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Assessing the Applicability of Strategic Theory to Explain Decision Making on the Courts of AppealsThe focus of this analysis is whether a strategic perspective provides a useful approach that enhances an understanding of broad patterns of judicial decision making on the U.S. Courts of Appeals. We examine whether it is reasonable in the majority of cases for appeals court judges to modify their behavior when necessary to avoid reversal by the Supreme Court. Our assessment utilizes statistical analyses and interviews from 28 judges on the U.S. Courts of Appeals. Based on a three part argument we conclude that a strategic perspective is not helpful in understanding the decision calculus of appeals court judges.

While many studies have examined party capability theory, few have empirically examined the potential causal mechanisms underlying the theory. We do this by combining quantitative analyses with qualitative data drawn from interviews with over 60 US courts of appeals judges. We find that the “haves,” or repeat players, hire better lawyers and that these lawyers independently contribute to the success of the repeat players. We also find that the advantages of the haves extend to all parties, though to a lesser extent than the advantages enjoyed by the US government. These results remain robust after controlling for ideology.

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