POLICY PREFERENCES OF JUSTICES AND PRESIDENTS

Focusing on the issue of civil rights, this study examines the relationship between policy preferences of presidents and the votes of the Supreme Court justices they appointed. Through content analysis of presidential statements, relatively systematic measures of civil rights policy views for five recent presidents were obtained and compared with the voting records on civil rights of justices they appointed to the Supreme Court. The findings suggest that although a correspondence exists between presidential preferences and judicial votes, presidents have been only moderately successful in appointing justices whose votes reflect presidential preferences.     

The Role of Case Complexity in Judicial Decision Making

The literature on ideology and decision making offers conflicting expectations about how judges' ideology should affect their votes in cases that raise many legal issues. Using cases from the U.S. courts of appeals, I examine the strength of ideology as a predictor of sincere voting in single and multi‐issue cases, and test whether the same effect for ideology can be seen for liberal and conservative judges. For all judges, ideology yields a larger effect as the number of issues increases; however, conservative judges are much more likely than liberal judges to cast sincere votes at all levels of complexity.     

<Emphasis Type="Bold">Originalism</Emphasis><Emphasis Type="Bold">, Pragmatic Conservatism,and Living Document Judicial Philosophies: Explaining Variation in U.S. Supreme Court Votes in Criminal Procedure Cases for the 1994–2014 Terms of Court</Emphasis>

Prior research on U.S. Supreme Court justice votes and case outcomes has examined a variety of hypotheses to explain variation in voting and case decisions in criminal procedure matters. Largely ignored by prior work, however, is the notion that the effects of the measures used to examine these prior hypotheses may vary for the justices based on the judicial philosophy espoused and followed by the justice. This article identifies three distinct overarching judicial philosophies of law interpretation that have guided the justices for much of the Rehnquist Court and the entirety of the Roberts Court: Originalism, Pragmatic Conservatism, and Living Document. It contextualizes the Information, Affected Groups, and Legal Issue hypotheses in a framework that considers their potential effects across Originalist, Pragmatic Conservative, and Living Document justices on the Court for the 1994 through 2014 terms. The study finds that enhanced activity by special interest organizations (the Affected Groups Hypothesis) in support of the non-government other party impacts vote direction among Pragmatic Conservative and Living Document justices but not for the Originalist justices. It also finds more case type (Legal Issue) effects for Originalist justices than for Pragmatic Conservative and Living Document justices in that for Originalist justices a vote for the government is less likely in cases that concern statutory meaning (relative to constitutional meaning). Implications are discussed.     

U.S. Supreme Court Decision Making, Case Salience, and the Attitudinal Model

Does case salience condition the role of ideological preferences in the decisions of U.S. Supreme Court justices? Does the attitudinal model of judicial behavior hold equally true in high salience and low salience cases? In this article, we analyze the role of case salience as a moderating influence on the explanatory capacity of the attitudinal model and test the strength of the model in high salience versus low salience contexts. Using civil rights votes during forty‐seven Supreme Court terms, from 1953 through 2000, we find that the attitudinal model is sensitive to case salience and that justices rely significantly more on ideological preferences when deciding high salience cases than low salience ones. Our findings represent an important qualification to the attitudinal model.     

Judicial Independence: Evidence from a Natural Experiment

In this article, we directly test the presence of judicial independence by examining judicial recess appointees who have later been confirmed by the Senate to full‐time Article III judicial positions. Specifically, we compare the votes of recess‐appointed courts of appeals judges during their temporary appointment tenure with a similar period following Senate confirmation. We find substantial differences in pre‐ and postconfirmation voting, suggesting that the structural protections of the Constitution provide judges a certain amount of independence.     

Does Chevron Matter?

In this article we evaluate whether the Supreme Court's much-discussed decision in Chevron v Natural Resources Defense Council (1984) signaled a lasting difference in how the justices decide administrative law cases, by comparing and testing the predictions of three distinct theories of Supreme Court behavior. The legal model predicts an increase in deference to administrative agencies. This prediction is shared by the jurisprudential regime model, which also predicts that the justices evaluate key case factors differently before and after Chevron . The attitudinal model predicts no change in the justices' behavior as a result of Chevron . Although we find that attitudes matter, the fact that we also find support for the legal and jurisprudential regime models undermines the assertion of the attitudinal model that law cannot explain Supreme Court votes on the merits.     

The Influence of Jurisprudential Considerations on Supreme Court Decisionmaking: A Study of Conflict Cases

In this study, we assess the impact of attitudinal and jurisprudential factors on the Supreme Court's resolution of intercircuit conflicts. In doing so, we depart from earlier efforts to assess the impact of legal factors that conceptualize law as an external constraint. Instead, we view jurisprudential considerations in terms of the justices' efforts to adopt the most legally persuasive position in light of accepted methods of legal reasoning. Our analyses reveal that the justices are (1) more likely to follow the reasoning process adopted by the majority of circuits involved in the conflict, (2) less likely to adopt the conflict position marred by contrary dissents and concurrences in the circuit court opinions, and (3) more likely to adopt the conflict position endorsed by prestigious circuit court judges. Our findings suggest that jurisprudential considerations, as well as attitudinal concerns, affect the justices' decisionmaking processes in a substantial minority of cases.     

