THE CHOICES JUSTICES MAKE is essential reading for all of us interested in Supreme Court decision-making. The provenance of this intriguing study is Walter Murphy's ELEMENTS OF JUDICIAL STRATEGY published in 1964. As you may recall, Murphy supported his intuitive contentions that the justices behaved in strategic sorts of ways with quotes from court memoranda and personal papers of the justices. (See Murphy's novel THE VICAR OF CHRIST, Macmillan, 1979 for another use of his data.) Following his lead and guided by the rational choice model, Epstein and Knight gather aggregate data from justices' personal papers to confirm what Murphy had suggested. Members of the nation's high bench behave strategically. The justices' ability to achieve policy goals depends upon their perception of the preferences of other Justices, of the "choices they expect [their colleagues] to make, and of the institutional context in which they act." Law, then, as set by the Supreme Court becomes "the long term product of short-term strategic decision-making."
The authors argue that relying on "votes" or the attitudinal model to understand high court behavior is not wrong but rather is incomplete. More is involved than justices responding to ideological values. Assuming their goal is to instill the law with their policy preferences, the actions justices take toward this goal are strategic actions. To support their several assertions the authors rely on information gleaned from the private papers of Justices Brennan, Marshall and Powell supplemented by previous research on the Court.
The decisional process, from accepting review, conference discussions and tentative votes, opinion assignment and writing, draft opinion circulation, to final filing of the signed opinions is fraught with evidence of strategic interactions between justices. As an example, in CRAIG v. BOREN (429 US 190,1976) Brennan assumes the opinion drafting responsibilities for the Court. He prefers application of the strict scrutiny test regarding a gender classification. However, as a result of conference discussions and tentative votes, he knows that he cannot muster a majority for the more demanding test. If he pushes for his strict scrutiny preference a majority of his colleagues may be driven into the least demanding rational basis test, which for Brennan is unacceptable. His final draft gains the needed votes for the intermediate or heightened scrutiny test after accommodating the concerns of some of his colleagues. Although not gaining his preferred goal, his strategy has prevented the Court from adopting the least demanding test for gender classification. The authors convincingly show that these kinds of strategic choices are quite common.
Can we be sure that justices are nearly always pursuing policy goals when they display strategic behavior? In addition to relying on previous studies regarding the pursuit of policy, the authors screened the conference notes of Brennan and Powell for policy oriented remarks. Nearly half the remarks were indications of preferred policy. For example, Stevens remarked on the HISHON case (gender discrimination in law firm partnerships) during conference that "A partner is not an employee. . . . But clearly prohibited is policy not to hire blacks or women." Also over two-thirds of the memoranda exchanged during opinion circulation were directed toward policy. Their review leads the authors to conclude that "Although justices occasionally pursue other goals and the occasional justice never pursues policy, most justices in most cases seek to establish law as close as possible to their own policy preferences."
To confirm strategic behavior the authors look for "distinct" and "discrete" evidence that justices are engaged in political choices. The justices' papers are screened for signs of bargaining, thinking ahead, "manipulating the agenda, and engaging in sophisticated opinion writing." Bargaining is common throughout the process. The ultimate weapon in granting concessions on whether to hear a case is a dissenting opinion. According to Justice Stevens: "Occasionally a written statement of reasons for granting certiorari is more persuasive than the Justice's oral contribution to the Conference." Bargaining over the merits of a case is readily evident. An example among many: Powell sent O'Connor this memo along with his opinion draft. "Here is the first draft . . . .As I need you for a Court, and also because of your experience and special interest, I send the draft to you before circulating it. I had in mind, of course, the two concerns that you have expressed to me."
A tabulation of substantive bargaining memoranda shows an average of nearly nine memos in each of the 125 landmark cases decided in the 1983 term and an average of nearly four in each of the total of 157 decisions for the term. Because of his role as Chief Justice and because of his policy preferences, Burger provides amble evidence of attempts to manipulate the agenda of the Court. As you might imagine, Douglas calls him to task for his sometimes blatant manipulations. The authors document the numerous changes in draft opinions to support their contention that the politics of opinion writing is a common form of strategic behavior
Institutions (internal norms, rules and procedures and external considerations) also structure the strategic behavior of the justices. The "rule of four" and opinion writing assignments constitute the internal structures within which the justices act and relations with Congress (separation of powers) and the public (legitimacy) are the external institutions that guide the justices' strategic thinking.
The choices involved in ROE v. WADE (1973) provide the authors with a case study of manipulating opinion assignments for strategic reasons. However, ROE was not an exception. The justices care about who assigns and to whom an opinion is assigned for it provides them with opportunities for strategic behavior.
Not only are the justices constrained by the internal norms and rules but are expected to pay heed to Congress and to the American public. The authors begin their analysis with a review of the politics surrounding MARBURY and MCCARDLE to show the Court being checked by the president or Congress. The authors add further evidence of the importance of separation of powers from a number of other studies. Stare decisis proves to be a strong norm for maintaining public legitimacy. The point of the authors again is that both internal and external structures supply some predictability to the justice's behavior, prompting strategic choices.
We are not told how new justices become socialized into strategic behavior, whether the Court bureaucracy plays a restraining role, whether lower courts help set the agenda, what strategies may be used during oral arguments in open court, and what part the law clerks play in the process. Nonetheless there is more than enough material to challenge our thinking on Court politics.
Epstein and Knight have provided us with an intriguing framework for analyzing Supreme Court's role in policy making. However, they admit that what remains is the goal "to understand how [strategic] choices come together to explain the substantive content of law.
The authors provide the means to check their data, through their internet website. They also build nicely on existing scholarship on the Supreme Court. Nearly every page has a footnote, expanding further on their assertions and answering questions that arise. Also the endnotes provide a valuable bibliography for further study.
The book should be read by all of us who are interested in the politics of Supreme Court decision-making.
