Judicial Perceptions of Voting Fluidity on State Supreme Courts

Abstract

Changes in individual judges' votes regarding the proper outcome of a case before release of the court's final opinion, called judicial voting fluidity, are often seen as being driven by ideology but constrained by contextual and institutional considerations. Judges' own views of this matter have been largely neglected. Interviews of eighty-one justices sitting on thirty-five state supreme courts reveal that judges typically play substantial roles in each other's decision making. Voting fluidity is widespread and not uncommon, as is fluidity in the language of opinions. Although these judges do seek majority coalitions, their explanations of voting fluidity do not reveal strategic calculations driven by ideological preferences, but primarily show deference to other judges who possess superior legal expertise relevant to the case. These findings suggest limits to the ability of ideology to explain voting fluidity and call for greater consideration of small-group dynamics in models of judicial decision making.