Investigating the 'Puzzle of Compliance': An Assessment of the Impact of Supreme Court Reversal on Circuit Court Judges' Voting Behavior

Abstract

The application of principal-agent theory to the American federal judicial hierarchy yields a mystery: why are the U.S. Courts of Appeals, the agents, so faithful to the preferences of the U.S. Supreme Court, their principal, when the Supreme Court lacks the tools principals typically utilize to incentivize compliance on the part of their agents? This question is known as the “puzzle of compliance.” One oft-proposed solution to the puzzle of compliance is that circuit court judges comply with the Supreme Court’s preferences out of a desire to avoid high court reversal. To investigate the merits of this proposed explanation, I study whether the votes of circuit court judges in ideologically charged cases became more conservative following Justice Sandra Day O’Connor’s retirement from the Supreme Court—a retirement which shifted the ideology of the Supreme Court further to the right and thus made conservative circuit court decisions less prone to reversal and made liberal circuit court decisions more prone to reversal. I also interview three current circuit court judges. I find that, though there are indeed costs that circuit court judges incur when the Supreme Court reverses their decisions, circuit court judges did not become statistically significantly more conservative following O’Connor’s retirement, suggesting that, at least in ideologically charged cases that do not involve responding to changes in Supreme Court doctrine, the threat of Supreme Court reversal may not be a significant factor in circuit court judges’ decision-making.