Mitu Gulati

Trading Votes For Reasoning: Covering In Judicial Opinions

CO-AUTHORS Stephen J. Choi
PUBLISHER
Southern California Law Review
DATE
2008
 

Abstract

Several studies report that judges on panels together with at least one judge of a different political party (a "mixed panel") tend to moderate their votes, particularly on politically charged subject matter cases. We examine whether this observed moderation in voting is the product of bargaining among mixed panel judges, where authoring judges, who might otherwise face a dissenting vote (or find themselves in dissent), trade their votes for the ability to craft a unanimous majority opinion closer to their own policy preferences and thereby affect the opinion's precedential value. Using judicial citation patterns within individual opinions as a proxy for how judges reason, we report that authoring judges on mixed panels are more likely to employ partisan reasoning for opinions relating to salient subject matter areas. Partisan reasoning in top salient areas is higher where the authoring judges have more bargaining leverage over opposite party judges on the same panel. Finally, partisanship in top salient areas is greater for authoring judges who have greater skill at writing influential opinions. The overall pattern is consistent with judges engaging in covering: moderating their voting when associated with an opposite party judge on the same panel, a highly visible activity, but adjusting the judicial reasoning in the opinion to tilt the decision back toward the authoring judge's own preferred ideological position, a less visible activity done under the cover of the more visible, moderated vote. 

 

 

 

Citation

Stephen J. Choi & G. Mitu Gulati, Trading Votes For Reasoning: Covering In Judicial Opinions, 81 Southern California Law Review 735-779 (2008).
 

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