USC Price discussion targets strategic judicial preference

Knowledge in Action:

USC Price Discussion Targets Strategic Judicial Preference

By Matthew Kredell

Tonja Jacobi Northwestern professor Tonja Jacobi discusses strategic judicial preference at a USC Price Governance Salon.
Photo by Deirdre Flanagan

U.S. Supreme Court justices may vote strategically to conceal their true ideology in order to influence the future makeup of the court, Northwestern law professor Tonja Jacobi explained during a Nov. 8 discussion as part of the USC Price Governance Salon series.

The Governance Salons — sponsored by the USC Price School of Public Policy and the Judith and John Bedrosian Center on Governance and the Public Enterprise — provide an opportunity for the school’s faculty and students to meet and engage with top researchers in the areas of effective government and public management.

Jacobi presented her theory of strategic judicial preference as research she conducted with Alvaro Bustos, a professor in the School of Management at Pontificia Universidad Católica de Chile.

It is well recognized, according to Jacobi, that justices have an incentive to be vague during their confirmation hearings. However, existing accounts of Supreme Court behavior assume that once confirmed with life tenure, judicial incentives change and justices immediately show their true colors.

Jacobi contended that justices have an incentive to exercise some restraint, at least at first, to affect future nominations. By changing the impressions of the median ideology of the court, they might be able to change what appointees the president and U.S. Senate can agree upon.

“If judges are rational, strategic and care about future cases, as well as current cases, it makes sense that there is incentive to vote strategically in early cases so as to shape the court for later cases,” Jacobi said.

There is evidence of justices changing their preferences over time. Jacobi cited as examples Harold Blackman, who became more liberal in his 24 years of service from 1970 to 1994, and current longest-serving Justice Antonin Scalia, who has become more conservative since being appointed by President Ronald Reagan in 1986.

Previous academic articles have presented the freshman effect and judicial drift as explanations for this fluctuation. The freshman effect proposes that newly appointed justices initially try to fit in and rely on the opinions of others on the court. Judicial drift suggests that, for various reasons, a justice’s beliefs may change over time.

“Do you really think justices appointed in middle age, mostly after having been judges for a number of years, that they don’t know their actual preferences until they get to the Supreme Court?” Jacobi asked.

Jacobi explored what motivation justices might have for not revealing their true preferences. By understating or overstating their ideologies — depending on their own ideological position, the political composition of the Senate, the president and the existing median — extremist justices can increase the likelihood of bringing in other justices more like themselves. Moderate justices can exercise this strategy as well but to a lesser extent.

Over time, as the value of shaping the court decreases and they want to make their own mark, justices will reveal their true identity.

“If there’s one takeaway from this paper, it’s that we can trust later behavior more than we can trust earlier behavior because obviously that incentive dissipates over time,” Jacobi said.

Motivation to misrepresent ideologies peaks when it appears a justice may be retiring soon. With four justices age 74 or older, we are currently in one of those periods.

“Supreme Court appointees are all over the news and have this great impact on American policy,” said Owen Rafael Serra, a first-year MPA student who attended the discussion. “It was interesting the way Professor Jacobi statistically looked at how liberal and conservative justices have been and how their preferences changed over time.”