THE ROLE OF THE LEGAL STATUS QUO IN SUPREME COURT DECISION-MAKING

Thomas H. Hammond Forrest Maltzman Department of Political Science Department of Political Science 303 South Kedzie Hall 440 Monroe Hall Michigan State University George Washington University East Lansing, MI 48824rtment 2115 G Street, NW thammond@msu.edu Washington DC 20052 forrest@gwu.edu

ABSTRACT

In previous work, we proposed (Hammond, Bonneau, and Sheehan 2005) and tested (Bonneau,

Hammond, Maltzman, and Wahlbeck 2007) a formal model of decision-making by the United States

Supreme Court. A key assumption of this model was that for every legal case there exists a “current legal

status quo” which is a key point of reference for the justices as they make decisions in each of the stages

of the Court’s decision-making process. For example, regarding the final two stages involving opinion-

writing and coalition formation and then the final vote, it was assumed that each justice evaluates a draft

majority opinion in terms of whether it is an improvement over the current legal status quo: if the draft

opinion is at least as good as the current legal status quo for the justice, the justice will support the

opinion; if the draft opinion is worse than the current legal status quo for the justice, the justice will not

support the opinion. However, this assumption about the role of the current legal status quo has turned

out to be controversial: some students of judicial politics consider the assumption to be unwarranted or

unrelated to what justices actually think about during the Court’s decision-making process. This paper

builds on our previous work to further advance our argument that the legal status quo is a critical aspect

of Supreme Court decision-making.

AUGUST 24, 2009

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I. Introduction to the Legal Status Quo

Political scientists have been studying the decision-making process of the United States Supreme Court

for many decades, and have developed and tested a variety of approaches and perspectives to help explain

why the justices behave the way they do. We have been involved in one such enterprise. In Strategic

Behavior and Policy Choice on the U.S. Supreme Court, Hammond, Bonneau, and Sheehan (2005) –

“HBS” – advanced a comprehensive formal model of how strategically-rational Supreme Court justices

should be expected to behave in each of the five stages where decisions are made: certiorari, the confer-

ence vote, opinion assignment, opinion writing and coalition formation, and the final vote.

Three different versions of the HBS model were developed. The “agenda-control” model was based

on the Romer-Rosenthal (1978) model of decision-making by a strategic agenda-setter facing an elector-

ate that cannot amend the agenda-setters’ proposal; when the majority opinion is being considered on the

Supreme Court, the majority opinion author is assumed to be the agenda-setter. The second and third

models were based on the Black (1948) and Downs (1957) “median voter” model. In the “open-bidding”

model it is assumed that the majority opinion author competes with an opposing justice or team of justices

for the support of the median justice; because she is the “swing” justice, her support is essential for a

Court majority. The ultimate result of this bidding process is that the final majority opinion will converge

on the median justice’s most-preferred policy. In the “median-holdout” model it was assumed that the

median justice on the Court simply refuses to support any draft majority opinion that does not embody her

most-preferred policy; since her support is essential for a draft opinion to have majority support (see HBS

2005: ch.6 and Hammond 2009 for details), the opinion author must give her what she demands, with the

consequence that the final majority opinion will again contain her most-preferred policy. Because the

second and third models both produce opinions containing the median justice’s most preferred policy, we

have referred to them collectively as the “bench-median” model.

Subsequently, Bonneau, Hammond, Maltzman, and Wahlbeck (2007) tested the agenda-control and

bench-median models with data from the Burger Court (1969-1986). While substantial evidence for both

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models was found, the agenda-control model had more support. This finding was consistent with strate-

gic accounts of the opinion-writing and coalition-formation process, with the Chief Justice making strate-

gic opinion assignments and the opinion author strategically determining when to respond to suggestions

from members of the Court (Maltzman, Spriggs, and Wahlbeck 2000). The relatively successful predic-

tions of how the justices should have been expected to vote on the Burger Court cases thus suggested to

us that the HBS agenda-control model should be considered a good candidate for inclusion in a list of

plausible explanations of the Supreme Court’s decision-making process.

Every theory or model, whether formal or informal, is necessarily based on a variety of assumptions,

and our focus here is on an assumption that is fundamental to the HBS models. The assumption has two

parts. First, for every legal case there exists a “current legal status quo” – the most current state of the

law and legal process regarding the legal case – that would remain in effect if the Court does not accept

the case for review. Second, this current legal status quo is a key point of reference for the justices

throughout all five stages of the Court’s decision-making process. In particular, for the last two stages

involving opinion writing and coalition formation and then the final vote, it is assumed that each justice

evaluates a draft majority opinion in terms of whether it is an improvement over the current legal status

quo: if the justice considers the draft opinion to be better than, or at least as good as, the current legal

status quo, the justice will support the opinion, but if the justice considers the draft opinion to be worse

than the current legal status quo, the justice will not support the opinion.

We consider this assumption about the existence and role of the current legal status quo to be stan-

dard and unexceptional, and we believe that it is essential to an understanding the Court’s decision-

making process. But while we are by no means alone in our views on this matter, this assumption about

the current legal status quo has turned out to be controversial: to our surprise, some students of Supreme

Court decision-making consider the assumption to be unwarranted and unrelated to what justices actually

think about when a majority opinion is being written. This paper builds on our previous work to further

develop our argument that the current legal status quo must be considered an integral element of any de-

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scription or explanation of how the justices behave in the Court’s decision-making process.

We should acknowledge that HBS (2005) and Bonneau et al. (2007) were not as clear as they might

have been about the nature of the legal status quo, or about the reasons why the legal status quo is such an

important aspect of Supreme Court decision-making. Hence, a major purpose of this paper is to extend

and clarify a variety of important issues involving the current legal status quo and its role in the Court’s

decision-making process.

In part II we distinguish the “current legal status quo” from what we will call the “prior legal state of

affairs.” Part III describes a variety of reasons why the current legal status quo plays a critical role in ju-

dicial decision-making. To illustrate how the current legal status quo affects the Court’s decision-making

process, part IV describes its role in the HBS agenda-control and median-holdout models. Part V then

examines and evaluates some of the criticisms that have been directed at the role we think the current le-

gal status quo plays in Supreme Court decision-making. Part VI concludes by considering the difficulties

faced by models that do not include the current legal status quo.

II. The “Prior Legal State of Affairs” and the “Cu rrent Legal Status Quo”

To understand the nature of the choices that the justices face, we must first distinguish the “current legal

status quo” from the “prior legal state of affairs.”

Before any lawsuit is filed on some legal issue in the federal courts, there will always be what we

will call the “prior legal state of affairs” in the country on this legal issue. The key factor is what has

been considered legal in the country prior to the initiation of the lawsuit.

This prior legal state of affairs could have been established in a wide variety of ways. One possible

prior legal state of affairs involves whatever was defined as legal by previous Supreme Court rulings. For

example, prior to Brown v. Board of Education (1954), the prior legal state of affairs was based largely on

the “separate but equal” doctrine established by Plessy v. Ferguson (1896). For other cases, the prior le-

gal state of affairs might involve a federal statute or agency regulation that has never been considered by

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the Supreme Court; prior to the initiation of a federal court case on this statute or regulation, the prior le-

gal state of affairs is simply whatever is specified by the statute or regulation. Another possible prior le-

gal state of affairs might involve whatever was defined as legal in a state by previous state supreme court

rulings (for cases arising within the state court system), in the absence of previous U.S. Supreme Court

rulings or federal laws to the contrary. Or the prior legal state of affairs might involve whatever was de-

fined as legal by state laws (for cases arising within any one state), in the absence of previous U.S. Su-

preme Court rulings, federal laws, or state supreme court rulings to the contrary.

Yet another possible prior legal state of affairs is that for some public or private activity there is no

statute or constitutional provision that clearly governs the activity, and when this holds, the general pre-

sumption in the United States is that such an activity is permissible. A new legal case involving this ac-

tivity might then focus on whether there is any legal rationale for restricting the activity in some way. An

example here involves what might be called “the law of the Internet,” though this label is a bit misleading

since there is relatively little in federal law or federal court doctrine that can be highlighted as “the law of

the Internet.”

