Date of Award

Spring 1-1-2011

Document Type


Degree Name

Doctor of Philosophy (PhD)


Political Science

First Advisor

Vanessa Anne Baird

Second Advisor

John Paul McIver

Third Advisor

E. S. Adler


This thesis explores tools used by federal lower court judges when deciding cases in the face of divergent political preferences. I show that judges make use of procedural "outs," doctrines to do with judicial power, as a means of dealing with political conflict. This manifests both as a response to collegial conflict, allowing judges to come to agreement on a single opinion, and also as a response to hierarchical conflict, allowing lower court judges to assert power over the policy agendas of higher court judges by limiting issues before the court. Analysis of behavior in appellate panels supports the theory that judges avoid ideological conflict with colleagues by writing procedural decisions instead of reaching the substantive issues in the case. Thus, appellate panels with a wide range of ideological views more often refuse to reach the merits of a dispute than ideologically aligned panels. This avoidance behavior leads to opinions based in procedural law. These findings indicate that procedural law plays an important role in collegial court decision making by allowing judges with conflicting political preferences to resolve disputes in a way that sidesteps conflict. Further, district court judges sitting beneath ideologically "hostile" appellate courts are far more likely to render narrow "procedural" decisions that sidestep the substantive issues posed by a case than district court judges who are ideologically aligned with the relevant appellate circuit. This behavior has consequences for the availability of issues to higher courts as appellate judges will generally refrain from reaching the merits of a dispute unless the district court has already done so. In sum, then, this thesis provides empirical support for the idea that political conflict may lead to one form of judicial minimalism; however, such conflict may also account for incoherence and inconsistencies in the application of the rules about judicial power. Overall, a goal of this thesis is to begin to explain the complex set of forces that govern the content of opinions rather than maintaining a hard focus on outcomes alone.