The thrust of this research is to identify the circumstances under which the California Supreme Court is likely to declare a law unconstitutional. In order to identify these circumstances, the behavior of the California Supreme Court will be modeled using game theory. Specifically, the behavior of the California Supreme Court will be analyzed using an incomplete information game. In other words, the behavior of the California Supreme Court will be studied in a strategic fashion, as if the California Supreme Court is a rational and strategic actor. One of the effects of viewing the California Supreme Court in this matter is to declare that the institutions of the Court, and the institutions that exists around the Court, make a difference in the Court’s decisions.
For a lawyer arguing a case, the individual preferences of the judge making the decision matter in the outcome. A judicial scholar, studying judges in general, needs to determine when the preferences of the judge come into play, and when other things (stare decisis, institutions and legislative intent to name a few). Gibson notes that the decisions of judges are a function of what they “prefer to do, tempered by what they think they ought to do, but constrained by what they perceive is feasible to do” (1983, 7).
Determining how judges behave has been studied in two main approaches.
The attitudinal approach assumes that the focus is on the individual judge; that the personal values determine, to a significant degree, what the decision of a judge will be (Hall and Brace 1989, 391). This model assumes that the judges decide cases based on their personal ideological preferences and values, and are not constrained by outside actors (the Legislature, Congress, and the public to name a few) or internal restraints (Segal and Spaeth 2002, 86).
This is not the approach that this research takes. This research does not view the California Supreme Court as a group of individuals, where the preferences of the individual matter, but rather as an institution which makes decisions based on outside constraints. In fact, as this research will show, one of the most important constraints on judicial decision-making is whether or not the Court will have its decision overturned by other institutions. An approach, such as the attitudinal approach, which ignores the influence of other institutions, is not appropriate to model the research under.
Rather, the strategic approach is the model of judicial behavior which is used in this research. Judge Posner describes the role of the United States Supreme Court as a “political court” in which they have to accept certain limitations on their discretion…that they have to be seen as “doing law rather than doing politics” (Posner 2003). This description would suggest that the behavior of judges can be modeled strategically.
The strategic approach deals with what judges may feasibly do, or not do (Segal 2008, 20). This is because judges do not make decisions in isolation (id). Judges make decisions that may be overturned if other institutions feel that the decision goes too far, or is not the correct decision (i.e., the United States Supreme Court can have their decision overturned by Congress if Congress decides that the Court has not made a correct decision). If judicial policy making occurs for a period of time, or over a long period of time, the chanced for a reversal to occur are real (Cross 2005).
Epstein and Knight summarize the strategic approach to judicial decision-making:
Justices may be primarily seekers of legal policy, but they are not unconstrained actors who make decisions based only on their own ideological attitudes. Rather, justices are strategic actors who realize their ability to achieve their goals depends on a consideration of the preferences of other actors, the choices they expect others to make, and the institutional context in which they act. (1998, 10).
Most of the literature on the strategic approach can be traced to C. Herman Pritchett, who compiled an analysis of the United States Supreme Court Justices that was based on the understanding that a Justice is much like a Congressman – they vote on issues and enjoy substantial discretion in their decision making (Pritchett 1942, 491). Marks, in 1988, furthers this approach by formalizing the effects of constraints on the courts. Marks evaluated the potential of Congress to overturn a judicial decision, focusing on when Congress could not modify a Court decision.
One of the early results of the research that used the strategic approach was the finding that, if everything else is equal, Congress tends to obey Supreme Court judicial rulings (Gely and Spiller 1990). Gely and Spiller found that the explanation for this behavior is simple: As long as the Justices’ personal preferences were policy based, the Justices were better off selecting policy decisions that are reversal proof. Therefore, the Justices would de facto select positions that were reversal proof (id). Wahlbeck and his co-authors conducted an analysis which led them to conclude that Supreme Court justices are rational actors who pursue their policy goals within constraints (1999, 507). These are some examples of the research that has led to the conclusion that judges are strategic actors.
Another early finding about how judicial decision making, under the strategic model, is influenced by other institutions is that the Supreme Court can act strategically when engaging in statutory interpretation based on how organized Congress was at the time they made the statute, which will result in the use of legislative history by the Court (McNollgast, 1992;1994).