In general, though, no matter what the origins of the prior legal state of affairs for a case, the basic

point is that prior to the initiation of a federal court case on a legal issue involving some public or private

activity within the country, there are one or more constitutional provisions (whether federal or state), or

one or more laws (whether federal or state), that have previously been interpreted as governing or allow-

ing the activity.

Many lawsuits filed in the federal courts will involve a challenge to some aspect of this prior legal

state of affairs. When an appellate court has issued a ruling on such a case, this ruling produces what we

call the “current legal status quo” for the Supreme Court. If the appellate court has issued a ruling that

upholds the prior legal state of affairs, or two or more appellate courts have issued rulings that uphold the

prior legal state of affairs, the current legal status quo for the Court here will be equivalent to the prior

legal state of affairs. If the Court accepts the case for review, the choice facing the justices is whether to

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allow this current legal status quo – which is the unchanged prior legal state of affairs here – to remain in

effect. But if one or more appeals courts have issued rulings that upset the prior legal state of affairs in

some manner, the prior legal state of affairs will have been modified and the current legal status quo for

the Court will now exhibit a more complex pattern: (a) the new rulings will now hold in the circuit or cir-

cuits of the appeals courts that issued the new rulings, and (b) the prior legal state of affairs will continue

to hold in the rest of the country. Hence, the current legal status quo that the Court faces here will consist

of what might be called a “mixed” or “composite” pattern of what is currently considered legal in differ-

ent parts of the country.1

To summarize, the “prior legal state of affairs” for the Supreme Court involves what is considered

legal in the country prior to the initiation of a federal court case. The “current legal status quo” for the

Court involves the rulings that have been made by some previous appellate court or courts; some appel-

lant has appealed this ruling to the Supreme Court and the justices are thinking about accepting the case

or cases for review. The prior legal state of affairs and the current legal status quo will be identical if the

appellate courts have issued rulings that do not challenge the prior legal state of affairs in any way, while

the prior legal state of affairs and the current legal status quo will be different if one or more appellate

courts have issued rulings that change the prior legal state of affairs in some way. Whether it is the same

as or different from the prior legal state of affairs, the current legal status quo represents the current state

of the law and legal process that some justices may be trying to change and that other justices may be try-

ing to maintain in the face of this challenge.

To illustrate, some prior decision by the Court might constitute a clear and unequivocal precedent for

the Court and for the rest of the country (the precedent would thus be the prior legal state of affairs), and

an appeals court might have upheld this precedent, but an appellant is now challenging the appeals court

ruling that upheld the precedent. The current legal status quo here would simply be the old precedent

1 However, if it is the Washington, D.C. Circuit Court of Appeals that has issued the ruling (e.g., regarding the au-thority of some federal regulatory agency), there will not be a mixed pattern of different rulings holding in different circuits; instead, this Appeals Court ruling would cover the entire country. Thus, when the Supreme Court accepts a case on appeal from the Washington, D.C. Circuit Court of Appeals, the current legal status quo will simply be the Circuit Court ruling.

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(i.e., the prior legal state of affairs). For example:

• Due to Baker v. Carr, the prior legal state of affairs for Reynolds v. Sims was that malapportionment of legislative districts was considered legally suspect. When the federal court case was initiated, the Middle District Court of Alabama responded by issuing a ruling striking down the two plans the Alabama legislature wanted to employ for defining state legislative districts on a geographic basis rather than on the basis of population. The ruling of the U.S. District Court upheld the prior legal state of affairs. While the U.S. Court of Appeals refused to issue an immediate injunction preventing an election that was inconsistent with the equal protection clause that precluded malapportionment, the Court of Appeals, like the District Court, recognized the problematic nature of the Alabama for-mula. Thus, for the justices involved in the Reynolds v. Sims case, the current legal status quo was also the prior legal state of affairs.

In contrast, the Supreme Court may have previously articulated a precedent but an appellate court

may have rejected it or modified it in some way. However, this ruling would hold just in the appellate

court’s own circuit and the prior legal state of affairs would continue to hold in the rest of the country.

The Supreme Court might then reject the appeals court ruling and reinstate for the entire country what

was, in effect, the prior legal state of affairs. For example:

• In Miranda v. Arizona (1966) the Court required that suspects be given what came to be called their “Miranda rights” prior to interrogation. Although the Court had consistently thereafter required that suspects be read their Miranda rights, the 4th Circuit ruled in Dickerson v. U.S. (2000) that a 1968 law was constitutional when it stated that failure to be read one’s rights did not necessarily mean a statement was involuntary. Thus, a composite pattern of rulings held: the 4th Circuit ruling in its own circuit and the Miranda doctrine in the rest of the country. But the Court’s decision in Dickerson overturned the 4th Circuit’s ruling and restored the prior legal state of affairs.2

If the Court refuses to hear one or more appellate court cases that overturn a previous Court ruling in

various circuits, a mixed pattern would then persist as the prior legal state of affairs in the country. If the

Supreme Court does later agree to hear the cases, this mixed pattern – e.g., a new policy in one circuit, a

different new policy in a second circuit, and the prior legal state of affairs in the remaining circuits – will

comprise the current legal status quo for the justices in the Court’s decision-making process. If the Court

then adopts some new policy in place of this composite pattern, this new policy would become the new

legal state of affairs for the entire country (that is, not just for one circuit). For example:

• Starting with the Hopwood v. Texas decision by the Fifth Circuit in 1996, several different circuits issued different rulings regarding university affirmative action programs which were based, in many cases on Regents of the University of California v. Bakke, 438 U.S. 265 (1978): see Hopwood v.

2 For more details on the Dickerson case, see HBS (2005: 256-257).

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Texas, 78 F.3d 932 (5th Cir.), cert. denied, 518 U.S. 1033 (1996); Johnson v. Board of Regents of the University of Georgia, 263 F.3d 1234 (11th Cir. 2001); Smith v. University of Washington Law School, 233 F.3d 1188 (9th Cir. 2000), cert. denied, 532 U.S. 1051 (2001); and the lower Court opin-ions in Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002); and Gratz v. Bollinger, 135 F. Supp. 2d 790 (E.D. Mich. 2001). It was not until the Supreme Court’s decisions in Gratz v. Bollinger and Grutter v. Bollinger in 2003 that these conflicts among the circuits were resolved. So during these seven years, from 1996 to 2003, the current legal status quo was a composite that was characterized by several different kinds of affirmative action policies that were in effect in several different regions of the country.

Some cases may involve an interpretation of a statute or agency regulation that has never been con-

sidered by the Supreme Court, so the current legal status quo for the Court might become a composite of

the appellate court’s decision in its own circuit regarding the meaning of the statute or regulation in ques-

tion, and the previous generally accepted interpretation of the statute or regulation (i.e., the prior legal

state of affairs) in the rest of the country. For example:

• The Equal Employment Opportunity Commission (EEOC) had maintained a regulation declaring that it was permissible for an employer to require that a worker’s disability on the job not pose a “di-rect threat” to his health. The 9th Circuit ruled that this EEOC interpretation of the Americans with Disabilities Act (ADA) did not provide workers with the broad protections to which they were statu-torily entitled by the ADA. This ruling thus became part of a composite current legal status quo for the Court: the appeals court ruling held in the 9th Circuit and the original EEOC ruling held in the rest of the country. But in Chevron v. Echazabal (2002) the Supreme Court overturned this 9th Cir-cuit ruling and restored the prior legal state of affairs, that is, what the EEOC had originally tried to establish via its regulation.

Every legal case of interest to us here will thus involve some current legal status quo that is being

challenged, and the Supreme Court can either uphold this current legal status quo or replace it with some

alternative policy. If the current legal status quo is the same as the prior legal state of affairs, it is reason-

able to think that some justice might have this current legal status quo as his or her most-preferred policy,

and so the justice’s objective would be to maintain it. But if the current legal status quo is not the same as

the prior legal state of affairs, this usually means that the current legal status quo is a composite: there will

usually be one or more appellate court rulings that hold in these appellate court districts, and the prior le-

gal state of affairs holds in the rest of the country.3 It seems unlikely that a justice would have such a

composite of different policies as his most-preferred policy; instead, we expect that most justices would

3 As previously noted, however, if it is the Washington, D.C. Circuit Court of Appeals that has issued the ruling, this ruling will generally apply to the entire country, hence the current legal status quo will not be a composite.

