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Institutional Games and the U.S. Supreme Court

Institutional Games and the U.S. Supreme Court

James R. Rogers
Roy B. Flemming
Jon R. Bond
Copyright Date: 2006
Pages: 320
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  • Book Info
    Institutional Games and the U.S. Supreme Court
    Book Description:

    Over the course of the past decade, the behavioral analysis of decisions by the Supreme Court has turned to game theory to gain new insights into this important institution in American politics. Game theory highlights the role of strategic interactions between the Court and other institutions in the decisions the Court makes as well as in the relations among the justices as they make their decisions. Rather than assume that the justices' votes reveal their sincere preferences, students of law and politics have come to examine how the strategic concerns of the justices lead to "sophisticated" behavior as they seek to maximize achievement of their goals when faced with constraints on their ability to do so.

    InInstitutional Games and the U.S. Supreme Court, James Rogers, Roy Flemming, and Jon Bond gather various essays that use game theory to explain the Supreme Court's interactions with Congress, the states, and the lower courts. Offering new ways of understanding the complexity and consequences of these interactions, the volume joins a growing body of work that considers these influential interactions among various branches of the U.S. government.


    Kenneth A. Shepsle, Andrew De Martin, James R. Rogers, Christopher Zorn, Georg Vanberg, Cliff Carrubba, Thomas Hammond, Christopher Bonneau, Reginald Sheehan, Charles Cameron, Lewis A. Kornhauser, Ethan Bueno de Mesquita, Matthew Stephenson, Stefanie A. Lindquist, Susan D. Haire, Lawrence Baum

    eISBN: 978-0-8139-3419-8
    Subjects: Political Science

Table of Contents

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  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
    (pp. vii-xii)
    (pp. xiii-xx)

    In his splendid “Afterword” to this volume, Lawrence Baum offers an important observation, one that resonates with those of us who have been deploying models or using quantitative methods in various institutional vineyards lo these many years. If told as a fable, it would go something like this: Once upon a time, a tribe of modelers (or methodologists) invaded a substantive field, believing (perhaps a bit too confidently) they had something to contribute to making sense of extant empirical patterns, practices, and regularities there. Their arrival was not greeted with uniform enthusiasm by the local tribes living in the field...

  5. PART 1 Strategic Games with Congress and the States

    • Statutory Battles and Constitutional Wars: Congress and the Supreme Court
      (pp. 3-23)

      After theBrown v. Board of Education(347 U.S. 483 [1954]) decision, many political pundits were concerned about the power of the Supreme Court and its ability to enact seemingly countermajoritarian public policy. Yet, the Founders created a separation-of-powers system whereby no single institution could enact policy unilaterally. Indeed, it is precisely this institutional interdependence that allows for the possibility that the Court might remain a legitimate policymaking institution without producing public policy that is antidemocratic. And, as Murphy (1964) explains, both Congress and the president have a myriad of tools they can use to check what Hamilton called “the...

    • Why Expert Judges Defer to (Almost) Ignorant Legislators: Accounting for the Puzzle of Judicial Deference
      (pp. 24-42)

      Strategic behavior by judges is one way they can pursue their policy preferences in constitutional cases. Justices take into account the competing preferences of the elected branches to make feasible policy gains consistent with judicial views. So why, instead, would judges everdeferto legislatures? Judges often apply a deferential “rationality” standard to review the constitutionality of challenged legislation. Under this standard, judges do not directly decide whether they think legislation is constitutional or not. Rather, as Justice Stephen Breyer put it, judges review the constitutionality of legislation “at one remove” (United States v. Lopez514 U.S. 549 [1995], 617)....

    • Institutions and Independence in Models of Judicial Review
      (pp. 43-68)

      An enduring, fundamental question in American politics is how to reconcile the existence of an independent, nonaccountable judiciary with a democratically based system of government (e.g., Dahl 1957; Bickel 1962; Casper 1976). In particular, the existence of judicial review, whereby a nonelected Court may overturn laws enacted by a duly elected legislature, seems on its face profoundly threatening to the continued existence of a representative system of government. This “countermajoritarian difficulty” is a subject of continual and ongoing scrutiny among political and legal scholars alike.

      At the heart of this difficulty is the relationship between the Congress and the Supreme...

