Examining the Strategic Use of Judicial Philosophy in Supreme Court Opinions

• In Event: Reconsidering Justice Preferences and Goals on the US Supreme Court

Abstract

In recent years we have seen a broad increase in focus on judicial philosophy. Studies establish that judicial philosophy is important for presidents, interest groups, senators, and even the public. Surprisingly, however, we have little systematic empirical evidence about how justices incorporate judicial philosophies into their written opinions.

In this project, we measure variation in the use of legal principles and judicial philosophies at the opinion level for a large set of Supreme Court decisions. Using this novel dataset, we then analyze patterns in the use of judicial philosophy within justices, across justices, and over time. Most importantly, we test theories about the strategic importance of judicial philosophy to judicial decision-making.

We hypothesize that justices use judicial philosophies strategically to pursue their policy goals. Specifically, we consider how justices adjust their use of judicial philosophies and legal principles as a function of the composition of opinion coalitions, public opinion on the issues being decided, case salience, and the ideology of those implementing Court decisions.

Opinion content strongly shapes the direction of national policy, much more than the ideological direction of a decision. We argue that because elites, policy implementers, and the public pay attention to judicial philosophy—and because different groups have different preferences over which judicial philosophies and legal principles are implemented—justices use legal reasoning strategically to maximize their policy influence.

Authors

• Christopher Krewson, Brigham Young University

• Albert Rivero, University of Virginia

• Andrew R Stone, University of Mississippi