Spiller and Spitzer (1992) analyzed the decisions of the Court based on whether the decisions were made on Constitutional or non-constitutional grounds. This research was conducted using a strategic representation that included not only the Court, but other institutions: Congress, the President, state legislatures and agencies.
Tiller and Spiller (1999) also recognized the importance of other institutions on judicial decision-making by showing how lower courts can raise the cost of having their decisions overturned by a higher court to make reversal less likely. Cross and Tiller (1998) also use strategic analysis to show how increasing transaction costs forces appeals courts to act less along ideological or political lines and more along strategic lines.
Spiller and Tiller (1997) also looked at how Congress, specifically rather than institutions in general, influence the Court through manipulation of the decision-making process, mainly through cost-benefit implications, or by changing the standard of review a court must use in various cases; the Bumper Amendment of 1975 is one such situation.
As a result of the strategic approach, a basic understanding of judicial independence (and all that it means) has been expanding (Spiller 1996). In environments characterized by a strong and unified polity, attempts to exercise judicial independence will trigger political retaliation. When it is difficult for the polity to overturn or retaliate against the judiciary, a doctrine of judicial independence will naturally evolve.
As a result of this basic understanding of judicial independence, using the strategic approach, it follows that when it is easier for the legislature to override the court and when there is a dominant political party, the discretion of the courts is limited (Cooter and Ginsberg 1996). These results have been tested, and proven, across multiple countries. The courts show deference to political branches when the political environment is stable and unified. These findings are consistent with the strategic approach: Institutions, other than the court itself, plays a role in judicial decision-making.
Recent developments have shown that there are ranges in which the Court is constrained and ranges in which the Court is not (Spiller and Gely 1992). Bergara et al. (2003) found that the Court is often, but not always, constrained by Congress. They also found that when the Court is constrained by politics, it seems to respond strategically. Additionally, Stephenson (2003) was able to show, using the strategic approach, that a judiciary considers the behavior of others in its decisions and acts in a risk-adverse way.
Most of the study has been focused on those who study the behavior of the Supreme Court. However, this approach as also been applied to judges on the U.S. Court of Appeals and state Supreme Court Justices. Brace and Hall (1992; 1993) found that state Supreme Court Justices choose not to follow their ideological preferences in certain situations in anticipation of decisions by external actors and institutions. Therefore, the approach of this research will not be the first to use the strategic approach to analyze the judicial decision-making behavior of state Supreme Court Justices.
The strategic model accounts for forces other than personal preferences that influence judicial decision-making. The strategic model is rooted in the belief that judicial decision-making is a rational decision making process that can be modeled (Spiller P.T. and Gely R. 2008, 42).
Game theory can help political scientists study, and create model for action, of the way various actors, such as judges, make decisions. Game theory can be used to explain how decisions are interrelated, and how decisions are made. Game theory works as a way to formalize structures and possibilities to allow for study and modeling (Morrow 1994, 1-3). Game theory and the strategic model of judicial decision-making are well suited for each other. Both require an assumption of rationality and strategy (Morrow 1994, 7).
Game theory can provide models that will demonstrate under which circumstances justices on a constitutional court are likely to be constrained by strategic considerations and when this will not be the case (Carrubba 2000, Rogers 2001). This occurs by creating a model game that addresses legislative anticipation of judicial review, legislative reactions to judicial rulings and the political environment in which the court must act (Vanberg 2001).
Some of the most current game-theoretic models use games of complete information. These models, as games of complete information, require that all the players’ payoffs be common knowledge (Morrow 1994, 63). A payoff is the outcome which a player wishes to achieve (Morrow 1994, 61). The separation-of-powers game that models judicial decision-making in relation to the rest of the branches of government (Epstein and Walker 1995), is one of these perfect information games. Almost every step of this game requires that the judges have perfect and complete information about the preferences of Congress, especially in terms of Congress’ ideal law (Knight and Epstein 1996). The separation-of-powers game begins with the assumption that judges are interested in imposing their policy preferences on society. Then the game goes on to model judicial decision-making behavior that will allow the courts to reach as close as possible to their ideal point without being overturned by Congress (Spiller and Gely 1992).
