Justice Scalia’s Strategic Voting in Arizona v. Fulminante
Understanding how Supreme Court justices make decisions has long fascinated political scientists. While many analyses focus on the attitudinal model—the idea that justices simply vote for their preferred policy outcomes based on their ideological preferences—this approach misses a crucial dimension of judicial behavior. Sometimes justices engage in strategic behavior, making choices that may seem counterintuitive at first glance but serve larger tactical purposes.
Beyond Simple Preferences: Defining Strategic Behavior
The attitudinal model suggests that conservative justices consistently vote for conservative outcomes while liberal justices vote for liberal ones. Strategic behavior, however, is more complex. It involves justices voting against their immediate preferences in a particular case because they anticipate greater long-term gains. This requires sophisticated foresight—justices must predict how their colleagues will vote and consider how their own votes might influence the court’s ability to address broader legal questions.
Strategic behavior transforms the Supreme Court from a simple aggregation of individual preferences into a dynamic institution where justices play a multi-dimensional chess game, sometimes sacrificing pawns to capture more valuable pieces.
The Fulminante Case: A Perfect Example
Arizona v. Fulminante (1991) provides a compelling illustration of this strategic calculus. The case involved Oreste Fulminante, who confessed to murdering his stepdaughter while in prison. Fulminante claimed his confession was coerced by a fellow inmate who was actually an FBI informant offering protection in exchange for details about the crime.
When the case reached the Supreme Court, it presented three sequential questions:
- Was Fulminante’s confession coerced?
- If the confession was coerced, should courts apply “harmless error” analysis to determine whether the error affected the outcome?
- If harmless error analysis applies, was this particular error harmless?
The Scalia Surprise
Under a simple attitudinal model, Justice Antonin Scalia—a reliable conservative voice who typically favored prosecution-friendly positions—should have voted against Fulminante on all three issues. But Scalia didn’t follow this predictable path.
On the first question, Scalia joined four liberal justices in a 5-4 decision finding that the confession was indeed coerced (see Figure below). This vote seemed inconsistent with his usual pro-prosecution stance and appeared to hand a victory to the defense. A simple attitudinal model of decision making does not explain this voting line-up.
However, Scalia’s seemingly liberal vote on the coercion question allowed the Court to reach the second, more consequential question: whether harmless error analysis should apply to coerced confessions. Here, Scalia revealed his true strategy.
The Strategic Payoff
On the harmless error question, Scalia joined his four conservative colleagues in a historic 5-4 ruling. For the first time, the Supreme Court held that involuntary confessions could be subject to harmless error analysis—meaning that even if a confession was improperly obtained, a conviction could still stand if other evidence was sufficient to prove guilt.
This represented a seismic shift in criminal procedure law. Previously, coerced confessions were considered so fundamentally wrong that they required automatic reversal of convictions, regardless of other evidence. The new rule dramatically weakened protections against police coercion by allowing convictions to survive even when confessions were obtained through improper means.
Winning the War by Losing a Battle
The immediate outcome in Fulminante actually favored the defendant—the Court ultimately concluded that Arizona could not prove the coerced confession was harmless, so Fulminante’s conviction was overturned. Casual observers might code this as a “liberal” victory.
But this surface-level analysis misses the deeper strategic game. While liberals won this particular battle, they decisively lost the war. Scalia’s calculated vote on the coercion question enabled a fundamental change in constitutional law that would benefit prosecutors in countless future cases. By sacrificing his preferred outcome in one case, Scalia helped establish a precedent that would serve conservative interests for decades to come.
The Broader Lesson
The Fulminante case demonstrates that Supreme Court decision-making involves far more complexity than simple ideological voting. Justices must consider not just their preferences in individual cases, but also their strategic opportunities to shape legal doctrine more broadly. Sometimes the most effective way to advance a particular judicial philosophy is to accept short-term losses in service of long-term institutional change.
This strategic dimension adds richness to our understanding of the Supreme Court as a political institution. Rather than nine justices mechanically applying their ideological preferences, we see sophisticated actors engaged in multi-level strategic thinking about law, politics, and institutional development. For political scientists studying judicial behavior, cases like Fulminante remind us that the most interesting dynamics often lie beneath the surface of simple win-loss tallies.