We examine how the Supreme Court uses signals and indices from lower courts to determine which cases to review. In our game theoretic model, a higher court cues from publicly observable case facts, the known preferences of a lower court and its derision. The lower court attempts to enforce its own preferences, exploiting ambiguity in cases' fact patterns. In equilibrium, a conservative higher court declines to review conservative decisions from lower courts regardless of the facts of die case or the relative ideology of the judges. But a conservative higher court probabilistically reviews liberal decisions, with the "audit rate" tied to observable facts and the ideology of the lower court judge. We derive comparative static results and rest them with a random sample of search-and-seizure cases appealed to the Burger Court between 1972 and 1986. The evidence broadly supports the model.
Published in American Political Science Review, Volume 94, Issue 1, 2000, pages 101-116.
© 2000 by Cambridge University Press