Swineherds and Hogs on Ice: Leadership Impacts for State Chief Judges

Date01 May 2021
Published date01 May 2021
Subject MatterArticles
/tmp/tmp-17zSmosdsyUAi4/input 989019APRXXX10.1177/1532673X21989019American Politics ResearchGray and Miller
American Politics Research
2021, Vol. 49(3) 319 –327
Swineherds and Hogs on Ice: Leadership
© The Author(s) 2021
Article reuse guidelines:
Impacts for State Chief Judges
DOI: 10.1177/1532673X21989019
Thomas Gray1 and Banks Miller1
Chief judges stand as visible leaders of their courts. Analyses of the Supreme Court focus on the role of the chief justice as
an institution-builder seeking out public-facing consensus to protect Court legitimacy. Studying the powers of chief judges
and political leadership in general is difficult. Analyzing all 50 states over 16 years we find no evidence that the identity of
chief judges explains consensus behavior any better than random chance. This is true even among the subset of chief judges
with additional institutional powers like opinion assignment. We show that court structures explain consensus, while leader
features do not. Being chief judge correlates with an elevated likelihood of being in the majority, particularly in cases decided
by one vote. These results add to our understanding of leadership on courts and imply that the office of chief judge at the
state level is more symbolic than uniquely powerful.
chief judge, state supreme court, consensus
Questions of the quality and capacity of political leadership
about leadership effects broadly, in that they tend to corre-
abound. Studies have analyzed mayors of major U.S. cities
late with findings for U.S. Mayors. We find that institutional
(e.g., Gerber & Hopkins, 2011) and U.S. Presidents (e.g.,
features of courts, such as court size and workload, are more
Canes-Wrone, 2006), as well as the effects of world leaders
likely consequential for consensus than who sits in the chief
on economic growth (Jones & Olken, 2005). These ques-
judge’s chair. Justice Rehnquist once likened the ability of
tions are particularly acute when it comes to the leadership
the chief justice to control the associate justices as similar to
of collegial courts, like the U.S. Supreme Court and state
the ability of one to control “hogs on ice” (Rehnquist, 1976,
supreme courts. This is because some leaders on these
p. 637), a statement that accords with our findings on con-
courts, known as chief justices or chief judges, are thought
sensus. Our analysis is the first of a two-question process:
to be able to bring disparate judges together to form a con-
(1) Is there a relationship between leadership and consen-
sensus, while others foster dissensus (e.g., Walker et al.,
sus? (2) If so, how?; and if not, why not? We answer the first
1989). Consensus is important because courts presenting a
question in the negative. As we explore below, there are two
united front are less susceptible to a host of potential inter-
potential explanations for finding that chief judges do not
branch threats, something that is particularly true for state
systematically alter consensus on state supreme courts.
supreme courts (Langer, 2002).
First, it might be that chief judges are consistently motivated
State supreme courts are increasingly important venues
to create consensus, but fail in the attempt. Second, it might
for policy change and the role of leadership within them is
be that chief judges do not systematically try to foster con-
understudied. Partially this is because the quantitative
sensus in the first place, rendering irrelevant the question of
assessment of the qualities of any particular political leader,
their capacity to do so. Our data are unable to distinguish
including chief judges, is difficult—some have said impos-
between these explanations and this second question is ripe
sible (Hall & Windett 2016, p. 685). We investigate whether
for additional analyses.
the personal qualities of leadership from the chief judges on
In addition, we take advantage of the greater variation
U.S. state supreme courts helps to build consensus on those
offered by studying state courts to analyze whether judges
courts. By applying a newly created randomization-infer-
are more successful as chief judges compared to when they
ence technique (Berry & Fowler, 2018), we overcome some
of the difficulties previously thought insurmountable in the
1University of Texas at Dallas, Richardson, USA
assessment of leadership effects. We find that there is no
evidence that the personal leadership qualities of chief
Corresponding Author:
Banks Miller, University of Texas at Dallas, Political Science Program,
judges matter for a host of measures of consensus on state
800 West Campbell Road, GR 31, Richardson, TX 75080, USA.
supreme courts. Our results have implications for the debate
Email: millerbp@utdallas.edu

