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Simple Ideology: Do I Want to Overturn This Decision?

A judge, however, may not simply want to spot important appeals but to target cases she cares about. She may want to pursue certain appeals in order to satisfy her personal view on particular issues. A liberal judge may, for example, vote to grant a hearing in an appeal because she wants to overturn a lower court decision limiting a union’s right to strike, regardless of whether there are any other cues about the appeal’s importance. Ulmer argues there may be little difference between the review by a court of whether to hear an appeal on the merits and the review on the merits, as judges essentially decide at the petition stage how they would ultimately dispose of the case.[1] This theory is variously called “simple ideological voting” or “error correction”: a judge decides whether the court should hear an appeal on its merits based on her preferences as to whether it is appropriate to “correct” the lower court’s ruling.[2] As an example of simple ideological voting, Justices Brennan and Marshall of the US Supreme Court often used “stock” dissents from refusals to grant certiorari in capital punishment cases: “Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment . . . we would grant certiorari and vacate the death sentences in these cases"[3] A judge who agrees with and wishes to affirm a lower court ruling would, on the “simple ideological voting” view, have less incentive to vote for the court to hear the appeal as this risks the overturning of a lower court ruling he finds favorable. [4] This view therefore leads to the following hypothesis:

H4: A judge who votes in favor of granting leave will be more likely to vote to

overturn the lower court’s decision during a hearing on the merits.

High courts overturn lower court decisions at very different rates. In the United States, for example, the Supreme Court has recently tended to reverse about 7 out of every 10 cases it hears.[5] In stark contrast, the Supreme Court of Canada in recent years has tended to affirm more lower court rulings than it has reversed, although in 2013 it affirmed the same number as it reversed.[6] The first five years of the UK Supreme Court has seen the Court affirm a little under half of the appeals it heard.[7] The question is, however, whether judges on a particular court are more likely to agree to hear an appeal when they want to reverse a lower court decision, even taking account of these different overall reversal rates.

The clearest evidence of judges agreeing to hear an appeal in order to reverse it comes from the US Supreme Court. For example, in the 1950, 1952, 1963, 1965,

1967, 1972, and 1974 terms, US Supreme Court justices who voted to reverse on the merits had voted to agree to hear the appeal over three-quarters of the time, whereas justices who wished to affirm the decision had voted to hear the appeal only about 60 percent of the time.[8] Boucher and Segal found that the error correction hypothesis was correct for the 1946-1952 period (the Vinson Court), concluding that, for most justices, “... the simple desire to reverse a lower court decision is a crucial factor in whether they will vote to grant cer- tiorari.”[9] Further, because the Court has been fairly conservative, judges on the Court have been more likely to agree to hear an appeal if the lower court produced a liberal decision than if it was a conservative decision.[10]

Not all cert petitions make for difficult decisions: a small number are very obvious candidates for review, whereas a very large number should clearly be denied. Epstein, Martin, and Segal argue that only in cases with neither strong pulls to grant or deny would the justices’ preferences about the lower court’s decision come into play.[11] Only for this third category of cases—that are neither cases that should clearly be heard nor clearly ones that should not be heard—did they find liberal justices were more likely to agree to hear conservative lower court decisions, and vice versa. The differences are stark. If the court below reached a liberal decision, a very conservative judge was likely to agree to hear the appeal almost 70 percent of the time whereas an extreme liberal would do so less than 60 percent of the time. It is even clearer with conservative lower court decisions, with the conservative judge being over 20 percent less likely to agree to hear the appeal than the liberal judge.[12]

Justices on the Supreme Court of Canada also appear more likely to agree to hear an appeal if they want to overturn it, although not to the same extent as in the United States. Recall that panels of three justices decide whether the Court will hear an appeal in Canada. We looked for whether justices on a panel that decided whether or not to hear an appeal voted to reverse more frequently than justices who were not on the panel. Taking into account both whether the lower court decision could be termed liberal or conservative and the ideology of the justices, justices who were not on the leave- to-appeal panel voted to reverse the lower court decision about half the time.[13] A justice on the leave panel, on the other hand, was more likely to reverse the appeal on the merits than a justice not on the leave panel, but the difference was small—the justice on the leave panel was about 3 percent more likely to reverse the lower court decision.[14]

