Journal Article

Standing the Test of Time: The Breadth of Majority Coalitions and the fate of U.S. Supreme Court Precedents

Stuart Minor Benjamin and Bruce A. Desmarais

in Journal of Legal Analysis

Published on behalf of The John M. Olin Center for Law, Economics and Business at Harvard Law School with the support of the Considine Family Foundation

Volume 4, issue 2, pages 445-469
Published in print December 2012 | ISSN: 2161-7201
Published online August 2012 | e-ISSN: 1946-5319 | DOI: http://dx.doi.org/10.1093/jla/las016

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Should a strategic Justice assemble a broader coalition for the majority opinion than is necessary, even if that means accommodating changes that move the opinion away from the author’s ideal holding? If the author’s objective is to durably move the law to his or her ideal holding, the conventional answer is no, because there is a cost and no corresponding benefit. We consider whether attracting a broad majority coalition can placate future courts. Controlling for the size of the coalition, we find that cases with ideologically narrow coalitions are more likely to be treated negatively by later courts. Specifically, adding either ideological breadth or a new member to the majority coalition results in an opinion that is less likely to be overruled, criticized, or questioned by a later court. Our findings contradict the conventional wisdom regarding the coalition-building strategy of a rational and strategic opinion author, establishing that the author has an incentive to go beyond the four most ideologically proximate Justices in building a majority coalition. And because of later interpreters’ negative reactions to narrow coalitions, the law ends up being less ideological than the Justices themselves.

Journal Article.  9947 words.  Illustrated.

Subjects: Jurisprudence and Philosophy of Law

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