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prefer to modify this composite legal status quo in some fashion. And of course, if the current legal status

quo is not a justice’s most preferred-policy, the justice’s goal will be to replace this current legal status

quo with a policy that is closer to his or her most-preferred policy.4 Nonetheless, even though few jus-

tices are likely to have a composite current legal status quo as his or her ideal point, it is easy for each

justice to envision legal policies that are even worse than this current legal status quo, which means that

each justice might on occasion behave in a way that maintains this composite current legal status quo

simply in order to prevent an even worse policy from being adopted.

Given these definitions and descriptions of the “prior legal state of affairs” and the “current legal

status quo,” there are two key questions. First, why would a justice take the current legal status quo into

account when he or she makes a decision? And second, precisely how might this current legal status quo

be taken into account by the justice? The first question is addressed in part III. The second question is

addressed in part IV.

III. Why W ould a Justice Consider the “Current Legal Status Quo” When Making Decisions?

We believe that when justices confront the legal issue in a case, they are aware of, or become aware of,

the prior legal state of affairs and the current legal status quo regarding this legal issue. They have, or

develop, preferences over alternative policies, and because the prior legal state of affairs and the current

legal status quo are themselves alternative policies, it generally follows that each justice has, or develops,

preferences over the prior legal state of affairs and the current legal status quo relative to the other alterna-

tive policies. Because the current legal status quo is what the justices must confront when they receive a

request for review of a lower-court ruling, a justice will necessarily consider whether there exist any pos-

sible policies that are better than this legal status quo. If there exist policies that the justice considers bet-

ter than the current legal status quo, he will try to get the Court to adopt what he considers to be the best

of these alternative policies, but if the justice thinks that there are no policies that are better than this cur-

4 Perry (1991) makes clear, though, that it may take several years, as with the Court’s affirmative action rulings in Gratz v. Bollinger and Grutter v. Bollinger, before enough justices find just the right case, on jurisprudential grounds, to accept for review in order to replace the current legal status quo with what they think is a better policy.

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rent legal status quo, he will at least try to maintain it and prevent policy from becoming worse.

This view of justices as policy maximizers is widely shared (though not universally – see, e.g., Baum

2006) by students of judicial politics and the Supreme Court. It is inherent in what is sometimes called

the “strategic model” (see Epstein and Knight 1998; Maltzman, Spriggs, and Wahlbeck 2000) as well as

in what is probably the most widespread interpretation of the “attitudinal model” (see Segal and Spaeth

2002). Hence, it should be obvious, in our view, that the location of the current legal status quo structures

every justice’s decisions regarding what case to accept, to whom the opinion should be assigned, what

opinion to write, and what opinion to endorse or reject.

Given this perspective of justices as policy maximizers, let us probe more deeply into the role that

the current legal status quo is likely to play in the Court’s decision-making process. Here we discuss

seven inter-related rationales for including the current legal status quo in our understanding of Supreme

Court decision-making; in our conclusion in part VI we introduce discuss an eight and final rationale.

The first rationale is simply that, as a factual matter, the prior legal state of affairs and the current

legal status quo do exist. It is undeniable that there exists an objectively describable prior legal state of

affairs, which is the set of legal conditions, decisions, and doctrines that held prior to the initiation of the

federal lawsuit. It is also undeniable that the current legal status quo exists: the cases that the Supreme

Court hears essentially always involve an appeal of some lower-court ruling, and how the Court responds

will be influenced by what the lower-court ruling was since this ruling helps establish what the justices

will want to change or defend.

The second rationale for including the current legal status quo when explaining judicial decision-

making is that the justices are aware of, or become aware of, the prior legal state of affairs and the cur-

rent legal status quo for any federal case that is brought to them. For example, it is well understood –

and widely accepted – that the current legal status quo is a key point of reference for justices when they

are considering certiorari, the earliest stage of the Court’s decision-making process. Indeed, the literature

on certiorari clearly – and sometimes quite explicitly – includes the current legal status quo as a key factor

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in the justices’ decisions on whether to accept a case for review. For example, in his study Deciding to

Decide: Agenda Setting in the United States Supreme Court, H. W. Perry (1991: 210) observed that

the relative ease of defensive denials compared to the difficulty of aggressive grants has interesting implications. It suggests that it will be far easier to maintain the status quo than it will be to change, particularly on a closely divided court.

Perry also later remarked (199: 219) that the Court’s presumption that a petition will usually be denied

“has conservative implications (that is, it tends to reinforce the status quo).”

Other comments by Perry also refer to what is, in effect, the current legal status quo, though this term

is not explicitly used. For example, Perry (1991: 199) noted that

There are areas of law generally, and cases specifically, where a justice believes that if a case is reviewed, he will not like the outcome on the merits. Therefore, even if he believes the case is certworthy, and perhaps even believes that the ruling below is a horrible injustice, he still will vote to deny the case. The reasoning is, why make a bad situation worse?

The “bad situation” here is clearly the current legal status quo and while the justice strongly dislikes this

current legal status quo, he is concerned that if the Court accepts the case for review, it will be replaced

by a new policy that is even worse.

Furthermore, the legal briefs the justices subsequently read before oral arguments, and the legal is-

sues they hear discussed at oral arguments, will further describe the current legal status quo. For exam-

ple, it is normal for a legal brief to explicitly urge the Court to act in some particular way because the cur-

rent legal status quo is so undesirable. A recent example is provided in Collins (2009), an amicus brief

submitted to the Court by Kevin Collins, a professor of law at the University of Indiana; Collins urged the

Court to grant cert in Bilski and Warsaw v. Doll by arguing that

Today, the Federal Circuit continues to apply the printed matter doctrine, but not the mental steps doctrine. This status quo is highly suspect as the mental steps and printed matter doctrines are two sides of the same coin: they both address the eligibility of mental processes for patent protection.

Professor Collins’ reference to the “status quo” here is clearly what we are calling the “current legal status

quo.”

In sum, by the time an opinion is to be written, the justices will have become quite well informed

about the prior legal state of affairs and the current legal status quo.

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The third rationale involves the fact that Supreme Court opinions normally begin by describing in

considerable detail both the prior legal state of affairs and the current legal status quo. An example is

the Court’s opinion in Reynolds v. Sims (1964), in which a substantial portion of the opinion was devoted

to describing the history of legislative apportionment in Alabama, the nature of the resulting malappor-

tionment that resulted, and prior legal actions taken by the federal district and appeals courts. If these

descriptions of the prior legal state of affairs and the current legal status quo were largely irrelevant to the

Court’s decision-making process, it seems reasonable to think that the Court would not devote nearly so

much space, time, and energy to providing these descriptions.

The fourth rationale is that because the justices are undoubtedly aware of the prior legal state of af-

fairs and the current legal status quo, they will have, or will develop, preferences over the prior legal state

of affairs and the current legal status quo, and over a number of possible alternatives to the prior legal

state of affairs and the current legal status quo. It is difficult to believe that when the justices learn about

the prior legal state of affairs and the current legal status quo through reading the lower court opinions

and legal briefs on a case, the justices will not develop judgments and preferences regarding the relative

desirability of the various alternative policies available in the case. Indeed, it strains credulity to think

that the justices would simply ignore or somehow forget what they have learned about the current legal

status quo when drafting, evaluating, and voting on proposals to change it.

The fifth rationale focuses on the justice – the Court median – who has the greatest capacity to de-

termine whether the current legal status quo is maintained or replaced by some policy she likes better: due

to Court median’s power, which stems from her strategic location as the median, she can ensure that no

Court majority will form in support of an opinion that is worse for her than the current legal status quo.

After all, since the median justice has the power to ensure that this inferior policy is rejected in favor of

what she considers a better policy (see HBS 2005:ch.5 and Hammond 2009 for further details on why she

has this power), it would be irrational for her to engage in self-defeating actions like this, that is, ensuring

that the Court adopts a policy that is worse for her than the current legal status quo when a policy that is

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better than the current legal status quo for her can be adopted. Such behavior would contradict the fun-

damental rationality assumptions of the HBS models, as contained in assumptions 2 and 3 described

above. Indeed, it would be very much in her interest to ascertain the location of the current legal status

quo, if she is not already aware of it, as the Court deliberates over what to do with the case. If she did not

ascertain the location of the current legal status quo relative to the other alternatives that were available,

she might approve a new policy that turns out to be worse for her than the current legal status quo.

