Priming Ideology? Electoral Cycles Without Electoral Incentives Among U.s. Judges
Abstract: Using a detailed, hand-coded, 5% random sample of U.S. Circuit Court cases from 1925 to 2002, we show that dissents, voting, and setting precedent along partisan lines, all double, and reversal rates of District Court decisions increase by 20% just before presidential elections. The changes in behavior are not attributable to shifts over the electoral cycle in case or litigant characteristics nor to shifts in characteristics of judges authoring or sitting on cases. Career concerns, getting-out-the-vote, and reputational capital are unlikely to explain these patterns. We propose a formal model of priming and find evidence consistent with the priming of political ideology. Behavioral changes are concentrated among judges sitting in electorally pivotal states and in media markets where campaign advertisements are greatest. Dissents by judges coincide with the monthly increase of campaign advertisements in their states of residence and with the closeness of their state’s popular vote when that state has more electoral votes. Ideologically polarized environments and inexperience magnify the effect of proximity to presidential elections, while wartime has a unifying effect, especially in polarized environments and among inexperienced judges. Dissents increase more on the topics of campaign advertisements and cite procedural rather than substantive reasons for dissent twice as often. Administrative case calendar data suggests that the decision to dissent occurs very late just before publication. Dissents peak three months before the presidential election during the presidential primaries when parties cater to more extreme ideologies, especially for states elevated in importance during the primary season. These electoral cycles replicate in a machine-coded universe from 1950 to 2007, impact Supreme Court caseload and development of law, and are larger than previously-documented electoral cycles among elected judges running for re-election.
