The winner of the 2015 Corwin prize for the best dissertation in public law is Matthew Hitt’s “Judgment-Rationale Inconsistency in the US Supreme Court.” Matthew Hitt advances an elegant theory that considers an important aspect of Supreme Court decision making with ramifications beyond the Court, one that frustrates many political scientists and lawyers: the plurality decision, or, in Hitt’s language, incidences of judgment-rationale inconsistency. Conducting rigorous and methodologically sophisticated tests of results from formal modeling, Hitt explores what drives judgment-rationale inconsistency, the slippage between outcome vote and rationale that emerges when there exists no opinion on which a majority of justices agree. In the strongest form of rationale inconsistency, the “discursive dilemma,” the opinions offered by the members of the majority are not only joined by fewer than a majority, but are also logically inconsistent with each other. Social choice theorists of judicial hierarchies have long thought that such dilemmas must have important consequences for strategic docket management, as well as the precedential value or systemic legitimacy of a decision. Taking the strong formal results about the inevitability of inconsistency in group decision making and applying it to a careful empirical analysis of the Court breaks new ground and offers to bring together empirical political scientists who pore over citations, and legal scholars who pore over the reasoning of particular opinions. Hitt asks how much of a pathology judgment-rationale inconsistency really is for the legitimacy of the rule of law in an advanced legal system, and whether it is getting worse over time. His findings suggest that such inconsistency, at least in its strongest form (the discursive dilemma), has significant negative impact on the precedential value of a decision and presumably the legitimacy of the Court issuing it. But, if this is pathology, it is one that has remained remarkably consistent over time and may be intrinsic in judicial hierarchies that are tasked with resolving politically contentious issues. Hitt’s careful combination of opinion analysis, memo analysis from the archives, and statistical analysis of citations, shows the Justices both as strategic actors aware of institutional pressure to resolve politically-charged conflicts and discursive guardians that care deeply about the doctrines that emerge along with those outcomes. Indeed, according to Hitt, Justices regularly wound their own side in a policy conflict in order to protect a discursive position relevant to future cases. Hitt also helps us better appreciate those occasions, as in this past term’s dramatic Oberfell v. Hodges decision on same- sex marriage, when the majority signs onto a single opinion with no concurrences, despite what the oral argument suggested were significant differences on the doctrinal basis for the decision. Hitt’s ability to predict the circumstances under which the Court reaches out to decide cases despite the risk of discursive paradox is certain to launch a good deal of new research by both political scientists and Supreme Court legal scholars, but it also speaks in important ways to many other fields within law and courts by encouraging us to place political salience, legal discursive meaning, and systemic legitimacy into a common analysis.
Jonathan Simon, University of California, Berkeley
Sara Benesh, University of Wisconsin, Milwaukee
Ronald Kahn, Oberlin College
Recipient: Matthew Hitt
Dissertation: “Judgment-rationale inconsistency in the U.S. Supreme Court,” Ohio State University