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

Álvaro Bustos and Emerson H. Tiller

International Review of Law and Economics, 2021, vol. 67, issue C

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.

Keywords: Opinion writing; Supreme Court; Chief justice; Reputation and legacy; Obamacare decision (search for similar items in EconPapers)
JEL-codes: K10 K30 K40 (search for similar items in EconPapers)
Date: 2021
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Persistent link: https://EconPapers.repec.org/RePEc:eee:irlaec:v:67:y:2021:i:c:s0144818821000259

DOI: 10.1016/j.irle.2021.106001

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