    • “John Marshall Has Made His Decision”: Implementation, Transparency, and Public Support
      (pp. 69-96)

      The U.S. Supreme Court ranks as one of the most significant and powerful judicial institutions in the world. In other advanced democracies, courts with the power of constitutional review also play an increasingly important role in the policymaking process (See Holland 1991 and Tate and Vallinder 1995). While these courts have successfully established a broad claim to the power of constitutional review,¹ they are curiously “weak” in one important respect: they have few means at their disposal to force compliance with their decisions. Whether President Andrew Jackson’s reaction to the U.S. Supreme Court’s decision inWorcester v. Georgia(31 U.S....

    • Court-State Interactions: National Judicial Power and the Dormant Commerce Clause
      (pp. 97-124)

      The rise of the “dormant Commerce Clause” (DCC) is often portrayed as a doctrinal tour de force of a powerfully ascendant U.S. Supreme Court. Richard Bensel, for example, expresses a typical view when he writes: “By striking down state attempts to regulate interstate commerce, the federal courts simultaneously consolidated national judicial supremacy (over state sovereignty) and constructed a national marketplace” (2000, 325, n. 122). Similarly, Felix Frankfurter refers to the DCC as an “audacious doctrine” that requires that “state authority must be subject to such limitations as the Court finds it necessary to apply for the protection of the national...

  6. PART 2 Strategic Games within the Judicial Hierarchy

    • A Court of Appeals in a Rational-Choice Model of Supreme Court Decision Making
      (pp. 127-172)

      Supreme Court justices—or at least the reigning majorities in cases—expect lower courts to cite, uphold, and implement their decisions. These expectations are clearly important. While the Supreme Court hears only a few dozen cases each year, the lower courts hear many thousands, and if the lower courts ignore Supreme Court decisions, those decisions will not become the law of the land in any practical sense. Hence, the question: How can the justices ensure that the lower courts will actually comply with the Supreme Court’s decisions?

      Early research concluded that there was a high degree of lower-court compliance with...

    • Appeals Mechanisms, Litigant Selection, and the Structure of Judicial Hierarchies
      (pp. 173-204)

      Judicial systems are typically organized as hierarchies, with rights of appeal from level to level. Why is this? Because appeals mechanisms are ubiquitous in court systems, this question is fundamental for our understanding the structure and operation of judicial organizations.

      We begin this essay with a structural analysis of appellate processes. The analysis characterizes the appellate process in terms of systemic features rather than individual behavior. In particular, we identify five key variables that allow a characterization of the performance of appeals processes. We then turn to consider specific ways of organizing appeals and focus in particular on appeals initiated...

    • Informative Precedent and Intrajudicial Communication
      (pp. 205-229)

      Political scientists have long recognized the importance of courts as political actors. However, while an extensive literature examines the judiciary’s strategic interaction with the other branches of government (e.g., Ferejohn and Weingast 1992, Gely and Spiller 1992), less attention has been paid to the effects of the institutional structure of the courts themselves on patterns of judicial decision making. Yet models of the judiciary’s unique institutional dynamics are essential to understanding the courts, just as analyses of congressional committees (e.g., Gilligan and Krehbiel 1990, Shepsle and Weingast 1987) or the bureaucracy (e.g., Moe 1982) are essential to understanding the legislative...

    • Decision Making by an Agent with Multiple Principals: Environmental Policy in the U.S. Courts of Appeals
      (pp. 230-260)

      Judges on the United States Courts of Appeals face a complex set of job requirements and constraints. In terms of their job requirements, circuit court judges must dispose of a mandatory docket comprised of cases arising in multiple issue areas, many of which are highly technical. Often, these caseloads are extremely heavy; in some circuits, judges decide hundreds of cases each year, drafting full opinions in many of them. Moreover, circuit judges decide cases in randomly assigned panels and generally do not distribute their workload on the basis of individual judges’ substantive expertise. Thus, they must familiarize themselves with case...

  7. AFTERWORD: Studying Courts Formally
    (pp. 261-274)

    Formal theory has a long history in the study of judicial behavior.¹ But its use was sporadic until the 1990s, when it emerged with surprising speed as a major approach to the analysis of judges’ choices.

    This development has brought enormous benefits to the field. Scholarship on judicial behavior had largely lost contact with broad theoretical issues. As a result, it had lost direction as well. A hallmark of the formal approach is its emphasis on explicit theoretical premises and systematic tracing of their behavioral implications. With that emphasis, formal research has helped to refocus scholars’ attention on fundamental questions...

  8. APPENDIX: A Primer on Game Theory
    (pp. 275-296)
    (pp. 297-314)
  10. Notes on Contributors
    (pp. 315-318)
  11. INDEX
    (pp. 319-336)
  12. Back Matter
    (pp. 337-338)