The concept of issue salience has figured prominently in many studies of American political life. Long lines of research have taught us that both citizens and political elites may respond differently to issues that are salient to them than to those that are not. Yet analysts making such claims about elite actors face a fundamental problem that their counterparts in mass behavior do not: they cannot survey, say, members of the Supreme Court to ascertain those cases that are especially salient to the justices. Rather, scholars must rely on surrogates for issue salience-surrogates that are fraught with problems and that have led to disparate research results. Accordingly, we offer an alternative approach to measure issue salience for elite actors: the coverage the media affords to a given issue. We argue that this approach has substantial benefits over those employed in the past. Most notably, it provides a reproducible, valid, and transportable method of assessing whether the particular actors under investigation view an issue as salient or not. In making the case for our measure we focus on Supreme Court justices but we are sanguine about its applicability to other political actors

Measuring Issue Salience

Theory: Majority opinion assignments made by the Chief Justice of the Supreme Court can be accounted for with both organizational and attitudinal models of behavior. Hypotheses: The likelihood that the Chief assigns an opinion to a justice depends upon the importance of each case, the size of the initial majority coalition, the timing of the decision, and each justice's expertise, efficiency, workload, and policy preferences. Method: A discrete choice model is used to test a multivariate model of the assignments made by Chief Justice William Rehnquist. Results: Chief Justice Rehnquist's assignments are determined by the Court's organizational needs, rather than the Chief's policy preferences.

http://www.jstor.org/stable/pdfplus/2111631.pdf

May It Please the Chief? Opinion Assignments in the Rehnquist Court

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.

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/S0003055400207168

Strategic Policy Considerations and Voting Fluidity on the Burger Court

Supreme Court opinions contain legal rules with broad policy ramifications, and justices try to shape the substance of the Court's opinions. Despite this expectation, scholars have neither systematically measured nor explained the extent to which justices attempt to affect majority opinions. We articulate and test a model that explains how justices respond to majority opinion drafts. Our argument is that justices decide how to respond based on the effect a choice will have on securing their policy goals. The costs or benefits of a choice, moreover, are a function of strategic and contextual factors, including a justice's agreement with an opinion, the collaborative decision-making setting on the Court, case characteristics, and attributes of the justices. Our data analysis strongly supports our argument showing that, among other considerations, justices' responses result from their disagreement with an opinion, the author's prior level of cooperation with them, and the salience of a case.

Bargaining on the U.S. Supreme Court: Justices' Responses to Majority Opinion Drafts

Research on the U.S. Supreme Court suggests that judges' decisions are influenced by their policy preferences. Moreover, judges behave strategically to facilitate outcomes that conform as close as possible to those preferences. We seek to generalize this assertion to judicial actors in two very diverse social systems: Canada in the post-Charter years and apartheid-era South Africa. Specifically, we analyze the use of panel assignments by the chief justices in both countries. We find that chief justices do behave strategically. Chief justices in both countries do not assign judges to panels randomly but rather are influenced by the tenure and ideology of the sitting judges and the issues presented in the case. Studies of judicial decisionmaking over the last several decades have significantly increased our understanding of the behavior of the U.S. Supreme Court and the justices who compose it. In an attempt to increase our understanding of courts and of judging more broadly, there recently has been an emphasis on the expansion of comparative judicial research (Epstein 1999:1). Such an emphasis will allow scholars to develop truly generalizable theories of judicial decisionmaking that apply to courts beyond the borders of the United States. With this comparative focus in mind, we explore the primary assertions of previous research on appellate court behavior: Judges are affected by their policy preferences, and decisions are made that benefit those preferences. To test our assertions, we analyze the behavior of individuals in two appellate courts: the Supreme Court of Canada in the post-Charter years and the Appellate Division of the Supreme Court of the apartheid-era Republic of South Africa. More specifically, we focus on the behavior of the chief justices in panel assignments, exploring the role of tenure, issue, and ideology. Interest in panel assignments in the United States has been primarily confined to studies of the federal courts of appeal (the only federal courts to hear cases in panels) during the desegregation era. Several studies of possible influences on these assignments discovered that while assignments were thought to be random in most courts, in the Fifth Circuit at least, the chief justice appeared to be influenced by his policy preferences when assigning justices (Atkins & Zavoina 1974; Barrow & Walker 1988; Howard 1981). Further, scholars have suggested that while policy preferences may not have an impact in all courts, the panel assignment process could still be classified as nonrandom since considerations of seniority and expertise may influence chief justices (Howard 1981). Although work on panel assignments has been largely abandoned in recent years,1 research on the opinion assignments of U.S. Supreme Court chief justices can provide insight into possible influences on panel assignments as well. The opinion assignment literature has found differences among the chief justices. Thus, while Chief Justice Rehnquist has been found to consider workload factors most prominently (Maltzman & Wahlbeck 1996), earlier chief justices were found to consider their own policy preferences when making opinion assignments-those with similar preferences to the chief justice were more likely to be assigned an opinion (Segal & Spaeth 1993; Slotnick 1979a; Ulmer 1970). Other factors such as judicial expertise, efficiency, experience, and the importance of the case have also been suggested as possible influences by some of this literature (Brenner 1984; Maltzman & Wahlbeck 1996; Brenner and Hagle 1996; Slotnick 1979a). These factors inform our own study of panel assignments-the additional power held by chief justices in our countries of interest. Despite the decreased attention paid to the panel assignment decision in the United States in recent years, we believe this behavior has the potential to significantly affect the outcome of cases. Thus, the factors influencing the chief justice in his assignments need to be explored. …

Judicial Decisionmaking and the Use of Panels in the Canadian Supreme Court and the South African Appellate Division

The designation of the majority opinion writer is one of the major prerogatives of the Chief Justiceship for influencing the formulation of judicial policy. The limited research on opinion assignment has focused almost exclusively on the ideological aspects of assignment decisions. Data sets employed have been small and noncomparable. This paper empirically examines several concerns operating in opinion assignment decision making in addition to ideology. These include the "equality" principle, distribution of "important" cases, self-assignment patterns, and judicial experience. The data base consists of the universe of over a half a century of opinion assignments made by Chief Justices Taft through Burger.

Elliot E. Slotnick

Papers

Who Speaks for the Court? Majority Opinion Assignment from Taft to Burger