The 'Odd Party Out' Theory of Certiorari
54 Pages Posted: 22 Jul 2020 Last revised: 16 Jun 2021
Date Written: February 12, 2020
How justices advance their ideological preferences is among the most well-studied aspects of the Supreme Court. In contrast, we explore how justices may discourage ideologically motivated behavior: granting cert petitions when there is a likelihood that ideological bias influenced the lower court. We theorize that cert is more likely when there is ideological distance between the parties and the lower court panel is ideologically distant to the losing side. In these cases, the party petitioning for cert becomes the “Odd Party Out,” which conveys information about the possibility of lower court bias. We test the theory using a new dataset of nearly 18,000 cert petitions that incorporates advocate and judge ideology. We find strong support: Cert is more likely when the petitioner—regardless of their ideology—is the ideological Odd Party Out. This provides evidence that justices may disregard their own ideological concerns and intervene against ideologically driven behavior in lower courts.
Keywords: Supreme Court, Certiorari, Judicial Behavior, Judicial Ideology, Political Ideology
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