Given that there are three justices on the leave-to-appeal panels, we can also look to see if justices on the leave panel vote on the merits differently depending on their personal preferences. We could imagine, for example, that if two justices on the panel were conservatives and the third liberal, that the conservative judges were more likely to reverse an appeal the panel voted to hear on the merits than the third (liberal) judge—their desire to hear a case to overturn it would overcome the reluctance by the liberal judge. This difference does in fact exist, but again the difference is small. When a judge is on the leave panel, and in the majority in terms of policy preferences for that panel (that is, one of either two conservative judges or two liberal judges on the panel), she is about 2.5 percent more likely to reverse the lower court decision than a justice who was not on the leave panel. Conversely, when the justice on the leave-to-appeal panel is in the minority on the panel (that is, the only liberal judge or only conservative judge), he is about 5 percent less likely to reverse the decision of the lower court. Judges in the majority on the leave panel are therefore more likely to agree to hear the appeal in order to reverse it, whereas a judge who is isolated ideologically on the panel does not appear to share that desire to reverse the lower court decision.[15]

Judges, at least on the uS Supreme Court, tend to look not only at whether they agreed with the lower court decision but also at who sat on the lower court. Judges are more likely to agree to hear decisions that they disagree with if the decisions are from a court whose judges are ideologically different than from one whose judges are ideologically similar to themselves. For example, a conservative Supreme Court justice is more likely to agree to hear an appeal from a liberal decision of a court whose judges are liberal than from a liberal decision by conservative judges. Judges, therefore, appear to pay attention both to the decision and to the judges who made it.[16]

Another way to test this simple ideological or error correction view is to see if judges act differently when hearing appeals that the court has no choice but hear (that is, the appellant has a right to be heard) as opposed to when they have granted leave to appeal. A judge may be no more or less likely to overturn a criminal case he was obliged to hear, but if he has voluntarily chosen to hear it he may be more likely to overturn it. For example, in 2006-2007 the Israeli Supreme Court overturned 25 percent of mandatory criminal appeals (appeals they had to hear) but 45 percent of discretionary criminal cases (cases they could choose to hear or not).[17] Canada had a similar pattern, though a higher affirmation. The Supreme Court of Canada affirmed a little over 60 percent of appeals that it had to hear (appeals as of right) as opposed to affirming just 53 percent of appeals overall and 55 percent of criminal cases for which they granted leave to appeal.[18] If judges do choose appeals in order to correct errors, courts with greater docket control should have higher reversal rates than those that permit appeals as of right.

Overall, the evidence for the error correction hypothesis is stronger in the United States than in Canada. In the United States justices who vote to hear an appeal are more likely to vote to overturn the lower court ruling at the merits stage. Liberal justices are more likely to review decisions coming from conservative lower courts, and to tolerate conservative decisions rendered by liberal lower courts, and vice versa for conservative justices. This tendency to agree to hear decisions that they eventually overturn also exists in Canada, but the effect is much smaller. As we will discuss in the next section, the difference may in part arise because of differences in how the courts decide which cases to hear.[19]

