| When the U.S. Supreme Court issues an opinion, it must decide not only who wins or loses, but what legal rule justifies the result. As political scientists now recognize, the legal rule, which defines legal and illegal conduct and provides guidelines for the subsequent behavior of other political actors, is at the heart of judicial policy-making. What has been overlooked is that the justices are presented with a menu of legal rules by case participants from which they make their selections. My dissertation examines how the justices choose among these options. I posit that the justices will select the rule that comports best with their ideological preferences, the amount of discretion they wish to provide to lower courts, and the quality of the rule. To test my theory, I rely upon a new dataset of all the rules suggested to and adopted by the justices in 500 cases from 1954-2002. I find first that the justices almost always favor a rule suggested by a litigant, rarely adopting rules offered by interest groups or developing rules on their own initiative. When they select between litigant rules, the justices do seem to favor those rules that are in closer proximity to their own ideological preferences, are of higher legal quality, and provide lower courts with more flexibility in implementation. I also examine those cases in which the justices did not favor the rule of a litigant or raise a rule on their own accord. The rule choices in the former cases appear to be motivated by the same factors that influence most rule selections, but the latter may be the result of the type of case at issue, rather than any insufficiency of the proffered rules. As the first study of the actual legal rules presented to and adopted by the justices, the project highlights that the rule options suggested to the justices are key to the policy the high Court eventually promulgates. |
