Bargaining and Accommodation on the United States Supreme Court

Article excerpt

For Justices, bargaining is a simple fact of life. Despite conflicting views on literary style, relevant precedents, procedural rules, and substantive policy, cases have to be settled and opinions written; and no opinion may carry the institutional label of the Court unless five Justices agree to sign it.1

The opinion writing process on the United States Supreme Court is a collaborative enterprise among the justices. For most cases, the majority coalition must consist of at least five justices; thus, "court opinions reflect the need to accommodate other justices through bargaining and compromise as well as each justice's pursuit of an individual policy agenda."2 In other words, justices behave strategically. They pursue their own policy preferences, but they are constrained by their colleagues.

Bargaining on the merits typically begins after the opinion writer sends the first draft to the full Court. From there, the justices who voted with the majority at the initial conference may attempt to bargain over the language of the opinion, including the rationale it invokes and the policy it adopts. The content of opinions is important to the justices and they frequently make concerted efforts to shape the final version.3 "[J]ustices care about the development of the law, rather than merely a case's disposition...."4

Justices can bargain in many different ways. They can issue memos in which they make suggestions for opinion revision, describe future action, or explain their action.5 They can also circulate separate writings. In addition, there is more informal bargaining that occurs between the clerks acting on behalf of the justices.

If their suggestions are not accommodated, the justices may write or join a concurrence. Thus, any bargaining statement is a potential concurrence. If the justice is accommodated, there is no concurrence published; however, if the justice is not accommodated, the justice may write or join a concurrence. The concurrence "can ultimately serve as a sanction bv articulating the flaws in the majority opinion."6 As Murphy explains, "The two major sanctions which a justice can use against his colleagues are his vote and his willingness to write opinions which will attack a doctrine the...majority wishes to see adopted."7

Previous literature that has examined bargaining and accommodation on the Court has interpreted the revision of the majority opinion and the circulation of multiple drafts as an indicator of strategic behavior of justices, using the number of draft opinions as a proxy for accommodation. Specific conditions have been identified that affect bargaining and accommodation, such as the size of the majority conference coalition, the ideology of the opinion writer relative to the majority conference coalition, and the number of suggestions. While these studies have increased our understanding of the process of bargaining and accommodation on the Supreme Court, they do not tell us what, specifically, the justices are bargaining about. Is the justice seeking a minor modification or a major one? How many justices are asking for the changes? Are they asking for the same change or is the opinion writer confronted with the task of negotiating with justices whose suggested modifications are at odds with each other? Although the opinion writer may circulate another draft, what was the specific accommodation made? In order to answer these questions, I use the papers of Justice Harry A. Blackmun, examining and analyzing the opinions in which Justice Blackmun was the majority opinion writer.8 Although there are limits to a study that focuses solely on the opinions of Justice Blackmun, by studying one particular justice in detail this article provides a telling picture of the bargaining process.

Specifically, this article focuses on the 1986-1989 terms. Previous literature has focused on earlier Court eras, and, to my knowledge, no one has examined the bargaining and accommodation that has taken place since the 1985 term. …