The sixth rationale involves the justices other than the opinion author and the Court median: if a jus-

tice does not include the current legal status quo in his decision-making calculus, he might unwittingly

approve an opinion on a case that leaves legal policy worse off, in his view, than if the case had not been

accepted for review in the first place. For each justice to consider the location of the current legal status

quo when deciding whether to support some draft opinion helps ensure that self-defeating actions like this

are avoided. For this reason, a rational justice will always want to evaluate draft opinions relative to the

location of the current legal status quo. And if the justice does not initially know the location of the cur-

rent legal status quo, it will be in his or her interest, as a policy maximizer, to ascertain its location rela-

tive to the draft opinion and other possible alternatives. Otherwise the justice might behave in ways that,

due to his ignorance about the current legal status quo, make policy worse than it currently is.

The seventh rationale for including the location of the status quo in models of Supreme Court deci-

sion-making is that justices, like all humans, are likely to employ the status quo as a benchmark against

which possible new policy outcomes are evaluated. Behavioral economists and psychologists have long

noted the role that the status quo plays in establishing a frame of reference for individuals when they

make decisions. For example, economists Samuelson and Zeckhauser (1988) argue that due to what they

call a “status quo bias,” individuals are hesitant to make changes unless the outcome is clearly superior.

Psychologists likewise view choices as based on a reference to the status quo; see Tversky and Kahneman

(1991). And studies such Thaler, Kahneman, and Knetsch (1992) have also demonstrated the presence of

“endowment effects” that discourage a decision-maker from giving up something he already possesses.

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Whether the use of the status quo as a benchmark occurs because of an ability to cope with the current

state of affairs is particularly salient for most people, because understanding the current state of affairs is

easy to comprehend, or because of an inability to accurately calculate expected losses and gains are all

reasonable explanations for the importance of the status quo in shaping decision-making.

In sum, when the Court is involved in opinion writing, there is good reason to think that rational jus-

tices do consider its location when they make decisions. The status quo has been a key factor in account-

ing for legislative and bureaucratic behavior (see Shipan 2004, Volden 2002, Tsebelis 2002, for example),

and it seems quite likely that it plays a similar role in the Court’s behavior.

IV. The Role of the Status Quo in the HBS Agenda-Control and Median-Holdout Models To illustrate more precisely how the current legal status quo might be expected to influence the justices’

decision-making process, we will describe two of the HBS models – the agenda-control and median-

holdout models – and demonstrate how the current legal status quo plays a key role in each.

We begin by noting that the HBS models are built on seven basic assumptions, one of which – the

fifth – is an assumption regarding the current legal status quo. Justification for these seven assumptions is

provided in HBS (2005: ch.5).

First, it is assumed that the Court’s decision-making process on each case takes place on a single is-

sue dimension.

Second, it is assumed that each justice has single-peaked preferences on this single dimension. This

means that each justice has an “ideal point” – a best possible policy – on this dimension, and that the de-

sirability of other policies for the justice drops monotonically the farther the policies diverge in either di-

rection from the justice’s ideal point. In effect, “closer is better” for each justice.

Third, it is assumed that justices are rational, in the sense that each justice makes choices that pro-

duce a final policy, in the form of a majority opinion, that is as close as possible to his ideal point.

Fourth, it is assumed that each justice has complete information about the location of each other jus-

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tice’s ideal point.

Fifth, it is assumed that there exists a current legal status quo – the current state of the law and legal

process regarding the issues in a legal case – that remains in effect if the Court does not accept the case

for review and that the justices take into account when writing, evaluating, and voting on draft opinions.

Sixth, it is assumed that a justice will support an opinion if it is at least as good for him as the cur-

rent legal status quo.

Seventh, it is assumed that each case is a one-period game for each justice: the justices’ decision-

making and any associated strategizing extend only as far as the final vote on the current case and no fur-

ther. In effect, each justice considers policies that might be adopted in any future case to have no rele-

vance to his or her choice of a policy on the current case. That is, any future impacts of the Court’s final

opinion beyond the current case are considered by each justice to be unimportant, or are simply ignored.5

Given these seven assumptions, let us now consider the role that the current legal status quo – “SQ”

– plays in the agenda-control and median-holdout models.

The agenda-control model assumes that the majority opinion writer will draft an opinion – propose a

policy – that is as close as possible to his own ideal policy, though this opinion is subject to the constraint

that at least four additional justices must consider the opinion to be at least as good as the current legal

status quo that the Court is considering changing. HBS show that changing the justice who writes the

majority opinion can change the content of the opinion that is adopted; this holds for many (though not

all) of the possible configurations of the justices’ preferences. Thus, given the agenda-control model, the

majority opinion author would often have the most influence over the content of the final majority opin-

ion.

Consider Figure 1, which shows the ideal points of nine justices on a single issue dimension: there

are seven majority-side justices whose ideal points are located to the left of SQ; there are also two minor-

ity-side justices whose ideal points are located to the right of SQ. Given this configuration, what policy

5 HBS (2005: 254-258) considers an alternative interpretation that drops the one-period assumption and interprets a “policy” as consisting of a stream of future implications. This alternative interpretation would not change how the HBS models work.

16

should we expect the opinion author to endorse in a draft majority opinion?6

[Figure 1 about here]

If the opinion author were unconstrained by his fellow justices, he would write the opinion at his

own ideal point. For example, if justice 1 were the opinion author in Figure 1, he would write an opinion

at his ideal point of J1; if justice 2 were the opinion author, he would write it at J2; and so forth for the re-

maining majority-side justices. But of course, the opinion author must attract the support of at least four

other justices in order to have majority support for his opinion. So where should the opinion author locate

the opinion in order to attract the support of these other four justices?

To answer this question, define a justice’s “preferred-to set of SQ” as the set of policies that is better

for the justice than SQ. In formal notation, justice J1’s preferred-to set of SQ is WJ1(SQ), justice J2’s pre-

ferred-to set of SQ is WJ2(SQ), and so forth. The median justice’s preferred-to set of SQ is WJmed(SQ),

and when there are nine justices on a court, justice J5 is the median justice, so the median justice’s pre-

ferred-to set of SQ here would be WJ5(SQ). In Figure 1 each majority-side justice’s preferred-to set of SQ

is depicted by a downward-facing bracket that is centered on the justice’s ideal point and that has its right

end anchored on SQ; the left end of each of these preferred-to sets indicates a policy option that, for the

justice, is equivalent in value to SQ. The brackets for the median justice in these diagrams are all drawn

with heavier lines to highlight their importance (as described below).

In the agenda-control model, justices who are not the majority opinion author do not try to advance

an alternative to the draft majority opinion. Given a draft opinion from the majority opinion author, then,

if any other justice considers the draft opinion to be at least as good as SQ, he or she will simply support

the opinion (e.g., join it), whereas if the draft opinion is worse than SQ for the justice, he or she will not

support it (e.g., dissent from it or write or join a special concurrence).

To illustrate, if justice J1, J2, or J3 in Figure 1 is the opinion author and the median is justice J5, the

6 In this figure, it is assumed that a policy at a distance x to the right of a justice’s ideal point is equal in value, for the justice, as a policy the same distance x to the left of the justice’s ideal point. In other words, the justice’s utility function is symmetrical around the justice’s ideal point. This symmetry assumption is made only for convenience in drawing and interpreting the diagram; it is not an essential part of the HBS models.

