Administrative Appeals to the U.S. Supreme Court: The Importance of Legal Signals

• Date: 01 November 2007
• DOI: http://doi.org/10.1111/j.1740-1461.2007.00101.x
• Author: Robert J. Hume
• Published date: 01 November 2007

Administrative Appeals to the U.S.

Supreme Court: The Importance of

Legal Signals

Robert J. Hume*

When do federal agencies appeal adverse circuit court decisions to the U.S.

Supreme Court? It is hypothesized that features of judicial opinions, such as

the basis of the court’s ruling and the evidence used to support it, can affect

whether a petition is filed. Judges send signals in their opinions that dis-

courage petitions, even though parties are otherwise under no legal obliga-

tion to refrain from seeking higher court review. Using an original database,

this study finds that legal signals do influence the certiorari process, but that

the filing of petitions is also affected by an agency’s ideological preferences

and the likelihood of review by the Supreme Court.

I. Introduction

Students of judicial impact might assume that lower federal courts have only

limited control over whether litigants appeal adverse rulings to the U.S.

Supreme Court. If the judiciary is the “least dangerous branch,” as commen-

tators since Alexander Hamilton have observed, then surely circuit judges

have little influence over the certiorari process. The filing of certiorari

petitions is the prerogative of litigants, not courts, no matter how strongly

circuit judges might object to the legal claims that litigants are advancing. Yet

it is possible that judges send signals in their opinions that influence the

decision to seek further review.

*Department of Political Science, Fordham University, Bronx, NY 10458; email: rhume@

fordham.edu.

A previous version of this article was presented at the 2006 Annual Meeting of the Southern

Political Science Association in Atlanta, GA. The author thanks discussants Joseph Smith and

Virginia Hettinger for their helpful comments and advice, as well as David Klein, David O’Brien,

Theodore Eisenberg, and the anonymous reviewers at the Journal of Empirical Legal Studies.

Journal of Empirical Legal Studies

Volume 4, Issue 3, 625–649, November 2007

©2007, Copyright the Author

Journal compilation ©2007, Cornell Law School and Blackwell Publishing, Inc.

625

What types of signals might judges communicate? Judges can empha-

size that an area of law is stable and well settled by including a large number

of block quotations in their opinions; or they can signal that a case lacks

substance by dismissing it on procedural grounds instead of addressing the

merits. Other times, opinions might encourage petitions by signaling that

the court’s understanding of the law is inflexible, leaving higher court review

the only legal recourse. To the extent that judges control the signals com-

municated by their opinions, they have the potential to encourage or dis-

courage further review by providing information about the state of the law,

or at least the court’s understanding of it. Even if litigants are not persuaded

that the court is correct, they might be convinced that their chances of

success on appeal are small.

That judges would use opinion content in this manner is consistent

with strategic accounts of judicial behavior. Although studies of the judiciary

have shown that case outcomes, at least at the Supreme Court level, are

determined by attitudes (Pritchett 1948; Schubert 1958, 1959; Spaeth 1964;

Danelski 1966; Segal & Cover 1989; Segal & Spaeth 1993), strategic theorists

have observed that the crafting of opinion content might be affected by the

behavior of others on and off the bench (Spiller & Spitzer 1992; Epstein &

Knight 1998; Tiller & Spiller 1999; Maltzman et al. 2000; Smith & Tiller 2002;

Hume 2006). Smith and Tiller (2002) find, for example, that lower court

judges manipulate the grounding of a decision when they wish to avoid

higher court review.1More recently, Hume (2006) has shown that U.S.

Supreme Court Justices make strategic use of sources like the Federalist Papers

in order to enhance the legitimacy of case outcomes (see also Corley et al.

2005). These studies indicate that judicial opinions do influence the behav-

ior of other actors, and that opinion content therefore has the potential to

influence a litigant’s decision to seek higher court review.2

1As Smith and Tiller (2002:61–62) observe: “There are compelling reasons to believe that the

choice of a particular judicial instrument has important consequences for determining how

resistant decisions are to reversal bodies with authority to review the court’s decisions.”

2To be sure, a finding that litigants respond to legal signals does not necessarily mean that

judges consciously craft their opinions with certiorari in mind, although such a finding would

be consistent with strategic explanations (Smith & Tiller 2002; Corley et al. 2005; Hume 2006).

It is possible that the same factors that discourage litigants from seeking further review, such as

their perceptions of the stability of an area of law or its procedural nature, are what prompt

judges to emphasize these points in the first place. Yet, even if the inclusion of legal signals is not

a deliberate strategy, a finding that these signals affect certiorari rates would demonstrate that

626 Hume