Assessing the Applicability of Strategic Theory to Explain Decision Making on the Courts of Appeals

• DOI: 10.1177/1065912908319253
• Author: Donald R. Songer,Jennifer Barnes Bowie
• Published date: 01 June 2009
• Date: 01 June 2009
• Subject Matter: Articles

Political Research Quarterly
Volume 62 Number 2
June 2009 393-407
© 2009 University of Utah
Assessing the Applicability of Strategic
10.1177/1065912908319253
http://prq.sagepub.com
Theory to Explain Decision Making on
hosted at
http://online.sagepub.com
the Courts of Appeals
Jennifer Barnes Bowie
George Mason University, Fairfax, Virginia
Donald R. Songer
University of South Carolina, Columbia
The focus of this analysis is whether a strategic perspective provides a useful approach that enhances an understand-
ing of broad patterns of judicial decision making on the U.S. Courts of Appeals. The authors examine whether it is
reasonable in the majority of cases for appeals court judges to modify their behavior when necessary to avoid rever-
sal by the Supreme Court. This assessment utilizes statistical analyses and interviews from twenty-eight judges on the
U.S. Courts of Appeals. Based on a three-part argument, the authors conclude that a strategic perspective is not help-
ful in understanding the decision calculus of appeals court judges.
Keywords:
courts of appeals; strategic decisions; judicial decision making; reversal; judge interviews
Strategic approaches to appellate court decision we find that circuit judges do not have a strong sense
making, like attitudinal models, usually posit that
of which of their decisions are likely to be reviewed
judges have a goal of making good public policy that
and potentially reversed by the Supreme Court.1
is consistent with their own personal political prefer-
Second, we present an analysis of actual appeals
ences (Cross and Tiller 1998; Epstein and Knight
court decisions that indicates that even if one makes
1998, 2000; McNollgast 1995). But in contrast to atti-
very conservative assumptions, the objective proba-
tudinal models that argue that judges vote sincerely to
bility that all but a handful of these cases will be
support case outcomes that they most prefer, judges
reviewed and reversed is so small that a rational judge
who vote strategically take into account the potential
would not fear reversal unless the costs of such a
actions of other actors and may modify their behavior
reversal were quite high.2 Finally, we show that in
in response to probable reactions of others (Baum
fact, the perceived costs of reversal are much too
1997). The main strategic question facing appeals
small to motivate judges to change their behavior to
court judges is usually assumed to be whether they
attempt to avoid reversal by the Supreme Court.
will modify their behavior to avoid reversal by the
We evaluate these conditions for rational strategic
Supreme Court (McNollgast 1995; Songer, Segal, and
action with two independent sources of information.
Cameron 1994; Klein and Hume 2003).
First, we rely on interviews with U.S. Courts of
The focus of the present analysis is whether a
Appeals judges to assess their ability to predict which
strategic perspective provides a useful general
cases will be reviewed and to understand their percep-
approach that enhances an understanding of broad
tions about the costs of reversal. Second, we model
patterns of decision making by judges on the U.S.
empirically the factors associated with Supreme
Courts of Appeals. In particular, we examine whether
it is rational in the majority of cases for appeals court
Jennifer Barnes Bowie, Assistant Professor of Public and
judges to modify their behavior when necessary to
International Affairs, George Mason University; e-mail:
avoid reversal by the Supreme Court. We conclude
jbowie@gmu.edu.
that in a large majority of the cases they decide, a
Donald R. Songer, Professor of Political Science, University of
strategic perspective is not helpful in understanding
South Carolina; e-mail: dsonger@sc.edu.
the decision calculus of appeals court judges. That
Authors’ Note: Thanks to Christopher Zorn for his extensive and
conclusion is based on a three-part argument. First,
helpful comments and to the three anonymous reviewers.
393

