Trying to Get What You Want

• Published date: 01 December 2013
• Author: Rachel A. Schutte,Ryan C. Black,Timothy R. Johnson
• Date: 01 December 2013
• DOI: 10.1177/1065912913482757
• Subject Matter: Articles

Political Research Quarterly

66(4) 819 –830

© 2013 University of Utah

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DOI: 10.1177/1065912913482757

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Article

You can’t always get what you want, but if you try sometimes

well you just might find...

—The Rolling Stones (1968)

...[I]t is possible for the prospective loser to rearrange

politics to his advantage.

—William Riker (1990, 50)

Riker’s (1986) theory of heresthetics suggests that, if they

cannot be sure an outcome will end up where they prefer,

political actors may alter the decision-making process to

keep policy close to where they want it. According to his

theory, one way prospective losers can accomplish this

goal is by manipulating the alternatives available from

which to choose. In this article, we seek to analyze

whether political actors, as “herestheticians,” systemati-

cally add issues to the agenda to ensure that policy out-

puts stay as close as possible to their preferences (e.g.,

Riker 1984, 1986).

To test this use of heresthetical maneuvers, we turn to

an institution ripe for their invocation: the U.S. Supreme

Court. In particular, we examine the practice of justices

highlighting or raising threshold issues during oral argu-

ments that may keep the Court from reaching the substan-

tive issues of a case. We theorize that justices, as strategic

actors, deploy this tactic when the merits policy decision

will be incongruent with their own preferences. Results

from our empirical analysis provide partial support for

our argument. We find that justices raise threshold issues

more often during oral arguments when the Court’s mer-

its outcome would push policy further from their ideal

point than the current legal status quo.

Our study makes multiple important contributions.

First, we provide a much-needed systematic empirical

analysis of Riker’s seminal theory, which, to date, has

received few such treatments. While Riker (1986) tasked

future scholars to search for regularities in heresthetical

behavior, as Epstein and Shvetsova (2002, 1001) put it,

“His models [have] served rather as rationalized stories

fitted to particular cases.” Second, our analysis also sheds

substantive light on the role of threshold issues. While

constitutional law scholars frequently emphasize these

issues as important limits to judicial power, empirical

treatments of the topic are scarce. As such, consistent

with a growing body of literature on the joint effect of law

and policy on judicial decision making (e.g., Hansford

and Spriggs 2006), we find that justices can actually use

these legal issues to pursue policy goals.

482757PRQXXX10.1177/1065912913482757Political Research QuarterlyBlack et al.

research-article2013

1Michigan State University, East Lansing, MI, USA

2University of Minnesota, Minneapolis, MN, USA

Corresponding Author:

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

University, 368 Farm Lane, S303, East Lansing, MI 48824, USA.

Email: rcblack@msu.edu

Trying to Get What You Want:

Heresthetical Maneuvering and U.S.

Supreme Court Decision Making

Ryan C. Black1, Rachel A. Schutte1, and Timothy R. Johnson2

Abstract

Riker famously theorized that political actors faced with suboptimal outcomes might be able to garner a more

desirable one by adding issues to the agenda. To date, limited support for Riker’s theory of heresthetics exists,

primarily consisting of case studies and anecdotal evidence. We offer a systematic analysis of heresthetical maneuvers

in the context of Supreme Court decision making. We argue justices who oppose a potential case outcome may add

alternative issues to the record in an effort to restructure the terms of debate. Data from justices’ behavior during

oral argument support Riker’s theory.

Keywords

judicial politics, heresthetics, U.S. Supreme Court, oral arguments