chapter  10
19 Pages

Bargaining and Opinion Writing on the U.S. Supreme Court: Tom S. Clark

WithCourt TOM S . CLARK

One of the most widely studied phenomena in judicial politics is the process of bargaining and opinion writing at the U.S. Supreme Court. This research is often concerned with how the institutional structures of the Supreme Court give rise to different patterns of interaction among the justices. For example, how does the rule that an opinion only has precedential value if endorsed by a majority of the justices affect the way in which different justices bargain with each other? How does the requirement that only four justices must agree to hear a case shape the way justices can pursue their policy goals? Does this affect their decisions about which cases they will agree to hear? It is on these types of dynamics that scholarship on collegiality has focused most intensely. This chapter outlines the terms of the literature as it currently stands and then suggests a few avenues for future research. I begin by outlining a basic description of the bargaining process on the Supreme Court. While I do not give each step a complete treatment, I do focus in particular on what I consider critical steps in the bargaining process. Next, I provide a critical overview of the various theories that dominate the literature; then I describe the empirical approaches that have been developed for evaluating those theories and the support for each of the various models. In the final section of this chapter, I offer my own thoughts about how the study of collegiality and bargaining on the Supreme Court can, and should, move forward.