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Political Research Quarterly
Court review, relying solely on the characteristics of
cannot predict which cases will be reviewed, then it
the cases that would be known to appeals court
would be impossible for them to act strategically.
judges at the time of their decision.
However, if judges can predict the likelihood of
review, then it is reasonable to assume they might act
differently on cases that they believe will be reviewed
Strategic Accounts of
by the Court, especially if reversal is deemed costly.
Judicial Behavior
Extant scholarship suggests that attitudes have a
Strategic Accounts of the
substantial effect on the behavior of all appellate
U.S. Courts of Appeals
court judges in the United States (Hettinger,
Lindquist, and Martinek 2004, 123). Nevertheless,
The evidence is relatively strong that the internal
even when restricting focus to the policy-relevant
dynamics of appeals court decision making includes
behavior of appellate judges, there appears to be an
extensive interaction among the judges. The nature of
increasing number of scholars who argue that judges
this internal strategic interaction came through clearly in
do not vote their sincere ideological attitudes but
the interviews we conducted with judges on the courts
instead temper their private preferences with strategic
of appeals.5 For instance, Judge B told us that “there is
calculations about the probable reaction of others
a certain amount of brokering going on; I wrote a
(Epstein and Knight 1998).
lengthy statement this morning to a colleague that said I
An important dispute is whether appeals court
agreed with the result but wanted to change the way the
judges’ voting is motivated by fear of reversal by the
opinion was structured. In the memo, I said that if the
Supreme Court. While some scholars have argued
other judge was able to make those changes, I would be
that U.S. Courts of Appeals judges can anticipate
able to join the opinion.” When asked about this com-
when the U.S. Supreme Court will review a case and
ment of Judge B, his colleague Judge C went so far as
will modify their decision in anticipation of the prob-
to say that such accommodation “is an integral part of
able Supreme Court response, others disagree and
the process; it is the core of the appellate process.”
claim to find no evidence of strategic behavior
Similar comments were made by virtually all of the
(Hettinger, Lindquist, and Martinek 2004). The
judges we talked to. Negotiation, compromise, and
judges themselves also disagree with the advocates of
respect for the positions of colleagues are seen by
strategic perspectives. Interviews conducted by the
appeals court judges as a normal part of crafting opin-
authors with twenty-eight judges on the courts of
ions. There is a definite attempt to accommodate each
appeals in the United States found the judges to be
others’ views “whenever possible.” Such strategic inter-
nearly unanimous in their view that neither they nor
action occurs because the judges come to know their cir-
their colleagues act strategically to avoid review.3
cuit colleagues quite well due to the extensive
Furthermore, other recent interviews with judges on
interaction they have with them. In fact, Judge A said
the U.S. Courts of Appeals came to a similar conclu-
that when he starts reading the briefs for a case, the first
sion (Klein 2002). Yet, advocates of strategic models
thing that pops into his mind is how his two colleagues
continually suggest that lower court judges fear
on the panel will react to the key issues. Judges may not
reversal from the Supreme Court.
have “perfect” information about their colleagues’ pref-
The underlying premise of strategic models is that
erences, but they have enough information that they feel
judges are motivated by their policy preferences and
confident about their ability to predict the probable reac-
that for judges to advance their policy preferences or
tion of their colleagues in many situations.
goals, they must calculate how others will react to their
There is less agreement about whether or how fre-
decisions.4 Both strategic theories of appeals court
quently appeals court judges react strategically to
decision making and legal model accounts of those
external actors. Strategic appeals court judges would
decisions posit that judges will depart from their
be most concerned with the potential reactions of two
private ideological preferences when deciding cases.
other institutional actors; most immediately, judges
But the accounts differ in an important way. “The legal
on a three-judge panel might be concerned about
model is retrospective and calls on circuit courts to
the possibility of reversal by their circuit sitting en
adhere the previous rulings of the Supreme Court. The
banc. Alternatively, they might consider the possibil-
strategic model is prospective and expects that circuit
ity of reversal by the Supreme Court. In examining
courts will respond to the anticipated future holdings
whether federal appeals court judges act strategically in
of the Court” (Cross 2007, 97). If lower court judges
anticipation of en banc review, research has focused

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Barnes Bowie, Songer / Strategic Theory
395
on dissenting behavior. Van Winkle (1997), Cross and
Existing evidence on whether appeals court
Tiller (1998), and Hettinger, Lindquist, and Martinek
judges follow precedent because they are socialized
(2004) analyzed whether judges act strategically
to accept precedent or because they fear reversal is
when...