State Supreme Court Opinion Publication in the Context of Ideology and Electoral Incentives

Abstract

State and federal judges do not publish all of their decisions. In the federal courts, most opinions are unpublished and have no effect on precedent, raising concerns that publication could be used to shape the law for ideological or political ends. While the literature on opinion publication has found little evidence of strategic publication, almost all scholarship has focused on the federal courts. As most judges on state supreme courts must face some form of election, the electoral connection could have a distinct effect on publication. To test this possibility, I analyze all authored opinions by the Montana Supreme Court from 1998 to 2009 and find that both ideology and electoral incentives condition the likelihood of publication. Further, using just the criminal cases in the dataset to identify the ideological direction of decisions, I find that the interaction of ideology, the electoral calendar, and the degree of unanimity is particularly important in the decision to publish given a particular disposition. Whereas more conservative panels are more willing to publish unanimous conservative opinions as elections approach, such panels are less likely to publish non-unanimous liberal opinions when an election is imminent. This analysis provides evidence that elected judges publish strategically, a finding that has generally eluded literature on publication by federal judges, which might be due to the absence of electoral incentives in their retention.

Keywords: state supreme courts, unpublished opinions, publication, judicial politics, judicial elections, opinion

JEL Classification: K40