17

first three justices have a problem: an opinion at J1 would have the support of only three justices – J1, J2,

and J3 (J1 falls inside only WJ1(SQ), WJ2(SQ), and WJ3(SQ)); and opinions at J2 or J3 would have the sup-

port of only four justices – J1, J2, J3, and J4. None of these possible opinions at J1, J2, or J3 would attract

the support of justice J5, the Court median, since their ideal points all lie outside WJ5(SQ), and if a draft

opinion cannot attract the median justice’s support, it cannot become the majority opinion (this is dis-

cussed in more detail at the end of this section). Hence, the opinion author will have to make concessions

to the median justice in order to attract her support. In particular, the opinion author’s best strategy would

be to write the opinion at the location of *, which lies just inside the “outside” boundary (away from SQ)

of WJ5(SQ).7 Because this policy at * lies inside the preferred-to sets of justices J1 through J5, as shown in

Figure 1, all these justices – they constitute a Court majority – will support the policy even though it is

more liberal (too far to the left) than justice J4 or justice J5 would most prefer, and more conservative (too

far to the right) than justices J1, J2, and J3 would most prefer. We can thus see that for an opinion to at-

tract majority support in the agenda-control model, the opinion must be written inside the median justice’s

preferred-to set of SQ, WJ5(SQ).8

Note that justices J6 through J9 would all refrain from supporting an opinion at * because this opinion

is worse for each of them than SQ. Justices J6 and J7 would both prefer a more liberal (leftward) policy

than SQ, but the opinion at * is too liberal (too far to the left) for their tastes – they both prefer SQ to *.

And justices J8 and J9 would prefer a more conservative policy (farther rightward) than SQ. Despite these

7 Strictly speaking, this policy at * need only be on the lefthand boundary of WJ5(SQ), not inside it as shown: a pol-icy directly on this lefthand boundary would be as good as SQ for the median justice and thus would also gain her support. 8 As noted earlier, the agenda-control model has its roots in the Romer-Rosenthal (1978) model of bargaining be-tween a sophisticated agenda setter and an electorate that must either accept or reject the agenda-setter's proposal and cannot challenge the proposal by revising it prior to the vote. In the judicial context, there are several reasons why justices might not challenge an opinion author’s draft. First, the author may have anticipated his colleagues’ views when writing the opinion; as Maltzman, Spriggs, and Wahlbeck (2000: 96) put it, opinion authors may engage in “preemptive accommodation.” Second, a justice who aggressively pursues his own most-preferred policy on one case may alienate the justice assigned to write the majority opinion and thereby hinder his own capacity to build majority coalitions on future cases when he is the majority opinion author; in fact, the justices may even have evolved a norm of limited mutual deference to whomever the majority opinion author happens to be. Third, Lax and Cameron (2007) show that if opinion writing is costly, the other justices will effectively grant the majority opinion author some measure of agenda control. For example, to challenge the draft majority opinion via an alternative opinion would require a justice to expend costly time and energy on drafting this alternative and trying to attract support for it; the greater these costs, the less likely a justice will find it worthwhile to challenge the draft opinion.

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divergent and incompatible preferences over what policy they do want adopted, justices J6 through J9

would all agree that an opinion at * is worse than SQ, and so none of them would support this opinion.

The draft majority opinion at * would thus be supported by five justices (J1 through J5) and opposed by

four justices (J6 through J9), producing a 5-4 final vote for the opinion at *.

However, if justice J4 writes the majority opinion, he would be free to write it at his own ideal point,

and the same is true for the Court median, justice J5: the reason is that their ideal points both lie inside

WJ5(SQ), which means that opinions at J4 and J5 are both better for justice J5 than SQ. Note also that an

opinion at the ideal point of either justice J4 or justice J5 would lie inside WJ6(SQ), so justice J6 would also

support the opinion. On the other hand, the justices who prefer SQ to an opinion at either J4 or J5 – these

are justices J7, J8, and J9 – would not support the draft opinion: it would be worse than SQ for each of

them. Hence, in Figure 1, if justice J4 writes the opinion at J4, or if justice J5 writes the opinion at J5, ei-

ther opinion would be supported by six justices (J1 through J6) and opposed by three justices (J7 through

J9), so there would be a 6-3 final vote for an opinion at J4 or J5.

Finally, what happens if the majority opinion is assigned to justice J6 or J7? As with justices J4 and

J5, the ideal points of justices J6 and J7 both lie inside WJ5(SQ), the preferred-to set of the median justice,

hence each could write an opinion at his own ideal point. So if justice J6 writes the opinion at J6 or if jus-

tice J7 writes the opinion at J7, either opinion would be supported by seven justices (J1 through J7) and

opposed by two justices (J8 and J9), producing a 7-2 final vote for an opinion at J6 or J7.

In sum, for the majority-side ideal points shown in Figure 1, the agenda-control model predicts that

if justice J1, J2, or J3 is the majority opinion author, each would write the opinion at * inside WJ5(SQ),

whereas if justice J4, J5, J6, or J7 is the opinion author, each would write the opinion at his or her own ideal

point inside WJ5(SQ). Each of the other justices would support the resulting draft opinion if it is at least

as close as SQ to his or her own ideal point, and would not support the opinion if it is farther from his or

her ideal point than SQ.

For the agenda-control model, then, it should be apparent how central the current legal status quo is

19

to the justices’ decision-making process. The median justice uses the location of SQ to establish the set

of policies – WJ5(SQ) – that are at least as good as SQ for her; she will support a draft majority opinion

only if it is at least as good as SQ for her. The majority opinion author knows that if the draft opinion is

not at least as good as SQ for the median justice, she will not support it and as a result it will not have

majority support. And every other justice decides whether to support or oppose the draft majority opinion

on the basis of whether the draft opinion is at least as good as SQ for him.

In the “median-holdout” model, the median justice simply makes it clear that she will not sign any

opinion that is not at her own ideal point. Refusing to sign a draft opinion not at her ideal point is a ra-

tional and sustainable strategy for her because there will always be four other justices who would also

prefer a policy at J5 to any other proposal. These four justices would have no incentive to undermine her

by supporting this draft opinion. As a result, if she refuses to support a draft opinion, it will be unable to

attract majority support. Hence, for the majority opinion author to attract majority support for some pro-

posal, he would have to modify his proposal so it is located at the median justice’s ideal point.

For example, if justice J6 in Figure 1 is the majority opinion author and drafts an opinion at J6, me-

dian justice J5 would refuse to sign it, holding out for an opinion at J5. And since justices J1, J2, J3, and J4

would also prefer an opinion at J5 to an opinion at J6, they would refuse to undercut her by endorsing the

draft opinion at J6 even though they would all find an opinion at J6 to be acceptable (it is better than SQ

for each of them). Lacking majority support for his draft opinion at J6 as a consequence, the opinion au-

thor would have to revise his opinion and locate it at the median justice’s ideal point; if justice J6 did not

revise it, SQ would be the outcome and he would thereby forego a majority opinion at J5, which is better

for him than SQ. So justice J6 would revise his opinion to J5, and the median justice would then sign it,

ensuring that it has majority support. This opinion at J5 would thus have the support of justices J1 through

J6 since it lies inside all their preferred-to sets of SQ. In sum, no matter where the opinion writer’s ideal

point is located, the majority opinion will always end up at J5 under the median-holdout model.9

9 If opinion author J6 refuses to modify his opinion at J6 even though it lacks majority support, thinking that justices J1 through J5 might eventually concede and support the draft at J6 since it is better for each of them than SQ, justices

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As with the agenda-control model, it is apparent that the legal status quo plays a major role in the

median-holdout model here. The median justice needs to know whether her ideal point is located at the

current legal status quo; if her ideal point is located at the current legal status quo, she would not support

any change in policy, but if her ideal point is not located at the current legal status quo, she will insist on a

new policy that is located at her ideal point. Furthermore, the other justices will need to know the loca-

tion of the current legal status quo in order to determine whether they should support the median’s most-

preferred policy; each justice will base this support/do-not-support decision on whether the draft opinion

is at least as good as SQ for him.

In parts III and IV here, note that we have highlighted the power of the median justice to influence

what will or will not become Court policy. The reason is that the median justice is, in effect, both a nec-

essary and a sufficient member of any majority coalition that wants to replace the legal status quo with

some new Court policy. For example, note that every justice with an ideal point to the outside of the me-

dian justice’s ideal point will have a preferred-to set of SQ that includes all of the median justice’s pre-

ferred-to set of SQ. For example, we can see in Figure 1 that the preferred-to sets of J1, J2, J3, and J4 all

include the entire preferred-to set of SQ – WJ5(SQ) – of justice J5, the Court median. As a result, any

draft opinion that lies inside WJ5(SQ) will also lie inside WJ1(SQ), WJ2(SQ), WJ3(SQ), and WJ4(SQ),

which means that these four justices – J1, J2, J3, and J4 – will also prefer this draft opinion to SQ. So

whenever a draft majority opinion is acceptable to justice J5, because this opinion lies inside WJ5(SQ),

justices J1 through J4 will find it acceptable as well; hence, this opinion could always attract the support of

a Court majority.

