Strategic Policy Considerations and Voting Fluidity on the Burger Court

Abstract

Justices are strategic actors. This is particularly evident when they change their votes between the original conference on the merits and the Court's announcement of the final decision. We predict that such voting fluidity may be influenced by strategic policy considerations, justices' uncertainty over issues involved in a case, the chief justice's interest in protecting his prerogatives, and other institutional pressures. To test our hypotheses, we explore the occurrence of fluidity on the Burger Court (1969–85). Using logistic regression, we show that justices' decisions to change their votes stem primarily from strategic policy considerations. In limited instances, the decision to switch can be attributed to either uncertainty or institutional pressures. Our findings suggest that the decision of a justice to join an opinion results from more than his or her initial policy preferences; final votes are influenced as well by the politics of opinion writing.