Consider the Source (and the Message): Supreme Court Justices and Strategic Audits of Lower Court Decisions

Article excerpt

Abstract

Given scarce resources, Supreme Court justices hear cases that maximize their auditing capacities. The authors argue that justices rely on the identity of lower court judges and the ideological disposition of lower court decisions to decide which cases to review. The authors find justices are most likely to audit disagreeable lower court decisions rendered by ideologically disagreeable panel judges and are least likely to review agreeable lower court decisions rendered by ideologically agreeable panel judges. Furthermore, when faced with the same ideologically disagreeable lower court decision, justices are less likely to review decisions made by ideological allies than those by ideological foes.

Keywords

judicial hierarchy, agenda setting

How can justices most profitably spend their scarce resources auditing lower court decisions? Recent studies of Supreme Court agenda setting suggest that justices review lower court decisions, in large part, to ensure that the Court renders decisions that improve policy for them (Black and Owens 2009a; Caldeira, Wright, and Zorn 1999). Thus, conservative justices unchain the Court to overrule liberal lower court decisions while liberal justices investigate and scrutinize conservative lower court decisions to supplant them with liberal precedent. Despite the theoretical and methodological simplicity attached to such assumptions-not to mention their empirical support- it is quite likely that when auditing lower court decisions, Supreme Court justices examine not only the ideological disposition of the lower court decision but also the ideological composition of the panel of lower court judges rendering that decision. Justices will devote their finite auditing capacity to the most offensive lower court decisions. Determining which cases are most offensive requires a focus on both the message sent by the lower court (i.e., the ideological disposition) and the identity of the message sender (i.e., the composition of the lower court panel).

Building on existing scholarship (Cameron, Segal, and Songer 2000), we argue that justices rely on the identity of lower court judges on the panel making the decision as well as the disposition of the lower court decision to aid them in deciding which cases to review. That is, while the ideological disposition of the lower court decision matters, not all conservative or liberal dispositions tell the same story. Conservative justices are likely to react more aggressively to liberal lower court decisions rendered by liberal lower court panels than liberal decisions rendered by conservative lower court panels. Conversely, liberal justices should behave more aggressively toward conservative decisions rendered by conservative lower court panels than from panels consisting of liberal judges. The reason, we argue, stems from the signal sent by the lower court. Lower court dispositions at odds with the lower court judges' general ideological proclivities are likely to be perceived as more credible signals about the "right" legal outcomes. Justices faced with ideologically unpleasant lower court decisions will be more likely to let them stand if rendered by ideological allies. In short, we argue that sender identity and ideological congruence jointly influence justices' agenda setting behavior.

To test this account, we examine a random sample of 358 agenda-setting petitions decided across the first eight terms of the Rehnquist Court (1986-1993). Our results confirm our hypotheses. Justices are most likely to audit ideologically incongruent lower court decisions rendered by ideological foes and are least likely to audit ideologically congruent decisions rendered by lower court allies. At the same time, justices are more likely to review ideologically incongruent lower court decisions made by ideological foes than those rendered by lower court allies. Simply put, justices expend their scarce resources auditing lower court decisions that are the most likely to offend them and that provide the most utility from review, and they do so by examining both the ideological disposition of the case and the identity of the lower court judges. …