American Politics Research 49(3)
serve as a regular judge on a state supreme court. We find
of some CJs to assign who writes an opinion and, because
that judges serving as chief judge are more likely to vote
writing a separate opinion is time consuming, the resources
with the majority of the court, particularly in cases decided
of the associate judges in explaining consensus on state
by one-vote margins, than they are when they are serving as
supreme courts (Hall & Windett, 2016; Langer et al., 2003).
a regular judge. In addition, we show that this benefit
An additional perk commonly granted to CJs in the states is
accrues to the chief judge simply by virtue of holding the
the right to vote last at conference, as in the U.S. Supreme
office and does not stem from special powers given to the
Court. Finally, some CJs are elected to the position by voters
chief judge, such as the ability to assign opinion-writing
or their peer judges, while other CJs are placed in the posi-
duties. However, these benefits are typically very small (less
tion simply due to seniority or because of rotational prac-
than five percentage points) and are estimated with preci-
tices. We also investigate whether variation in the power of
sion due to the power provided by a large dataset with sig-
the CJs correlates with their ability to create consensus.
nificant variation across states.
Yet these institutional explanations have bypassed the
possibility that some state supreme court CJs might be bet-
Chief Judges and Court Consensus
ter at creating consensus on their courts—something the
literature on the U.S. Supreme Court has referred to as task
Scholarly investigations into the role of the chief justice in
and social leadership. Task leadership reflects the ability of
reducing dissent on the U.S. Supreme Court are legion (e.g.,
the CJ to control discussion and to assign opinions, while
Caldeira & Zorn, 1998; Danelski, 1960; Haynie, 1992;
social leadership is the ability to convince judges to sup-
Walker et al., 1989). Many of these investigations focus on
press their dissents (Danelski, 1960).2 John Marshall’s
the apparent collapse of consensual norms of decision mak-
leadership abilities helped establish norms of consensus on
ing in the early 1940s, when the share of cases with a dissent-
the Court (e.g., Walker et al., 1989). Work pinning the col-
ing opinion increased 60 percentage points. Many previous
lapse of consensual norms on the court to the leadership of
works have suggested the leadership style of Chief Justice
Chief Justice Stone focuses on his disinterest in undertak-
Stone was the primary culprit in the collapse of these consen-
ing these types of leadership roles.
sual decision-making norms (e.g., Walker et al., 1989).
A finding that being CJ does not correlate with consen-
Others have emphasized more institutionally oriented expla-
sus is behaviorally equivalent with two explanations: that
nations, including giving the Court the ability to select its
they try and fail to achieve consensus and that they do not
own cases and a change in the underlying composition of
try in the first instance (e.g., Chief Justice Stone).3 The first
cases decided by the Court (e.g., Caldeira & Zorn, 1998;
explanation, trying but failing, is built on the perceived
Hendershot et al., 2012). Yet distinguishing these explana-
benefits of consensus for courts, including greater legiti-
tions can be difficult because there are so few total chief jus-
macy with the mass public (Zink et al., 2009), accordance
tices against which to gauge leadership outcomes.1
with professional norms (Leonard & Ross 2014), and a
Considerably more variation is available when analysis
reduced likelihood of interference from another branch of
moves to state supreme courts, where there are many chief
state government (Langer et al., 2002; Leonard & Ross,
judges (CJs) across all 50 states. Consensus on state
2014). The second explanation, that CJs do not attempt to
supreme courts is likely to be particularly important because
create consensus, is consistent with the notion that judges
state supreme courts are more vulnerable to court-curbing
have a preference for leisure (e.g., Baum, 2010; Epstein
measures than is the U.S. Supreme Court. For instance, the
et al., 2013) and that marshalling a court is time consuming
Brennan Center reported that in 2018 at least 18 states con-
and ultimately not likely to be successful. Further, given
sidered bills that would reduce the independence of state
frequent rotation into and...

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