Game theory in judicial decision-making studies is becoming more prominent. Perino (2005) has used game theory to model strategic decision-making in Federal District Courts. He uses evidence from securities fraud actions to prove his point. This research showed, using a linear decision model, that judicial decision-making is a function of the likelihood of appeal and reversal. Sala and Spriggs (2004) also used a game theory model – spatial voting model – to show where the attitudinal and separation-of-powers models of judicial behavior have diverged. Stanton (2006) uses a simultaneous equations model to show how case promotion is linked to judicial choice.
However, games that include judicial decision-making and the institutions involved are not complete information games where each player’s outcome is known to all the other players (Vanberg 2001, 348). Instead judicial decision-making of constitutional courts is modeled best by a game of incomplete and imperfect information (Vanberg 2001 and Rogers 2001).
An imperfect information game is one in which all the players do not know the desired payoffs for the other players. A player in this game has private information- their desired payoff - that remains private throughout the game, or until their last possible point of participation. However, throughout the game a player can signal their private information – the player’s desired payoff – through their moves (Morrow 1994, 219). In Vanberg’s imperfect information game, the imperfect information is that the Legislature does not know what type of court it is dealing with or the policy environment it is acting in, and the court does not know what type of policy environment it is acting in (Vanberg, 348).
Regardless of the model chosen, it is clear that the strategic approach to judicial decision making is a valid approach. From the authors and articles listed above, as well as those in the references (who have helped shape the ideas of others) it is apparent that the strategic approach has many benefits over the attitudinal approach. One benefit is the ability to consider outside actors and other institutions, and their influence on judicial decision-making. A second benefit is that the strategic approach assumes the courts are acting in a rational manner (supra) and thus their positions and choices during the judicial decision-making process can be modeled using game theory.
In a more comprehensive research proposal, this literature review would then lead to a discussion of the specific model that Vanberg proposed in his paper, and how that model applies and will be adapted to the California Supreme Court in order for the analysis to take place.
 See, Robertson v. Seattle Audubon Society, 112 S.Ct. 1407 (1992), concerning the constitutionality of a law overturning decisions by a district court applying the Endangered Species Act to Pacific Northwest logging and the spotted owl. The eleventh amendment overturned Chisholm v. Georgia, 2 Dall. (2 U.S.) 419 (1793). Constitution of the United States of America -- Analysis and Interpretation, S. Doc. 99-16, 99th Cong., 1st sess. (1987)(hereinafter Constitution Annotated) pp. 1427-1448. The fourteenth amendment overturned that part of Scott v. Sandford, 19 How. (60 U.S.) 393 (1857), which stated that national citizenship was derivative of state citizenship. Constitution Annotated, pp. 1467-1469. The sixteenth amendment overturned Pollock v. Farmers Loan & Trust Co., 157 U.S. 429, modified on rehearing, 158 U.S. 601 (1895), holding that income taxes on certain income were direct taxes and invalid because not apportioned. The nineteenth amendment conferred suffrage regardless of sex and thus overturned Minor v. Happersett, 21 Wall. (88 U.S.) 162 (1875), which had held that denial of the ballot to women did not violate the fourteenth amendment's privileges or immunities clause. The twenty-sixth amendment set aside the result in Oregon v. Mitchell, 400 U.S. 112 (1970), which had upheld a congressional reduction of the voting age in Federal elections but voided it for State elections. Constitution Annotated, p. 1881.
 De Figueiredo and Tiller (1996; 2000) show that Congress influences the courts through establishment of judgeships. Toma (1991; 1996) shows that Congress influences the courts through the budget appropriations in the same way that Congress influences executive agencies.
 See Epstein et al (2001) that shows when the political environment in Russia became more stable and unified, the Russian Constitutional Court showed more deference to the political branches: Garrett et al (1998( which identifies the conditions when member governments are likely to respond to the European Court of Justice: Ginsberg (2003) showed that when there is political uncertainty, judicial review is put into place to protect constitutional rights: and Ramseyer and Rasmusen (1997) who find that politicians in Japan seek to influence who is a judge so that their opinion of an “ideal judge” is conformed to.
 See Epstein and Knight 1998; Maltzman, Spriggs and Wahlbeck 2000; and all previous literature in this literature review.
 For example: Cross and Tiller 1998; Songer, Segal and Cameron 1994.
 For example: Hall and Brace 1992; Langer 1997.
 See Ferejohn and Weingast 1992; Clinton 1994; Epstein and Knight 1996; Barzilai and Sened 1997.