Strategic Citations to Precedent on the U.S. Supreme Court

Abstract

Common law evolves not only through the outcomes of cases but also through the reasoning and citations to precedent employed in judicial opinions. We focus on citations to precedent by the U.S. Supreme Court. We demonstrate how strategic interaction between justices during the Court's bargaining process affects citations to precedent in the Court's opinion. We find that the majority-opinion writer relies more heavily on precedent when the Court's decision is accompanied by separate opinions. We also show that diversity of opinion on the Court, a factor often overlooked, has a significant relationship with citations to precedent. Finally, our results indicate that the ideology of the median justice influences citation practices more than ideology of the majority-opinion writer.

Speaking Law to Power: The Strategic Use of Precedent of the Court of Justice of the European Union

“…Our study also contributes to the research on the functioning and development of case law for courts, and the role of outside audiences in that respect (Baum, 2006;Hansford & Spriggs, 2006;Lupu & Fowler, 2013). When courts cite precedents, they typically confirm, deny, broaden, or restrict the validity of previously established legal principles.…”

“…We assume that citing precedent is to some degree costly, in terms of time and resources (Lupu & Fowler, 2013;Lupu & Voeten, 2012;Voeten, 2012). Judges and clerks must engage in research into which cases that are relevant to cite, and make sure that citations are appropriately discussed, to avoid criticism for inaccurate citation, or for leaving out important precedent.…”

“…References to precedent in judicial decisions, however, which is an important form of legal justification, have been presumed to be directed toward internal (Lupu & Fowler, 2013) or external (Lupu & Voeten, 2012) judicial audiences only. According to Lupu and Voeten (2012), "political actors are unlikely to be persuaded by legal justifications" (p. 413).…”

“…So far, studies of strategic court rhetoric directed at a political audience include everything but legal justifications: courts using non-binding rhetorical sources (Hume, 2006), affect-laden words (Busch & Pelc, 2014), obfuscating language (Owens et al, 2013), and regular media and public relations campaigns (Staton, 2010). References to precedent in judicial decisions, however, which is an important form of legal justification, have been presumed to be directed toward internal (Lupu & Fowler, 2013) or external (Lupu & Voeten, 2012) judicial audiences only. According to Lupu and Voeten (2012), "political actors are unlikely to be persuaded by legal justifications" (p. 413).…”

The Politics of Citations at the ECJ—Policy Preferences of E.U. Member State Governments and the Citation Behavior of Judges at the European Court of Justice

“…Among these topics are investigations into the importance of extra-legal determinants of legal decision making and, particularly, into the importance of the political background of judges (Choi & Gulati 2008a;Choi et al 2011;Cross 2012;Cross et al 2010;Hansford & Spriggs 2006;Niblett & Yoon 2015). Studies in this field have increasingly adopted network analysis techniques developed in other disciplines (Fowler et al 2007;Lupu & Fowler 2013). They are not limited to U.S. courts either.…”