Bargaining on the U.S. Supreme Court: Justices' Responses to Majority Opinion Drafts

Abstract

Supreme Court opinions contain legal rules with broad policy ramifications, and justices try to shape the substance of the Court's opinions. Despite this expectation, scholars have neither systematically measured nor explained the extent to which justices attempt to affect majority opinions. We articulate and test a model that explains how justices respond to majority opinion drafts. Our argument is that justices decide how to respond based on the effect a choice will have on securing their policy goals. The costs or benefits of a choice, moreover, are a function of strategic and contextual factors, including a justice's agreement with an opinion, the collaborative decision-making setting on the Court, case characteristics, and attributes of the justices. Our data analysis strongly supports our argument showing that, among other considerations, justices' responses result from their disagreement with an opinion, the author's prior level of cooperation with them, and the salience of a case.

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