Upon deciding a case, the Supreme Court issues an opinion that contains both a dichotomous judgment and a lengthy rationale justifying its decision. The arguments made in the opinion determine the scope of public policy and have broad impacts on the political system. Yet precisely how the members of the Court interact to produce the content of the policy contained within the majority opinion remains shrouded in mystery. This dissertation investigates the causes and consequences of bargaining and accommodation dynamics in the creation of U.S. Supreme Court majority opinions, arguing that, though they are constrained by contextual and institutional factors, certain justices are pivotal players in the creation of public law. It provides an empirical micro-foundation of judicial behavior to inform theories of intra-court bargaining and it reveals hidden aspects of the Supreme Court's opinion writing process. Focusing on the Burger Court (1969-1985), the project draws evidence from an original dataset that combines drafts of majority opinions with private memoranda the justices use to communicate after oral arguments and before the public release of the Court's opinion. It begins by introducing the motivation for the study and by detailing the collection and coding of the original data, which are then used to provide the analyses in the rest of the dissertation. The project presents three theoretically related, but empirically independent, essays to examine the dynamic opinion writing process. Throughout the work, novel data reveal previously unknown aspects of the behind-the-scenes negotiations between Supreme Court justices. Content analysis of the justices' internal bargaining memoranda reveal the topics and extent of justices' engagement with one another and the strategies employed as bargaining members attempt to influence the collegial development of the Court's opinion. Building on existing research, this dissertation theorizes that justices who sit in key median positions -- of the entire Court and of the winning coalition -- are most likely to influence the shape and scope of the legal rule contained in the majority opinion. It presents additional predictions about the constraining influence of institutional and contextual features. The evidence suggests that while opinion authors are largely amenable to their colleagues, contrary to popular discourse, it is not the Court's "swing justice" that is principally influential, but rather that the median member of the majority coalition holds particular sway in the development of the opinion. Median members of the winning coalitions are more likely to succeed in persuading the author to make changes to opinion drafts and are less likely to face requests from other justices when they write the majority opinion. Conversely, the findings show that when the Court's median justice writes the majority opinion, the other members of the winning coalition are more likely to write separate concurring opinions without prior engagement. While these pivotal players are certainly influential, the evidence shows that the success of a justice's attempts to persuade the opinion author to alter the majority opinion depends mainly on the content of the negotiation as well as the tone or frame of the request, and that past cooperation has a sizable impact on a justice's willingness to engage with the author during the crafting of the opinion. The dissertation further investigates what happens when compromises cannot be struck between the author and a bargaining justice, and finds evidence that it has consequences for the final output of the Court by occasionally sparking the publication of concurring opinions.
Read
