Strategic Voting for Damage Control On the Supreme Court

Abstract

Prominent scholars argue that the Supreme Court justices vote insincerely and in favor of the majority at the conference vote in order to obtain either damage control over the content of the majority opinion or to conform to the majority. Those justices who cast their vote late in the order of voting at the conference are in a better position to behave this way because they are more likely to know which side will win. Using Spaeth’s Burger Court dataset we examine whether there is a statistical association between the order of voting of the justices and the extent to which they joined the winning coalition at the conference vote. We find little evidence of such an association using either bivariate or multivariate techniques and conclude that such behavior is exceedingly rare.