top Salient is not significantly different from zero. The sum of Top Salient and All Opposition-High-Citation x Top Salient is not significantly different from zero. The sum of Top Salient and All Opposition-Low-Citation x Top Salient is not significantly different from zero. Lastly, Top Salient alone is not significantly different from zero.