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Lee Epstein
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Lee Epsteing Ethan A.H. Shepley Distinguished University Professor
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ON THE CAPACITY OF THE ROBERTS COURT TO GENERATE CONSEQUENTIAL PRECEDENT

Published in 2008. In the North Carolina Law Review 86: 1299-1332.
(Revised version of a paper presented at the North Carolina Law Review's Symposium on Precedent and the Roberts Court, 10.26.07.)

Lee Epstein
Barry Friedman
Nancy Staudt

Will the Roberts Court produce decisions of consequence in the foreseeable future? Or will its contributions be more modest? We address these questions not by reviewing the doctrine developed by the Court but rather by considering its capacity to generate important precedents.

That consideration centers on an account we have previously called "ideological diversity." To state it simply, the idea is that the greater the ideological homogeneity of the majority coalition, the higher the likelihood that it will produce a consequential, perhaps landmark, decision. As such, the account stands in marked contrast to more common approaches in the legal academy that see the nature of judicial rulings as a choice the justices consciously make regarding whether to be "minimal" or not. To us, most justices—including most on the Roberts Court—seek to generate decisions that advance their preferred view of the law. But their ability to do so is structured in no small part by the preferences of their colleagues in the majority coalition.

In what follows we explain our account and then move to several empirical tests of it. Finding that data drawn from the 1953 through 2004 terms support the idea that ideologically close majorities are more able to produce consequential decisions, we turn to the Roberts Court. In a nutshell, our analysis suggests that when five of its members coalesce—as they are so uniquely prone to do—the Roberts Court bears the hallmarks of an institution capable of producing dramatic decisions. On the other hand, unanimous decisions—also hardly rare events on this Court—are far less likely to generate consequential precedent.

Click here for the article (.pdf)

Click here for the data (Stata .dta file) (posted on 1.13.08). NOTE: We've revised this dataset in accord with the final version of the 2006 term U.S. Supreme Court Database and the final 2006 term Martin-Quinn ideal point estimates. As a result, there may be differences between the data posted here and the data reported in the article. We'll post a revised version of the paper soon.

For a related paper, click here.