Strategic Voting on the D.C. Circuit? : A Case Study of Challenges to Health-and-Safety Regulation

The article examines whether the ideological divisions on the United States Court of Appeals for the District of Columbia Circuit are affected by changes in the composition of political branches: the two houses of Congress and the Presidency. Thus, it seeks to empirically test the plausibility of positive political economy models of adjudication, which posit that judges act in an ideologically "strategic" manner. The data set developed for this study consists of all cases decided by the D.C. Circuit, between 1970 and 1996, challenging the health-and-safety decisions of twenty federal agencies. The empirical analysis undertaken here reveals strong, statistically significant evidence of ideological voting. Most strikingly, challengers seeking more stringent health-and-safety regulation prevailed in 50.3% of the cases before majority-Democratic panels but in only 27.8% of the cases before majority-Republican panels. This difference is significant at a 99% confidence level. There is no statistically significant evidence, however, that these ideological differences are affected by the party controlling the two chambers of Congress or the Presidency. The results can be interpreted in one of two ways. First, they might be seen as supporting the attitudinal model's view that the ideological voting on the D.C. Circuit is sincere, rather than strategic. Second, it is possible that the judges are in fact voting strategically, but that they believe that the possibility of legislative reversal is so small that their interests would not be furthered by departing from sincere ideological voting. Under this account, judges act in what might be termed a "super-strategic" manner: they pay attention to the possibility that Congress will thwart their ideological interests but at the same time understand that the probability of reversal is small. Either way, the empirical findings have important relevance for the understanding of the administrative state. For example, under either interpretation judicial review of administrative action does not bring administrative preferences closer to the current congressional majorities, as posited in the strategic models