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Authorial control of the Supreme Court: Chief Justice Roberts and the Obamacare surprise

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  • Bustos, Álvaro
  • Tiller, Emerson H.

Abstract

This article models the interaction of key factors missed in most accounts of Supreme Court decision making -- that is, the interaction of the rules of authorship (chief and senior justice authorship rights), authorship utility (in terms of justice reputation, and the chief justice’s legacy), and the constraint of legal doctrines. We model how (1) the chief justices and senior median justices compete for case authorship and have incentives to vote for policy outcomes they do not prefer in order to gain authorship control of the Court’s opinion (and the added reputation and legacy utility that comes with authorship), and (2) legal doctrines may enhance or restrict such behavior. We illustrate the model through a stylized account of the Supreme Court’s 2012 “Obamacare” decision where the deciding vote of Chief Justice Roberts to uphold Obamacare (along with his authorship of the opinion), and the dissenting vote of Justice Kennedy to repeal Obamacare, follow the implications of our model rather than the counter expectations of Supreme Court experts and commentators at the time. The model has implications for interpreting justice voting and authorship behavior and how the design of legal doctrines influence the justices’ votes and opinion authorship.

Suggested Citation

  • Bustos, Álvaro & Tiller, Emerson H., 2021. "Authorial control of the Supreme Court: Chief Justice Roberts and the Obamacare surprise," International Review of Law and Economics, Elsevier, vol. 67(C).
    • Handle: RePEc:eee:irlaec:v:67:y:2021:i:c:s0144818821000259
    DOI: 10.1016/j.irle.2021.106001
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    References listed on IDEAS

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    1. Kornhauser, Lewis A., 1992. "Modeling collegial courts I: Path-dependence," International Review of Law and Economics, Elsevier, vol. 12(2), pages 169-185, June.
    2. Charles M. Cameron, 2007. "Bargaining and Opinion Assignment on the US Supreme Court," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 23(2), pages 276-302, June.
    3. Álvaro Bustos, 2020. "How Does Court Stability Affect Legal Stability?," Documentos de Trabajo 535, Instituto de Economia. Pontificia Universidad Católica de Chile..
    4. Schwartz, Edward P, 1992. "Policy, Precedent, and Power: A Positive Theory of Supreme Court Decision-Making," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 8(2), pages 219-252, April.
    5. Kornhauser, Lewis A, 1992. "Modeling Collegial Courts. II. Legal Doctrine," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 8(3), pages 441-470, October.
    6. Emerson H. Tiller, 2007. "Legal Doctrine and Political Control," The Journal of Law, Economics, and Organization, Oxford University Press, vol. 23(2), pages 326-345, June.
    7. Cliff Carrubba & Barry Friedman & Andrew D. Martin & Georg Vanberg, 2012. "Who Controls the Content of Supreme Court Opinions?," American Journal of Political Science, John Wiley & Sons, vol. 56(2), pages 400-412, April.
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    More about this item

    Keywords

    Opinion writing; Supreme Court; Chief justice; Reputation and legacy; Obamacare decision;
    All these keywords.

    JEL classification:

    • K10 - Law and Economics - - Basic Areas of Law - - - General (Constitutional Law)
    • K30 - Law and Economics - - Other Substantive Areas of Law - - - General
    • K40 - Law and Economics - - Legal Procedure, the Legal System, and Illegal Behavior - - - General

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