  • [1] S. Sidney Ulmer, “The Decision to Grant Certiorari as Indicator to Decision ‘On the Merits’”(1972) 4:4 Polity 4 429-447 [Ulmer, “Grant Certiorari”].
  • [2] Saul Brenner, “Rational Choice and Supreme Court Decision Making: A Review Essay”(1998) 26:2 Southeastern Political Review 361 at 370 (argues that “[v]irtually all Supreme Courtscholars maintain that the justices on the Court generally vote in accord with the error-correcting strategy”).
  • [3] Michael Mello, “Adhering to our Views: Brennan and Marshall and the Relentless Dissentto Death as a Punishment” (1995) 22:3 Florida State University Law Review 591 at 693.
  • [4] Songer argues that the persuasive force of cue theory comes from its recognition thatjudges lack the resources to thoroughly review each petition they receive, and must rely onlow-cost informational cues to make their initial assessments. Donald Songer, “Concern forPolicy Outputs as a Cue for Supreme Court Decisions” (1971) 41:4 Journal of Politics 1185 at 1186.Further, Black and Owens found that US Supreme Court justices vote to hear appeals basedboth on the policy direction of the decision itself and on whether the lower court judges hadsimilar policy preferences to themselves (that is, if a majority of the justices of the SupremeCourt are conservative, they are more likely to review decisions by liberal lower courts, and viceversa): See e.g. Ryan Black & Ryan Owens, “Consider the Source (and the Message): SupremeCourt Justices and Strategic Audits of Lower Court Decisions” (2012) 65:2 Political ResearchQuarterly 385 [Black & Owens, “Consider the Source”].
  • [5] In the 2014-2015 term the US Supreme Court reversed 72 percent of lower court decisions.See Kedar Bhatia, “Final Stat Pack for October Term 2014: Merits Cases by Vote Split” (June 30,2015) SCOTUSblog (blog), online: at 3-4.
  • [6] “Category 4: Appeal Judgements”, Supreme Court of Canada Statistics from 2005 to 2015,online:
  • [7] UK, HC, The Supreme Court Annual Reports (various years) (we used the number of appealsaffirmed divided by the number of judgments per year).
  • [8] Saul Brenner & John F. Krol, “Strategies in Certiorari Voting on the United States SupremeCourt” (1989) 51:4 Journal of Politics 828 at 833 [Brenner & Krol].
  • [9] Robert Boucher & Jeffrey Segal, “Supreme Court Justices as Strategic DecisionMakers: Aggressive Grants and Defensive Denials on the Vinson Court” (1995) 57:3 Journal ofPolitics 824 at 835 [Boucher & Segal]. See also Ulmer, “Grant Certiorari,” supra note 70 at 440(finding for 8 of the 11 justices on the Vinson Court (1947-1956) there was a statistically significant relationship between the vote for certiorari and the vote to reverse the decision of thelower court on the merits); Jan Palmer, “An Econometric Analysis of the U.S. Supreme Court’sCertiorari Decisions” (1982) 39:3 Public Choice 387 at 396 [Palmer] (examining successful petitions from 1947 to 1956 and finding a positive relationship between voting to grant certiorariand voting to reverse the lower court’s decision).
  • [10] Epstein et al., “Must Grants,” supra note 22 at 13.
  • [11] Epstein et al., “Must Grants,” supra note 22 at 4.
  • [12] Epstein et al., “Must Grants,” supra note 22 at 18.
  • [13] Alarie & Green, “Docket Control,” supra note 9 at 14-15, 18 (these results were consistentwhether the judges’ ideology was measured by the party of the prime minister who appointedthem, their lifetime liberal voting average, or their lifetime ideal point measures).
  • [14] Alarie & Green, “Docket Control,” supra note 9 at 18.
  • [15] Alarie & Green, “Docket Control,” supra note 9 at 19.
  • [16] Black & Owens, “Consider the Source,” supra note 73 at 390. Black and Owens found largedifferences—the probability that a conservative Supreme Court justice, for example, would voteto hear an appeal of a liberal decision fell from 21 percent if the decision was by a liberal lowercourt to 6 percent if it was a conservative lower court.
  • [17] Eisenberg et al., “Empirical Study”’ supra note 534 at 713-714.
  • [18] These figures are derived from an analysis conducted by the authors of the judgments of theSupreme Court of Canada from 1958 to 2011.
  • [19] Flemming & Krutz, “Selecting Appeals,” supra note 42 at 246, n. 16 argue that the SupremeCourt of Canada is primarily influenced more by jurisprudential factors in deciding whether tohear a case than by party status, judicial preferences, or strategic concerns, in part because theCourt hears appeals in panels of differing sizes and compositions, making it difficult to predicthow the full Court will decide any appeal on the merits.
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