Friendly Precedent

This Essay explores which legal precedent judges choose to support their decision. When describing the legal landscape in a written opinion, which precedent do judges gravitate toward? We examine the idea that judges will gravitate toward citing “friendly” precedent. A friendly precedent, here, is one that was delivered by Supreme Court judges who have similar political preferences to the deciding judge. In this Essay, we test whether a federal Court of Appeals panel is more likely to engage with binding Supreme Court precedent when the political flavor of that precedent is aligned with the political composition of the panel.

We construct a unique dataset of 591,936 citations to United States Supreme Court decisions by the federal Court of Appeals in 127,668 unanimous decisions from 1971-2007. We find that judges gravitate toward friendly precedent. The political composition of a panel consistently influences which binding precedent is cited in the written opinion. All-Republican appointed panels gravitate toward the most conservative precedent; all-Democratic appointed panels gravitate toward the most liberal precedent and unfavorably cite the most conservative precedent. This result is notable because it provides strong evidence that judges, when reasoning their decisions, have different conceptions of binding precedent.