Trading Votes for Reasoning: Covering in Judicial Opinions – Article by Stephen J. Choi & G. Mitu Gulati

From Volume 81, Number 4 (May 2008)

Studies report that judges who are on panels with at least one other judge of a different political party (a “mixed panel”) tend to moderate their votes, particularly when cases involve politically charged subject matter. We examine whether this moderation in voting is the product of bargaining among mixed panel judges, where authoring judges, who might otherwise face a dissenting vote (or find themselves in dissent), trade their votes for the ability to craft the reasoning in a unanimous majority opinion closer to their own policy preferences and thereby affect the opinion’s precedential value. Using citation patterns within opinions as a proxy for how judges reason, we report that authoring judges on mixed panels do not moderate their reasoning when it comes to opinions relating to salient subject matter areas. Partisan reasoning in top salient areas is also higher when the authoring judges have more bargaining leverage over opposite party judges on the same panel. Finally, partisan reasoning in top salient areas is greatest among authoring judges who have the most skill at writing influential opinions. The foregoing is consistent with the theory that judges engage in covering: moderating their voting when associated with an opposite party judge on the same panel, a highly visible activity, but adjusting the reasoning in the opinion to tilt the decision back toward the authoring judge’s own preferred ideological position, a less visible activity, done under the cover of the more visible, moderated vote.




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