Strategic Auditing in a Political Hierarchy: An Informational Model of the Supreme Court's Certiorari Decisions

TLDR

The study investigates how the Supreme Court selects cases for review based on signals and indices from lower courts. A game‑theoretic model is used in which the higher court cues from publicly observable facts, the lower court’s known preferences, and its decision, while the lower court exploits ambiguity to enforce its own preferences; comparative‑static results are derived and tested on a sample of search‑and‑seizure cases. In equilibrium, a conservative higher court rejects conservative lower‑court decisions regardless of facts or ideology, but probabilistically reviews liberal decisions, with audit rates linked to observable facts and lower‑court judge ideology; empirical evidence broadly supports this pattern.

Abstract

We examine how the Supreme Court uses signals and indices from lower courts to determine which cases to review. In our game theoretic model, a higher court cues from publicly observable case facts, the known preferences of a lower court, and its decision. The lower court attempts to enforce its own preferences, exploiting ambiguity in cases' fact patterns. In equilibrium, a conservative higher court declines to review conservative decisions from lower courts regardless of the facts of the case or the relative ideology of the judges. But a conservative higher court probabilistically reviews liberal decisions, with the “audit rate” tied, to observable facts and the ideology of the lower court judge. We derive comparative static results and test them with a random sample of search-and-seizure cases appealed to the Burger Court between 1972 and 1986. The evidence broadly supports the model.