UC San Diego

Federal judges are constrained by their need to maintain legitimacy. To this end, numerous formal and informal institutions structure how they perform their duties. Obeying these generally applicable rules allows judges to demonstrate fealty to a higher principle operating above the concerns of partisan politics. This dissertation examines how judges work within this system to pursue their preferences, sometimes using judicial tools to circumvent the constraints and sometimes using the constraints themselves to advance their goals. The first two essays examine the use of dissents from denial of rehearing en banc (DDRs) in the federal courts of appeals. DDRs are voluntary, published, non-precedential opinions criticizing the circuit court for choosing not to rehear a case. The first chapter uses an original dataset of every DDR from the courts of appeals from 1969 to 2012 (nearly 1000 cases) to test the impact of a DDR author's ideology on the signal of cert-worthiness it provides to litigants and the Supreme Court. I find that litigants treat a DDR as a strong signal they should seek certiorari regardless of its author's ideology, but the Supreme Court has been much more inclined to grant certiorari when the DDR author is ideologically conservative. The second chapter assesses political polarization in the courts of appeals by looking at DDR coalition data from 1943 to 2012 (nearly 1300 DDRs). I find that many circuits use DDRs in a polarized fashion, the polarization increased markedly in the 1980s, and the polarization is largely attributable to appointing presidents. The third chapter examines how Supreme Court justices use the institutional requirement that they support their decisions through the citation of relevant precedent to enhance the Court's legitimacy. Using Fowler et al.'s (2007) measure of precedent centrality I test the hypothesis that the Court cites more authoritative precedent in cases that might cause the public to question its legitimacy. The data indicate that in these situations -- departures from governing case law, actions particularly salient to the public, and direct challenges to the actions of the coordinate branches -- the Court's decisions cite more authoritative case law to support its holdings