Strategic Concurrence: Causal Evidence from the Brazilian Supreme Court

A judge’s disagreement in a collegiate court is costly. Disagreement may be retaliated with analogous behavior in the future. A judge who always speaks his mind, frequently disagreeing with his colleagues even regarding minor subjects may have difficulty in getting them to cooperate with him in proposals he actually cares about. The collegiality cost of disagreement provides an incentive for judges to sometimes concur with the winning coalition even though they actually disagree with the substance of their ruling. When this happens, judges are engaging in strategic concurrence. Judges have several reasons to openly express their disagreement with the winning coalition’s ruling. One is to influence the court’s decision itself. If a plurality’s view hasn’t yet gathered support from a sufficient number of judges to decide the case, a judge’s disagreeing statement may be the focal point for a different, bigger plurality to coalesce. On the other hand, when a winning coalition has already been formed, a judge’s disagreement cannot play such role. Therefore, we should expect judges to concur more often when their own votes are inconsequential to the result. The Brazilian supreme court offers an ideal setting to test this hypothesis. Brazilian supreme court justices vote sequentially, so when it’s a given justice’s turn to vote he knows whether there already is a sufficient number of votes one way or another. He knows, that is, whether his vote is consequential or not. However, whether a justice’s vote is consequential or not is related to how controversial the case is. Moreover, justices may influence each other’s votes in the backstage. If a justice influences someone who votes before him in the voting order, he affects his own treatment status. Under these circumstances, comparing how often a justice concurs when his vote is consequential with when it’s not would give a biased estimate of the effect of inconsequentialness on concurrence. In order to get around this issue, in this work I use cancellations of flight inbound to Brasilia as an instrument for vote inconsequentialness. Flight cancellations increase the likelihood that a justice fails to attend deliberations. When that happens, the minimum number of justices required for a minimum winning coalition decreases, making it easier for such coalitions to be formed and, thus, increasing the likelihood of a justice being treated. My results show that vote inconsequentialness increases the likelihood of concurrence in about 48%. The instrumental variable design assures us the effect is causal. This is an evidence that justices engage in strategic concurrence. Whether they pursue their political or ideological preferences or aim to give force to their interpretation of the law, judges are strategic actors who sometimes put their opinions aside in order to avoid collegiality costs and improve their chances of fulfilling their goals on the long run.