Modeling Supreme Court Strategic Decision Making: The Congressional Constraint

This paper addresses the contradictory results obtained by Segal (1997) and Spiller and Gely (1992) concerning the impact of institutional constraints on the U.S. Supreme Court's decision making. By adapting the Spiller and Gely maximum likelihood model to the Segal dataset, we find support for the hypothesis that the Court adjusts its decisions to presidential and congressional preferences. Data from 1947 to 1992 indicate that the average probability of the Court being constrained has been approximately one‐third. Further, we show that the results obtained by Segal are the product of biases introduced by a misspecified econometric model. We also discuss how our estimation highlights the usefulness of Krehbiel's model of legislative decision making.     

Restraining the Court: Assessing Accounts of Congressional Attempts to Limit Supreme Court Authority

We propose a multilevel account of legislative Court curbing in order to assess existing explanations as to why such proposals come about. We argue that although Court curbing is commonly seen as the result of institutional conflict between Congress and the Supreme Court, it is best understood as a product of three interrelated factors: the individual motivations on the part of lawmakers, the partisan context in which they operate, and institutional disagreements between Court and legislature. We find evidence that micro‐level factors offer an important insight into Court curbing that institution‐focused explanations alone cannot.     

最高人民法院裁判、司法解释的法律地位

本文结合审判实践详细分析了最高人民法院司法解释的各种类型及其相应的法律地位,并从对最高人民法院裁判的两种认识——“个案既判力说”和“解释义务说”出发,进一步提出了“习惯法说”,指出最高人民法院的裁判和司法解释中的“立法型”解释可以构成我国以裁判和司法解释为载体的习惯法,它们的普遍效力来源于习惯法并因具有习惯法的品格而成为法律的非正式渊源。基于此,本文主张最高人民法院“立法型”司法解释和值得刊登于公报上的裁判,应尽量以习惯法的构成要求为标准,具备“人们普遍认为它是正确的”品质。     

The Influence of Public Sentiment on Supreme Court Opinion Clarity

We examine whether public opinion leads Supreme Court justices to alter the content of their opinions. We argue that when justices anticipate public opposition to their decisions, they write clearer opinions. We develop a novel measure of opinion clarity based on multifaceted textual readability scores, which we validate using human raters. We examine an aggregate time series analysis of the influence of public mood on opinion clarity and an individual‐level sample of Supreme Court cases paired with issue‐specific public opinion polls. The empirical results from both models show that justices write clearer opinions when their rulings contradict popular sentiment. These results suggest public opinion influences the Court, and suggest that future scholarship should analyze how public opinion influences the written content of decision makers’ policies.     

Congressional Attacks on the Supreme Court: A Mechanism to Maintain,Build, and Consolidate

Reexamination and reinterpretation of the “mature” (1955–1984) New Deal era of congressional attacks on the Supreme Court reveals a new hypothesis: that Court‐curbing efforts played a previously unrecognized role in party system development. Court rulings that create inter‐ and intraparty tension provide opportunities for various actors to attack the Court in an effort to solidify their faction's standing within national coalitional politics. Congressional attackers can use Court‐curbing resolutions and amendments in efforts to help them maintain coalitional cohesion, build a new majority, or consolidate previous victories. Thus, we might see legislative‐judicial relations as an unrecognized “site” of political development, where coalitional change is opposed and wrought.     

Birth Order,Preferences, and Norms on the U.S. Supreme Court

The members of the U.S. Supreme Court have different ideas about what constitutes good judicial policy as well as how best to achieve that policy. From where do these ideas originate? Evolutionary psychology suggests that an answer may lie in early life experiences in which siblings assume roles that affect an adult's likely acceptance of changes in the established order. According to this view, older siblings take on responsibilities that make them more conservative and rule‐bound, while younger ones adopt roles that promote liberalism and greater rebelliousness. Applying this theory to the Court, I show that these childhood roles manifest themselves in later life in the decisions of the justices. Birth order explains not only the justices’ policy preferences but also their acceptance of one important norm of judicial decisionmaking, specifically their willingness to exercise judicial review.     