It is equally important to recognize that if the median justice prefers SQ to a draft majority opinion

(i.e., if the draft opinion in Figure 1 lies outside – to the left of – WJ5(SQ)), this draft opinion cannot pos-

sibly gain majority support. The reason is simply that if a draft opinion lies outside WJ5(SQ), it will also

lie outside WJ6(SQ), WJ7(SQ), WJ8(SQ), and WJ9(SQ), so none of these four other justices would supply

J1 through J5 might then respond by actively drafting and approving their own majority opinion at J5, as in the HBS open-bidding model.

21

the decisive fifth vote either. Thus, we can conclude that if a draft majority opinion cannot attract the

support of the median justice, it cannot attract the support of a Court majority.

It is for these reasons that we conclude that the median justice is both a necessary and a sufficient

member of any majority coalition that wants to replace SQ with some new Court policy. The median jus-

tice is necessary in the sense that if she prefers SQ to some draft opinion, there will always be at least four

other justices who also prefer SQ to the draft opinion, hence this opinion could not gain majority support.

And the median justice is sufficient in the sense that if she prefers some draft opinion to SQ, there will

always be at least four other justices who also prefer the draft opinion to SQ, hence this draft opinion will

be able to gain majority support. In a nutshell, the median justice is critically important because the Court

is a majority-rule institution. If the Court’s final vote were not governed by majority rule, the median

justice would not be nearly as important.

In sum, we can see the key role that the current legal status quo plays in the HBS models. For the

Court median, we have demonstrated that this justice plays a critical role in determining what new policy

is adopted or even whether any new policy is adopted at all: in the agenda-control model, she determines

whether the draft majority opinion can get the critical fifth vote, and in the median-holdout model, she

determines where the majority opinion is located (i.e., at her own ideal point). For the median justice in

each model, the critical variable is where a draft majority opinion lies in relation to the current legal status

quo. And for each remaining justice, deciding whether to support a draft majority opinion hinges on

whether he considers the draft opinion to be at least as good as the current legal status quo; if the draft

majority opinion is at least as good as the current legal status quo, the justice will support the opinion,

whereas if the draft majority opinion is worse than the current legal status quo, the justice will not support

the opinion.

V. Criticisms of the “Current Legal Status Quo” and Its Role in Court Decision-Making

We consider the perspective developed in the first four sections of this paper to be unexceptional. It is a

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perspective that is based on what we think are conventional policy-maximization premises. These prem-

ises are, we think, shared by a great many political scientists who accept either the “strategic model” or

the “attitudinal model” as the standard account of Supreme Court decision-making. Nonetheless, some

political scientists disagree with our characterization of the role that the current legal status quo plays in

Supreme Court decision-making. What are their arguments, and how would we respond to them?

Many of these arguments have been advanced in personal conversations with us, in convention pan-

els on judicial topics, and in hallway discussions that we have participated in or overheard after these

panels. Very few of these arguments have appeared in print, either in convention papers or in publica-

tions. For this reason, most of our responses to these arguments will not be able to cite or quote particular

statements by these critics.

Criticism 1 : The literature on Supreme Court decision-making does not provide evidence that a

justice evaluates draft opinions in terms of whether the opinions are at least as good for the justice as the

status quo.

Our response begins with the observation that, as a factual matter, the literature on certiorari clearly

does depict justices as explicitly considering whether the likely result from accepting a case for review

will be a final opinion that is better than, or worse than, the legal status quo. To illustrate, note that we

have already provided several quotations from Perry (1991) in which the term “status quo” was either

explicitly used or else was clearly implied. Review of other articles on certiorari would, we think, reveal

additional instances in which the concept of the “status quo” is mentioned, whether explicitly or implic-

itly.

There is also evidence that the justices do, in fact, think about the status quo when the majority opin-

ion is being written, though the term “status quo” may not be explicitly used. For example, in a written

exchange between Justices Brennan and Marshall during the drafting of the opinion for Pennsylvania v.

Muniz (1990), Justice Brennan (1990) justified his majority opinion by asserting:

As you will recall, Sandra forced my hand by threatening to lead the revolution….the opinion still describes the “routine booking question” exception in narrow terms, and in my view it leaves the

23

law no worse off than it already was before, since every circuit has already found such an exception to exist. [Emphasis added]

Justice Brennan was willing to abandon his most preferred outcome in order to secure Justice O’Connor’s

support so long as the final outcome was not worse than the legal status quo.

Second, those who practice before the Court realize that justices consider the status quo when evalu-

ating the likely impact of their arguments on the justices. As Lawrence Wallace explained (Mauro 2003:

57), “You have to show them why your answer to the case is not something that will do damage to the

law.” The phrase “damage to the law” implies a reference to the legal status quo.

Third, as we have already argued, the substantial space in Supreme Court opinions that is devoted to

detailed descriptions of the prior legal state of affairs and the current legal status quo clearly suggests that

these are important factors to the justices when they make their decisions. Why would they devote so

much space, time, and energy to characterizing something that plays no role in their decision-making

processes?

Criticism 2 : Given that the initial decision in conference is based upon an affirm/reverse decision,

that this conference decision creates the majority coalition, and that the location of the status quo does

not play a role in making this initial decision, models based on the legal status quo mischaracterize Su-

preme Court decision-making.

This objection to SQ-based models was initially advanced by Westerland (2003) and recently cited

and further developed by Brenner and Whitmeyer (2009: 93-95). Westerland’s argument is, in effect, that

the provisional affirm/reverse decision that is made in conference creates a majority coalition that, in turn,

writes the majority opinion; the problem with the SQ-based models is that they cannot be used to explain

these affirm/reverse decisions.

Our response is simply that justices generally care far more about the content of the majority opinion

than about what happens to individual plaintiffs and defendants in the Court’s affirm/reverse decision (see

Hammond 2009). As Perry (1991: 220) asserted, for example:

24

[T]here are those individual cases that the justices see as egregious. But generally, individual cases are seen as fungible [replaceable]; it is the issue that the case raises that is important, not the case itself.

As a result, we would argue, the initial (and provisional) affirm/reverse decision that the justices make in

conference (and that determines who becomes the majority opinion author) is a product of what each in-

dividual justice initially thinks should be the legal policy on the case. In other words, it is what various

justices desire for the content of the majority opinion that drives their initial affirm/reverse votes in con-

ference; it is not the case, in our view, that the initial affirm/reverse decision in conference later drives the

choice of legal policy for the majority opinion. It also follows that the final affirm/reverse decision that

the Court needs to make will usually be derived directly from the content and logic of the final majority

opinion that has been adopted.

So while it is accurate to say that models that incorporate the status quo (such as the HBS models)

largely ignore the affirm/reverse aspects of Supreme Court decisions, we would suggest that this is not a

particularly important matter for understanding what is most important about Court decision-making.

What is most important is the opinion-writing process. The affirm/reverse decision, in our view, is a sec-

ondary consequence of the final majority opinion that is adopted.

Criticism 3 : The current legal status quo is relevant to the Court’s cert decision on a case, but if

the Court does grant cert, this means that the Court has decided to change policy, or at least that the

Court is very likely to change policy, and so the current legal status quo becomes largely irrelevant.

There are several difficulties with this criticism.

First and most obviously, we simply note that cert can be granted by as few as four justices, whereas

a majority opinion normally requires five votes (assuming all nine justices participate). So while four

justices may be able to ensure that cert is granted so that they can try to overturn the current legal status

quo, the other five justices may be satisfied with the current legal status quo (especially if it is equivalent

to the prior legal state of affairs) and so write a majority opinion that retains the current legal status quo.

Just because a case is accepted for review does not necessarily mean that the justices will change policy.

