Strategic Auditing and Summary Reversal in the Judicial Hierarchy

• In Event: Formal Models of Bureaucratic and Judicial Politics

Abstract

The U.S. Supreme Court gives "full review'' to 50 or 60 cases each term, which features full briefing by the parties, oral arguments, and lengthy opinions (often with concurrences and dissents); this
rocedure looms large in both the public and
cholarly conception of the Court. However, in many cases the court instead engages in "quick review'' by summarily reversing a lower court's decision without full briefing or oral arguments, often accompanied by a brief order or per curiam decision. This tool is part of the court's ``shadow docket,'' which has come under increased scrutiny in recent years. In this paper we develop a formal model
to examine the comparative benefits and costs of these procedures for ensuring lower court compliance. In our model, a higher court has two different options to review and potentially reverse a lower court: costly auditing or costless reversal. Perhaps unsurprisingly, a higher court's access to costless reversal can lead to increased compliance by lower courts. Counter-intuitively, however, we find that the ability to engage in summary reversal also sometimes harms the upper court. Specifically, when the higher court faces uncertainty with respect to lower court preferences, the threat of costless reversal can lead an allied reversal-averse lower court to ``pander'' by issuing an ``safe'' disposition even when the higher court itself would prefer the reverse given the revealed case facts, making the higher court worse off. Our analysis provides a theoretical foundation for concern about the growing use of the shadow docket, which has mainly been empirically focused to date.

Authors

• Alexander Victor Hirsch, California Institute of Technology

• John P. Kastellec, Princeton University

• Anthony Taboni, Princeton University