Sincere and strategic voting norms on multimember courts.

AuthorCaminker, Evan H.

INTRODUCTION

In appellate adjudication, decisions are rendered by a multimember court as a collective entity, not by individual judges. Yet legal scholars have only just begun to explore the formal and informal processes by which individual votes are transformed into a collective judgment.(1) In particular, they have paid insufficient attention to the ways in which the vote of each individual judge is influenced by the views of her colleagues on a multimember court.

In recent years, a growing number of political scientists exploring judicial behavior have modelled this aspect of adjudication. Building on Walter Murphy's pathbreaking work thirty-five years ago,(2) these scholars view judges as rationally seeking, within their institutional environment, to achieve certain goals. Most presume or purport to demonstrate that judges are guided by personal policy preferences;(3) some lawyer-economists and others posit different goals motivating judicial behavior.(4) Whatever the presumed objective, however, some theorists have recognized that judges "are strategic actors who realize that their ability to achieve their goals depends on a consideration of the preferences of others, of the choices they expect others to make, and of the institutional context in which they act."(5) In certain contexts a rational judge will deviate from her personal sincere views about the law in order to secure the most desirable collective decision possible, given the views held by the other relevant participants (judges or other governmental actors) who share input into that final collective decision.(6)

This political science scholarship is either empirical or predictive, identifying when strategic behavior does or is likely to occur. It tells us nothing about how judges ought to operate. This normative question is my focus here: Under what circumstances, and for what ends, may a judge appropriately engage in strategic behavior as a member of a multimember court?

Not infrequently, there will be opportunities for an individual judge to make her court's disposition of a case more compatible with her convictions overall by misstating her convictions as to particulars. The details may vary, but the abstract structure of these situations is simple. A judge will discover that by supporting an outcome or rationale with which she disagrees, she can prevent her court's adoption of some other outcome or rationale that she thinks worse either for justice in the case before her or for the state of the law, in general.(7) When such opportunities arise, must a judge be exclusively input-focused, always voting for rules that reflect her best personal judgment as to how a legal issue ought to be addressed without considering how her input will affect the Court's collective output? Or may the judge be output-focused, voting to secure what she deems the best possible collective resolution of the case, even if to do so she must strategically suppress or misrepresent her sincere personal views?

Prevailing consensus appears to endorse some middle position. Certain forms of strategic behavior, such as insincere voting to forge a majority or unanimous coalition, are routinely practiced and viewed as permissible, perhaps even obligatory to some unspecified degree.(8) Other forms, such as misrepresenting one's position in a case in order to better advance her preferred outcome in that very case, are either ignored or viewed with vague suspicion.(9) Still other forms of strategic behavior, such as stark vote trading across unrelated cases, are roundly condemned.(10)

This article explores the intuitive normative differentiation between various forms and contexts of strategic voting. Judicial vote trading is repudiated: but why? Because it has pernicious effects? Because it employs impermissible means of decisionmaking? Because it strives for impermissible goals? And once we identify the salient conceptualization(s) of adjudication that make this practice improper, what implications do those conceptualizations have for other forms of strategic voting, or even more conventional adjudicatory practices? At bottom, what are and should be the fundamental "rules of the game"(11) governing collegial adjudication?

I approach this inquiry by identifying and exploring various conceptions of the adjudicatory process that can plausibly justify a norm prohibiting vote trading. My goal is neither to challenge the conventional wisdom that vote trading is improper, nor to defend it (although I agree with it) from a singular perspective; I shall let the reader draw her own conclusions on this score. My goal is to develop and explore analytical foundations for our currently vague intuitions regarding vote trading; more generally to edify our views concerning less controversial strategic adjudicatory practices; and most generally to provoke deeper thought about the nature and goals of collegial rather than solo-judge decisionmaking. Indeed, the ensuing discussion will expose just how much our understanding of multimember adjudication remains underdeveloped and the governing principles remain ambiguous.(12) It will also highlight the implications of embracing various adjudicatory conceptions. Some arguments against vote trading also challenge other conventionally condoned or ignored judicial practices, and thus deeper consideration of vote trading may force us to rethink our current intuitions underlying other aspects of judicial decisionmaking. To the extent that judicial behavior is shaped by internalized professional role-commitments, clarification of the proper norms governing multimember adjudication might actually influence the process by which judges transform their atomistic judgments into collective determinations.(13)

Before proceeding, some initial definitions and caveats are appropriate. First, the adjective "strategic" might seem ambiguous because different scholars use it for different purposes, and misleading because it sounds pejorative even though it is not intended as such. Throughout this article I shall use the term "sincere voting" to refer to the vote that represents an individual judge's top-ranked or ideal judgment as to what constitutes the best response to resolve a discrete legal controversy, without considering the impact of his vote on the substantive collective result in his court or in other institutions. In other words, a judge votes sincerely if he supports the position that he honestly thinks should win and that he would endorse were he alone on the court. I shall use the term "strategic voting" to refer to a judge's decision to vote for a position that does not truly reflect his "sincere" judgment in order to secure the best feasible outcome given the influence of his colleagues in the decisionmaking process. To keep this specific focus on collegial interplay in mind, one might mentally substitute the phrase "peer-strategic" for "strategic" as I employ it here.

Second, to make this inquiry more manageable, I confine my focus to strategic behavior by Justices on the Supreme Court of the United States.(14) I also focus solely on the Court's merits determinations, even though the Justices confront opportunities for strategic behavior with respect to other important decisions as well.(15)

My inquiry proceeds as follows. Part I sketches the decisionmaking process of a Justice deciding cases by herself, and then uses this model of "solo adjudication" as a backdrop against which to introduce an input-focused and output-focused model of multimember adjudication. Part II details the opportunities and incentives for strategic voting on multimember courts, both with respect to the form of judicial opinions and their substantive content. Section III.A considers the extent to which norms governing solo adjudication constrain Justices on collegial courts from engaging in vote trading and other types of strategic voting, and sections III.B through III.D consider whether this behavior is inconsistent with various conceptions of the teleology of multimembership in appellate adjudication.

When deeply probed, the intuitive line between acceptable and unacceptable strategic behavior grows more fuzzy, and its analytical grounding more elusive and complex. Perhaps in the end the propriety of strategic voting rests on one's choice of "first principles" of adjudication in general, and multimember adjudication in particular -- principles that are not easily defended in analytical terms. Let me emphasize from the outset that I promise no definitive answers to some of the most important questions I ask about the aims of the multimember adjudicative enterprise. Exploration and illumination, more than conclusive resolution, are this article's objectives.

  1. SINCERE DECISIONMAKING IN SOLO AND COLLEGIAL ADJUDICATION

    At the outset, let me identify this project's central premise concerning judicial motivation: subject to resource constraints, judges endeavor to discern and render their best judgment as to the proper resolution of cases according to their best conception of the law. By this assumption I intend to distinguish my analytical approach from that employed by much recent literature concerning judicial behavior, which posits that judges employ instrumental rationality to advance one or more personal agendas (such as a desire to imbue the substantive content of the law with their personal policy preferences, to enhance their professional reputation and personal prestige, and to enhance leisure).(16) Whatever the extent to which such objectives actually influence judicial behavior, I embrace the conventional view that a normative account of adjudication should view judges as rendering judgments rather than expressing personal preferences about the law.(17) For my purposes here I need not privilege any one of the various jurisprudential theories that have been developed to explain how Justices properly determine law's meaning and best implement that meaning...

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