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Second, because it seems rather unlikely that the median justice’s ideal point will lie precisely at SQ,

this means that there will usually exist some policy that a majority of justices prefer to SQ.10 This means

in turn that a rational and informed majority opinion author will always be able to find a location for an

opinion that will attract majority support. This conclusion follows directly from the logic of majority-rule

models incorporating the legal status quo.

But while we agree that the current legal status quo is generally rather likely to be upset by the

Court, this in no way implies that the legal status quo is irrelevant to the Court’s decision-making process.

The reason should be obvious by now. As we demonstrated in part IV, it is possible that a majority opin-

ion author will have an incentive to write an opinion that is at his own ideal point; for example, majority

opinion author justice J1 in Figure 1 would prefer to write his opinion at J1. But if justice J1 drafts an

opinion at J1, the median justice, J5, will consider this draft opinion at J1 to be worse than SQ, and so will

not support J1’s draft opinion; instead, justice J5 would write an opinion that, in effect, prevents the opin-

ion at J1 from attracting majority support. This means that justice J1 could not attract majority support for

an opinion at J1 and would instead have to write an opinion, such as at *, that lies inside WJ5(SQ). It is

this threat by J5 not to support an opinion at J1, backed up by justices J6, J7, J8, and J9 (who all prefer J5 to

J1) that forces justice J1 to write an opinion someplace inside WJ5(SQ). If majority opinion author J1 in-

sists on drafting an opinion that lies outside the median justice’s preferred-to set, which is WJ5(SQ), and if

no one else attempts to draft an alternative opinion that lies inside WJ5(SQ), then the justices will vote in a

way that ensures that the opinion author’s draft opinion cannot gain majority support. In this way, the

current legal status quo would remain in effect, contrary to what the criticism states. Thus, far from being

irrelevant, the legal status quo here should be expected to have a major impact on each justice’s decision-

making calculus and thus on what opinion is produced and who ultimately supports it. And it is precisely

because rational majority opinion authors undoubtedly understand this simple logic that they usually pro-

duce draft opinions which successfully attract majority support.

10 Proposition 6.2 in HBS (2005: 97) states that “If SQ is not located at Jmed [the ideal point of the median justice], there exists some policy that a majority of justices prefer to SQ.” If the median justice’s ideal point is at SQ, no majority opinion that upsets SQ is possible; for this see Proposition 6.1 in HBS (2005: 97).

26

Finally, we note that the Court always has the capacity to produce an opinion that does not change

the legal status quo. It has three principal vehicles for doing this. First, it can and occasionally does dis-

miss as improvidently granted – “D.I.G.” – a case to which it has previously granted cert. Second, it can

issue a plurality opinion that has limited value for establishing a new precedent. Finally, it can protect the

status quo by simply dodging the underlying legal question. For example, in Elk Grove v. Newdow, the

Court evaded the question of the constitutionality of requiring students to recite the Pledge of Allegiance,

with its “under God” phrase, by ruling 8-0 that plaintiff Michael Newdow lacked standing due to the child

custody arrangements with the mother of his daughter.

Criticism 4 : If a legislative body fails to pass a bill (i.e., does nothing), the status quo ante will re-

main in effect by default, but in the Supreme Court the status quo ante can be restored only by some kind

of deliberate behavior by the Court.

Given our definitions of the prior legal state of affairs and the current legal status quo, it is not en-

tirely clear to us what this criticism means or how relevant it is. Any comparison of the Supreme Court to

a legislative body is complicated because the status quo can be changed only if the legislative body, and

perhaps the other chamber and the president, all agree to a particular change in policy. In contrast, for the

Supreme Court there are at least two actors that act in sequence – an appeals court and the Supreme Court

– and each can independently change the legal status quo. For example, because the appeals court can

issue a ruling that changes legal policy, at least in its circuit, this means that the current legal status quo

would be different from the prior legal state of affairs. Thus, what the critics consider to be the “status

quo ante” here is not clear: are they referring to the prior legal state of affairs or to the current legal status

quo?

For this reason, we will attempt to clarify matters by examining the two different situations that in-

volve the relationship between the prior legal state of affairs and the current legal status quo. First, we

will consider a situation in which the prior legal state of affairs is upheld by an appeals court ruling,

which means that the current legal status quo is the same as the prior legal state of affairs. Second, we

27

will consider a situation in which the prior legal state of affairs is modified by an appeals court ruling,

which means that the current legal status quo is not the same as the prior legal state of affairs.11

The first situation involves a case in which the prior legal state of affairs is upheld by an appeals

court, which means that the current legal status quo that results will be the same as the prior legal state of

affairs. Because the appeals court ruling upheld the prior legal state of affairs, the Court could simply

refuse to hear the case, and so the prior legal state of affairs would automatically continue to hold. If the

Court does accept the case, two different results are possible. If the Court upholds some version of the

appeals court ruling, this would simply maintain the current legal status quo, which means in turn that the

prior legal state of affairs would continue in effect. But if the Court rejects or substantially modifies the

appeals court ruling, the current legal status quo would be changed, which means in turn that the final

majority opinion would change the prior legal state of affairs.

The second situation involves a case in which the prior legal state of affairs has been modified by the

appeals court, thereby producing a current legal status quo that is different from the prior legal state of

affairs. If the Court refuses to hear the case, this current legal status quo will remain in effect, which

means of course that the prior legal state of affairs will not have been restored. If the Court does accept

the case, two different results are possible. If the Court upholds some version of the appeals court ruling,

this means that the policy adopted will now hold for the rest of the country, which would presumably

again mean that the prior legal state of affairs will not have been restored. But if the Court simply over-

turns (rejects) the appeals court ruling, this action would appear to imply that the prior legal state of af-

fairs will have been restored.

If we have accurately outlined the major possible scenarios, what do the results imply for the criti-

cism that the legal status quo in the HBS models is somehow different from the status quo in legislative

models? Our answer, in effect, is that, yes, the nature of the relationship between the Court and the status

quo appears to be somewhat different from the relationship between a legislative body and the status quo;

11 See Lax (2003) and Hammond, Bonneau, and Sheehan (2006) for formal models of Supreme-Court/appeals-court interactions.

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instead, this relationship between an appeals court, the Supreme Court, and the legal status quo appears to

be more complex. But so what? The basic facts of the matter are that the justices face the current legal

status quo on every case, and that this current legal status quo may or may not be different from the prior

legal state of affairs (i.e., prior to the initiation of the federal lawsuit). The question for the majority opin-

ion author is this (given the HBS agenda-control model): what opinion can I write that will produce what

I consider to be a better policy than the current legal status quo and that can also attract majority support?

The question for the median justice is this: given the opinion author’s draft majority opinion, do I con-

sider this draft opinion to be at least as good as the current legal status quo, in which case my approval

will guarantee that it has majority support, or do I consider this draft opinion to be worse than the current

legal status quo, in which case my disapproval will guarantee that it does not have majority support? And

the question for each remaining justice is this: given the opinion author’s draft majority opinion, do I con-

sider this draft opinion to be at least as good as the current legal status quo (in which case I will support

it), or do I consider this draft opinion to be worse than the current legal status quo (in which case I will

not support it)?

In other words, just because the relationship between the Supreme Court and the status quo is more

complicated than the relationship between a legislative body and the status quo, due to the prior actions of

one or more appeals courts, this does not somehow render the concept of the current legal status quo ir-

relevant for Supreme Court decision-making.

What is confusing the critics, we suspect, is that they have not explicitly distinguished what we have

called the “prior legal state of affairs” from the “current legal status quo.” If what the critics are calling

the “status quo ante” is, in effect, what we are calling the “prior legal state of affairs,” then there can in-

deed be a difference between the status quo ante in a legislative model and the status quo ante in a legal

model. If the legislative body fails to pass a bill, the status quo ante remains in effect, whereas with the

Supreme Court, the status quo ante – which would be our prior legal state of affairs – may have been

changed by an appeals court, and the only way the Court can restore this status quo ante (the prior legal

29

state of affairs) if it has been changed by the appeals court is by issuing a majority opinion that explicitly

restores the status quo ante (the prior legal state of affairs). Of course, if the appeals court ruling has up-

held the status quo ante (which means that the current legal status quo is identical to the prior legal state

of affairs), the Supreme Court can either decline to hear the case, in which case the status quo ante (the

prior legal state of affairs) is maintained or else the Court can accept the case and issue an opinion that

upholds the appellate court ruling (which is the same as maintaining the current legal status quo), thereby

again maintaining the status quo ante (which is the prior legal state of affairs). Thus, the prior legal status

quo may or may not be the “default” for the Supreme Court; it depends on what the appeals courts have

done. But none of this means that the current legal status quo is irrelevant; indeed, it is the current legal

status quo that drives the Court’s decision-making process.

