Lower Court Defiance of (Compliance with) the U.S. Supreme Court

Abstract

Why do lower courts defy (comply with) higher courts? To address this question, we assess two distinct and, to some extent, competing theoretical accounts. The first, suggested by prominent law professors, is a model based on the theory of teams, which assumes a shared conception of the judicial role. The other is a principal-agent model that assumes heterogeneous policy preferences among judges and examines the incentives and opportunities created by various institutional features of the modern judicial hierarchy. So that their will be no mystery about it, we find that the answer lies neither exclusively in team theory nor in the agency model but rather in the intersection between the two: lower court judges engage in dynamic hierarchical interpretation, that is, they are far more attentive to the sitting Supreme Court than to their own ideological preferences or even to the Supreme Court that enacted the precedent. This finding, as we sketch at the end of the paper, has important implications for the study of higher and lower courts.