Passing and Strategic Voting on the U.S. Supreme Court

Analyzing strategic aspects of judicial decisionmaking is an important element in understanding how law develops. In this article, we examine sophisticated voting on the U.S. Supreme Court by empirically modeling justices' decisions to pass when it is their turn to vote during conference discussions. We argue that, due to the opinion assignment norm, the chief justice may pass when one of the key conditions necessary for sophisticated voting—certainty about the views held by other justices and the agenda—is lacking. By passing, the chief can view his colleagues' votes in order to determine which vote will allow him to assign the majority opinion and, ultimately, forward his policy preferences. Using data from Justice Lewis F. Powell's conference notes, we show that the chief passes for this purpose, and that doing so is an effective strategy. In addition, we show that the senior associate justice in a case, who has a nontrivial chance of assigning the majority opinion, also passes for strategic reasons. As we expect, the data indicate that the remaining associates seem not to pass for strategic purposes.     

Judicial Decisionmaking and the Use of Panels in the Canadian Supreme Court and the South African Appellate Division

Research on the U.S. Supreme Court suggests that judges' decisions are influenced by their policy preferences. Moreover, judges behave strategically to facilitate outcomes that conform as close as possible to those preferences. We seek to generalize this assertion to judicial actors in two very diverse social systems: Canada in the post-Charter years and apartheid-era South Africa. Specifically, we analyze the use of panel assignments by the chief justices in both countries. We find that chief justices do behave strategically. Chief justices in both countries do not assign judges to panels randomly but rather are influenced by the tenure and ideology of the sitting judges and the issues presented in the case.     

Effects of the dynamite charge on the deliberations of deadlocked mock juries

When juries report that they are deadlocked, judges often deliver the dynamite charge, a supplemental instruction that urges jurors to rethink their views in an effort to reach a unanimous verdict. The present study evaluated the impact of this procedure on 378 subjects who participated in 63 deadlocked mock juries. Results indicated that the dynamite charge caused jurors in the voting minority to feel coerced and change their votes, reduced the pressure felt by those in the majority, and hastened the deliberation process in juries that favored conviction. These findings raise serious questions concerning the use of this controversial charge.     

Friends You Can Trust: A Signaling Theory of Interest Group Litigation Before the U.S. Supreme Court

How do interest groups influence U.S. Supreme Court justices to vote in favor of their preferred outcomes? Following prior research on the influence of the Solicitor General, we develop and expand on the signaling theory of interest group influence via amicus curie briefs. We argue that an interest group's ideological reputation and the nature of the ideological signal it sends in its brief both function as powerful heuristics that convey information to the justices depending on the justices' own ideological preferences. When an organization files an amicus brief advocating for an outcome seemingly contrary to its traditional preferences (i.e., an unexpected signal), this signal should be more noticeable and credible than a signal in accordance with a group's conventional views (i.e., an expected signal). However, unexpected signals should have greater influence on justices who share the brief filer's preferences. We test our signaling theory on the terms from 1991 through 2002. We find that unexpected signals (but not expected signals) are associated with Supreme Court voting, and the influence of unexpected signals appears to be particularly strong among justices who share the ideological preferences of the brief filer.     

Political Trust and Judicial Retention Elections

Retention elections are that part of the merit selection plan designed to hold judges accountable to the public. While more than one scholar has concluded that votes cast in a retention election are often not informed evaluations of the judge's qualifications and/or conduct on the bench, the few existing systematic empirical studies have failed to explain why people vote for or against retention. This study fills part of this void by testing the hypothesis that political trust is a major cue in judicial retention voting. In contrast to most previous work which was either limited to the appellate level or to elections in a single state, the data set consists of 1,864 retention elections held from 1964 through 1984 for major trial court judges. The national trends in political trust in the last two decades are found to be reflected in the trends in the mean vote for retention.     

Party Unity in the Swiss Parliament: The Electoral Connection

This study investigates the connection between legislative and electoral politics in Switzerland. The authors postulate that party unity is higher in an election year, and more specifically in votes on issues that are important for the party platform and that are of greater visibility to voters. The authors analyse the entire voting record of the Swiss parliament (lower house) on legislative acts between 1996 and 2007, which consists of roll call votes as well as unpublished votes. The authors find a strong effect of elections on voting unity among certain parties, and also find encouraging support for the hypotheses that this effect is mediated by the visibility of the vote and related issue salience.     