Explaining the Incidence and Timing of Congressional Responses to the U.S. Supreme Court

Sparked by interest in game‐theoretic representations of the separation of powers, empirical work examining congressional overrides of Supreme Court statutory decisions has burgeoned in recent years. Much of this work has been hampered, however, by the relative rarity of such events; as has long been noted, congressional attention to the Court is limited, and most Court decisions represent the last word on statutory interpretation. With this fact foremost in our minds, we examine empirically a number of theories regarding such reversals. By adopting an approach that allows us to separate the factors that lead to the event itself (that is, the presence or absence of an override in a particular case) from those that influence the timing of the event, we find that case‐specific factors are an important influence in the incidence of overrides, whereas Congress‐ and Court‐specific political influences dominate the timing at which those overrides occur. By separating the incidence and timing of overrides, our study yields a more accurate and nuanced understanding of this aspect of the separation‐of‐powers system.     

The Institutionalization of Supreme Court Confirmation Hearings

This article uses an original database of confirmation hearing dialogue to examine how the Senate Judiciary Committee's role in Supreme Court confirmations has changed over time, with particular attention paid to the 1939–2010 era. During this period, several notable developments took place, including a rise in the number of hearing comments, increased attention to nominees’ views of judicial decisions, an expansion of the scope of issues addressed, and the equalization of questioning between majority and minority party senators. We demonstrate that these changes were shaped by both endogenous and exogenous factors to promote the legitimization of the Judiciary Committee's role in the confirmation process and to foster the instrumental goals of senators. This research contributes to our understanding of the development of political institutions, interbranch interactions, and how institutional change affects the behavior of legal and political actors.     

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.     

Retrospective Congressional Oversight and the Dynamics of Legislative Influence over the Bureaucracy

Research stresses that congressional committees increase their oversight of the bureaucracy during divided government. We extend this research by developing an explanation, rooted in a more dynamic view of policymaking, for why Congress would sometimes conduct vigorous oversight under unified control as well. In short, committees seem to engage in what we call “retrospective oversight” and take advantage of newly friendly executive administration to refocus existing policy made under a past opposition president. We assess our perspective using two separate sources of data on oversight hearings spanning more than 60 years and find support for our claims regarding retrospective oversight.     

The Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content

We address fundamental questions about the ability of interest groups to shape public policy by examining the influence of amicus curiae briefs on U.S. Supreme Court majority opinion content. We argue that the justices will incorporate language from amicus briefs into their opinions based on the extent to which the amicus briefs contribute to their ability to make effective law and policy. Using plagiarism detection software and other forms of computer assisted content analysis, we find that the justices adopt language from amicus briefs based primarily on the quality of the brief's argument, the level of repetition in the brief, the ideological position advocated in the brief, and the identity of the amicus. These results add fresh insight into how interest groups influence the development of federal law by the Supreme Court.     

The Nature of Circuit Court Gatekeeping Decisions

This article provides an analysis of the nature of circuit court threshold decisions. Specifically, a model sensitive to the institutional context of the circuits is developed and tested across all threshold decisions in the sample and in more limited samples of proper party and proper forum votes. The results suggest that circuit court gatekeeping is a function of multiple factors, including circuit court law, litigant status, the lower court decision, and, at times, the ideological preferences of the circuit judge or that of his or her circuit.     

The Impact of Supreme Court Activity on the Judicial Agenda

When the Supreme Court takes action, it establishes national policy within an issue area. A traditional, legal view holds that the decisions of the Court settle questions of law and thereby close the door on future litigation, reducing the need for future attention to that issue. Alternatively, an emerging interest group perspective suggests the Court, in deciding cases, provides signals that encourage additional attention to particular issues. I examine these competing perspectives of what happens in the federal courts after Supreme Court decisions. My results indicate that while Supreme Court decisions generally settle areas of law in terms of overall litigation rates, they also introduce new information that leads to increases in the attention of judges and interest groups to those particular issues.