Consider the Source (and the Message)

• Date: 01 June 2012
• DOI: 10.1177/1065912910395324
• Published date: 01 June 2012
• Author: Ryan C. Black,Ryan J. Owens
• Subject Matter: Articles

Political Research Quarterly

65(2) 385 –395

© 2012 University of Utah

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DOI: 10.1177/1065912910395324

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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 jus-

tices 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 sup-

port—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 offen-

sive 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 conser-

vative 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 unpleas-

ant 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

1Michigan State University, East Lansing, MI, USA

2Harvard University, Cambridge, MA, USA

Corresponding Author:

Ryan C. Black, Michigan State University, Department of Political

Science, 303 South Kedzie Hall, East Lansing, MI 48824

Email: rcblack@msu.edu

Consider the Source (and the Message):

Supreme Court Justices and Strategic

Audits of Lower Court Decisions

Ryan C. Black1 and Ryan J. Owens2

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