Free Vote Patterns in the New South Wales State Parliament

This research note examines patterns of MPs’ voting behaviour during ‘conscience’ or ‘free’ votes on three ‘morality politics’ issues in the lower house of the New South Wales state parliament in Australia: adoption rights for gay couples; scientists’ use of therapeutic cloning; and the status of the Sydney Medically Supervised Injection Centre. First, the research note reviews the literature on conscience voting and hypothesises that party will be the main predictor of voting patterns, but also establishes that previous studies have almost exclusively focused on national legislatures. Next the research note discusses methodological issues. Third, it presents the analysis of free vote patterns in the New South Wales parliament on the three ‘morality politics’ issues, along four key variables: party; sex; social ideology; and religion. The analysis of voting in the New South Wales parliament challenges existing explanations of free voting, where party is the key predictor of voting patterns. Intra-party unity figures show that party membership is a weaker predictor of voting behaviour in the two main political parties in New South Wales than in either the Australian parliament or in overseas parliaments. It is argued that at the subnational level other factors are more important in explanations of free vote patterns.     

Deciding Not to Decide: The Politics of Recusals on the U.S. Supreme Court

When are U.S. Supreme Court justices more likely to recuse themselves from cases? This article proposes a strategic model of recusal behavior, hypothesizing that the justices balance statutory guidelines concerning recusals against other policy and institutional goals. Using data from the Supreme Court Database, I find evidence that recusal behavior is influenced by a combination of statutory, policy, and institutional considerations. Consistent with statutory explanations, which emphasize the elimination of bias or its appearance, justices are more likely to recuse themselves from cases when business interests are before the Court, when they have served for shorter terms, and when they have previously acted as Solicitor General. However, I also find that the justices are less likely to recuse themselves when cases are likely to be close or when the justices' policy goals are likely to be advanced by participating. These findings suggest that while the justices do follow statutory recusal guidelines, they also have other institutional and policy incentives that lead them to participate in cases despite their conflicts of interest.     

The dynamite charge

When juries report they are deadlocked, judges may deliver a supplemental instruction known as thedynamite charge which urges jurors to reexamine their views in an effort to reach a unamimous verdict. To examine the impact of this instruction, 72 mock jurors were led to believe they were participating in a controlled deliberation by voting and passing notes. Subjects were randomly assigned to the majority or minority faction of a 3-to-1 split. After the third round of deliberation, half the subjects received the dynamite charge, half did not. Results provided support for the hypothesis that the dynamite charge causes jurors in the minority to feel coerced and to change their votes and encourages those in the majority to exert increasing amounts of social pressure. These findings are discussed for their practical implications, limitations, and directions for further research.We would like to thank Rebecca Buchanan and Craig Gangi for their role as experimenters in a pilot study.     

Party Pressure in the U.S. State Legislatures

We extend Ansolabehere, Snyder, and Stewart's (2001) method of measuring party influence over roll‐call voting to the comparative state legislative context. Examining 27 state lower chambers, we find that overall parties exert detectable influence on 44% of all roll calls and 69% of close votes, but that the incidence of party influence varies strongly across chambers. Taking advantage of the comparative leverage the state context brings, we find that party influence responds significantly to measures of legislative careerism and state socioeconomic diversity, with majority size playing some role. The effect of preference polarization is complicated and conditioned by challenges facing the legislature, and we find results both challenging and conditionally supporting the conditional party government account.     

Lawyers,Justices, and Issue Salience: When and How Do Legal Arguments Affect the U.S. Supreme Court?

A good deal of scholarly evidence suggests that the decisionmaking of the U.S. Supreme Court is affected by legal argument. At the same time, it seems clear that in a great many cases the justices have enduring, strongly held views. In such cases, they should be impervious to the effects of advocacy. When are the justices apt to be influenced by the Court's legal community, and when will lawyers be less relevant? The answer, we think, has to do with the salience of the issue before the Court. We suspect that in nonsalient cases the justices have less‐intense preferences and therefore are open to the persuasion of lawyers. In salient cases, by contrast, the content of legal policy matters much more to the justices. As a result, they are less amenable to legal argument and adhere more strictly to their personal policy preferences. Our empirical tests support this orientation.     

After Enlargement: Voting Patterns in the Sixth European Parliament

We examined how voting behavior in the European Parliament changed after the European Union added ten new member‐states in 2004. Using roll‐call votes, we compared voting behavior in the first half of the Sixth European Parliament (July 2004‐December 2006) with voting behavior in the previous Parliament (1999–2004). We looked at party cohesion, coalition formation, and the spatial map of voting by members of the European Parliament. We found stable levels of party cohesion and interparty coalitions that formed mainly around the left‐right dimension. Ideological distance between parties was the strongest predictor of coalition preferences. Overall, the enlargement of the European Union in 2004 did not change the way politics works inside the European Parliament. We also looked at the specific case of the controversial Services Directive and found that ideology remained the main predictor of voting behavior, although nationality also played a role.