The opinions Justice Scalia joined will start being treated worse, even if he is replaced by a like-minded Justice

|The Volokh Conspiracy |

A just-published paper (published version here, prepublication version here) by Georg Vanberg and me casts a different light on Justice Scalia's death: the majority opinions he joined will likely lose force now that he has left the Supreme Court. This phenomenon is not specific to Justice Scalia. We find that circuit court judges are more likely to criticize Supreme Court opinions and less likely to follow them as the Justices who joined the decision leave the Court. Importantly, we control for ideological change on the Supreme Court.

We rely on a unique dataset containing all the Shepard's citations to Supreme Court opinions from the 1953-2012 terms. Shepard's employs attorneys who engage in a content analysis of every citation in every federal and state court opinion. Citations that have a substantive treatment of an opinion (i.e., discuss it rather than just mentioning it) are classified into various negative (Criticized, Questioned, Limited, Distinguished), neutral (Explained, Harmonized), and positive (Followed) categories. (An earlier paper by Spriggs and Hansford investigated the reliability of Shepard's by independently coding a stratified sample of Supreme Court cases, and found high levels of agreement between their coding and Shepard's.)

We find that as departures reduce the number of Justices on the Court who joined a majority opinion, lower court judges become significantly less likely to follow the opinion, and more likely to treat it negatively and thus cast doubt on it. Notably, this effect is separate from the impact of judicial turnover on the general ideological position of the Court.

Our results are important because lower courts resolve the vast majority of federal cases—lower federal courts handle hundreds of thousands of cases each year, fewer than 100 of which are reviewed by the Supreme Court. Of course, lower courts are supposed to adjudicate disputes as directed by the relevant precedents, particularly those issued by the Supreme Court. But circuit courts know that the current Court is the one that will be reviewing them.

Why might circuit courts treat precedents in this manner? We discuss the phenomenon at some length in the article, but let me give a highly truncated form of the argument that builds on the point immediately above. Appeals court judges confront a complex task in applying a large number of potentially relevant precedents to the cases before them. As they do so, one key concern is to avoid censure by the current Supreme Court. In navigating this problem, lower court judges have strong incentives to look for simple heuristics that can help them to identify decisions that are more likely to have the support of the current Court (and should therefore be treated positively) and those less likely to enjoy such support (and can therefore be narrowly interpreted or ignored with less peril). While there are numerous such markers (which we control for), the departure of Justices who joined a decision constitutes a particularly prominent one that is easy to spot. A dwindling number of Justices who explicitly signed on to an opinion readily suggests that the opinion may enjoy less support on the current Court (beyond ideological change).

Our paper builds on others that focused on ideology, but our paper goes beyond ideology. For instance, Chad Westerland, Jeffrey Segal, Lee Epstein, Charles Cameron, and Scott Comparato found that increasing distance between the median member of the opinion coalition and the contemporary Supreme Court median significantly reduces circuit courts' compliance with Supreme Court precedents. And a paper I wrote with Bruce Desmarais found that, controlling for the size of a Supreme Court majority, cases with ideologically narrow coalitions are more likely to be treated negatively by later courts. That is, a 5-4 Supreme Court opinion in which, say, Scalia and Sotomayor were in the majority is less likely to be treated negatively than a 5-4 in which the majority coalition included five Justices who were closer to each other ideologically. We found that 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, establishing that an opinion author has an incentive to go beyond the four most ideologically proximate Justices in building a majority coalition.

This new paper highlights something different. As we note in our conclusion:

The Court sees itself as a continuing body, and of course it is. But for purposes of its precedents, each new Court (that is, after each retirement and replacement) is a new entity, and lower court judges are likely to react to the fact that Justices who joined a decision are no longer present. This implies that the significance of the replacement of one Justice by another extends beyond the impact on future decisions by the Supreme Court itself. Such a change also affects how existing case law is applied in the judicial hierarchy. If a Justice wants a precedent to retain force in the lower courts, she should remain on the Court, and encourage other members of the majority to remain as well.