VI. Summary and Conclusion

The current legal status quo anchors the decisions that the Supreme Court justices must make. The key

question for each justice is whether the proposal from the majority opinion author is at least as good as, or

worse than, what is already available in the current legal status quo. For each justice, if he considers the

draft majority opinion to be better than, or at least as good as, the current legal status quo, then he will

support the opinion (e.g., he will join the draft opinion). But if the justice considers the draft majority

opinion to be worse than the current legal status quo, then he will not support the draft opinion (e.g., he

will write or join some kind of dissent, or write or join a special concurrence). This kind of calculation is

especially important for the median justice because as we have shown, the median justice has the power,

precisely due to her position as the median justice on a majority-rule Court, to determine whether some

draft majority opinion will be able to attract majority support. We have even argued that if the justices do

not initially know the location of the current legal status quo, each justice will find it in his interest to de-

termine its location; otherwise, he might find that he has supported an opinion that ended up making pol-

icy worse, to his surprise and consternation, than if he had opposed the opinion and thereby helped pre-

30

vent the case from even being reviewed by the Court in the first place.

None of the criticisms of the concept of the legal status quo or its role in Supreme Court decision-

making are valid. But one frustration we have had in addressing our critics is that they have not, for the

most part, specified precisely how their own preferred theories work, given that their theories do not in-

clude any concept like the legal status quo; everything has been left at such a level of generality that we

cannot tell exactly how their own theories are supposed to work. The primary unidimensional theory that

they have advanced – see Westerland (2003) and Brenner and Whitmeyer (2009) – is what we have called

the “‘median of the majority coalition’ hypothesis,” which is that the majority opinion will be written at

the ideal point of the justice who was the median of the majority coalition on the conference vote. How-

ever, Hammond (2009) demonstrates that this hypothesis has numerous significant failings. One major

failing is the fact that if justices care primarily about legal policy (as Perry 1991 clearly and explicitly

argues) rather than about the outcome of the affirm/reverse decision (who wins, and who loses?), and if

decision-making takes place on just one issue dimension (as Brazill and Grofman (2002), Grofman and

Brazill (2002), and Martin and Quinn (2002) demonstrate statistically), then an opinion at the median of

the majority coalition cannot necessarily attract majority support.12

The general question that needs to be raised about theories that lack a status quo is this: if a justice

does not base his decision regarding whether to support a draft majority opinion on whether the draft

opinion is better than, or worse than, the status quo, then the key question is: what alternative criterion

does each justice use to decide whether to support the draft opinion? In effect, how does a justice decide

whether a draft opinion is “close enough” to his ideal point to warrant support? In the HBS models, the

“close enough” criterion is established by the justice’s comparison of the distance between his ideal point

12 Vanberg, Carrubba, Friedman, and Martin (2009) argue that if justices do give some weight to the affirm/reverse decision, which implies that the decision-making process is multi-dimensional, then the final majority opinion might indeed be at the median of the majority coalition, the “MMC.” But an assumption that the decision-making process is multi-dimensional does not fit easily with the observations of Brazill and Grofman (2002), Grofman and Brazill (2002), and Martin and Quinn (2002) that the process is effectively unidimensional, and the assumption that the jus-tices give some weight to the outcome of the affirm/reverse decision is not compatible with the observations in Perry (1991). And note that even in Vanberg et al. (2009), the authors have to modify their prediction that the opinion will be at the MMC by specifying that the opinion might actually have to be different from the MMC since it may not be able to attract majority support, precisely as Hammond (2009) noted.

31

and the draft majority opinion, on the one hand, and the distance between his ideal point and the current

legal status quo, on the other; he supports whichever option – the draft opinion or the current legal status

quo – is closer to his ideal point. But if a model does not include the current legal status quo (or the prior

legal state of affairs), how would a justice decide whether to support the draft majority opinion?

Perhaps each justice has a kind of “aspiration level” which tells him whether a draft majority opinion

is “close enough” to his ideal point: if the value of the draft opinion meets or exceeds his aspiration level,

he supports it, but if the value of the draft opinion does not meet his aspiration level, he does not support

it. But this raises further issues, such as how or where this aspiration level originates. Our critics have

not even begun to consider such questions.

This focus on aspiration levels also raises the question of whether it would even be feasible to test

such a model. If each justice has a different aspiration level, then the model might be very difficult to

test. In particular, it appears that everything would depend on what each justice’s “close enough” aspira-

tion level happened to be. The reason is simply that for justice Ji, his aspiration level might tell him that a

proposal x units away from his ideal point would be acceptable – “close enough” – whereas for justice Jj,

her aspiration level might tell her that a proposal x units away from her ideal point would not be accept-

able – “not close enough.” So we might conceivably find cases in which a draft majority opinion that is

“close” to justice Ji attracts his support but the same draft opinion that is equally “close” to justice Jj does

not attract her support. This suggests to us that it might be very difficult to derive general propositions

about the Court’s decision-making process that are testable; every case considered by the Court would be

unique and ungeneralizable. And even if a plausible and coherent formal model could be worked out

here, testing it might still require independent determination of what each justice’s “close enough” aspira-

tion level happens to be, and this might be a very difficult enterprise (especially if it varies from case to

case for each justice, as seems most plausible).

Furthermore, if the median justice based her “close enough” decision on some kind of aspiration

level, she might well find herself in a situation where some draft majority opinion is closer to her ideal

32

point than is the current legal status quo, which means that the draft opinion is better for her than the cur-

rent legal status quo, but her aspiration level is more demanding and so she chooses not to support the

draft opinion. The consequence would be that she is missing an opportunity to improve policy, compared

to where the current legal status quo is. That is, by the normal definition of rationality, she is acting irra-

tionally since she is choosing an inferior policy (the current legal status quo) over a better policy (the draft

majority opinion). Conversely, she might find herself in a situation where some draft majority opinion is

farther from her ideal point than is the current legal status quo, which means that the draft opinion is

worse for her than the current legal status quo, but her aspiration level is less demanding, and so she

chooses to support the draft opinion. The consequence is that the median justice here is missing an op-

portunity to prevent a degradation in policy; that is, she is choosing an inferior policy (the draft majority

opinion) when a better policy (the current legal status quo) is available. Again, by any definition, this

would have to be considered irrational (at least in a one-time-period game).

In other words, if the median justice uses something other than the current legal status quo as her ba-

sis for deciding whether to support a draft majority opinion, she exposes herself to both Type I and Type

II decision errors: sometimes she would reject a policy that she should accept, and sometimes she would

accept a policy that she should reject. This suggests the eighth and final rationale for why the current le-

gal status quo should be considered an essential aspect of Supreme Court decision-making: any criteria

that is used to guide judicial decision-making other than the location of the current legal status quo will

expose a justice to both Type I and Type II decision errors.

Over the years, political scientists have espoused numerous models of both judicial decision-making

and court outcomes. While some have argued that Court outcomes are located at the median of the ma-

jority, others (including ourselves) have found support for an agenda control model. And others have

maintained that it is the Court median that determines outcomes. As richer and more sophisticated mod-

els are developed and tested, we believe that the prior legal state of affairs and the current legal status

quo, or concepts rather like them, will continue to play an essential role in any new generation of theories.

33

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J1 J2 J3 J4 J5 J6 J7 J8 J9

Figure 1: Supreme Court Decision-Making with a 7-Member Majority Coalition

SQ

*

WJ7(SQ)

WJ6(SQ)

WJ1(SQ)

WJ4(SQ)

WJ3(SQ)

WJ2(SQ)

Note: The preferred-to sets of J1, J2, and J3 extend leftward off the page

WJ5(SQ)

Court Median

Median of the Majority Coalition (MMC)

ε

2