How Public Opinion Constrains the U.S. Supreme Court

Although scholars increasingly acknowledge a contemporaneous relationship between public opinion and Supreme Court decisions, debate continues as to why this relationship exists. Does public opinion directly influence decisions or do justices simply respond to the same social forces that simultaneously shape the public mood? To answer this question, we first develop a strategy to control for the justices' attitudinal change that stems from the social forces that influence public opinion. We then propose a theoretical argument that predicts strategic justices should be mindful of public opinion even in cases when the public is unlikely to be aware of the Court's activities. The results suggest that the influence of public opinion on Supreme Court decisions is real, substantively important, and most pronounced in nonsalient cases.     

The outcome-prediction strategy in cases denied certiorari by the U.S. Supreme Court

We investigate whether the substantial use of the outcome-prediction strategy by Supreme Court justices occurs in the petitions denied certiorari by the Court. We show with a computer simulation that [Caldeira, G.A., Wright, J.R., & Zorn, C.J.W. (1999). Journal of Law, Economics and Organization, 15, 549–572], who modeled the missing final votes for denied petitions in order to include them in their study of the use of the outcome-prediction strategy, may have obtained spurious results. Application of the logic of conditional probabilities to the denied petitions suggests that all but those denied by the narrowest of margins are probably considered unacceptable by the justices on non-outcome-oriented grounds, and, therefore, are not subject to use of this strategy. We evaluate the pursuit of the outcome-prediction strategy in petitions that narrowly fail to be granted cert by focusing upon the petitions that are narrowly granted cert and find limited use of the strategy. We conclude that the outcome-prediction strategy probably is little used by the justices in confronting the petitions denied cert and that investigations of the use of this strategy are best confined to those petitions granted cert.     

State Merit Amicus Participation and Federalism Outcomes in the U.S. Supreme Court

Research suggests that merit amicus curiae participation correlateswith Supreme Court decision making and that states make frequentand effective use of this tool. To date, however, no study hasadequately examined the relationship between state amicus participationand the federalism values reflected in the Court's decisions.This article dev"Lelops and finds evidence for the assertionthat, when they cooperate in the amicus process, state participationis associated with an increase in the likelihood of rulingsfavoring state rather than national government power.     

Social backgrounds,social motives and participation on the U.S. Supreme Court

This study explores the utility of psychological content analysis in studying judicial behavior. Justices' testimony before the Senate Judiciary Committee was scored for power, achievement, and affiliation imagery using content analysis techniques developed by Winter (1982a). The results suggest that motivational content analysis may provide a more direct means of assessing the relationship between judges' psychological disposition and their decision making behavior. Combinations of motive imagery variables and social background variables explained between 64% and 83% of the variation in writing opinions and in casting concurring and dissenting votes among U.S. Supreme Court justices.     

Federalism Outcomes and Ideological Preferences: The U.S. Supreme Court and Preemption Cases

The record of the U.S. Supreme Court in decisions affectingfederal-state relations has been one of inconsistency betweenstates' rights and national supremacy. This inconsistency hasperplexed both legal and political science scholars who havehad great difficulty placing decision-making regarding federalismoutcomes by the Court in any sort of theoretical context. Contraryto much conventional wisdom, ideological preferences do notautomatically translate into federalism outcomes. We extendmodels of judicial decision-making in political environmentsby including state policy. State policy outcomes may be eithermore liberal or more conservative than the policy would be underfederal control. Thus, the ideological preferences of the justicesmay contradict their preferences toward nationalism or statesrights. Testing the model using 94 preemption cases, we findthat individual justices and most Courts are willing to sacrificetheir federalism values in the pursuit of some other policygoal. This finding has implications for both the federalismliterature and strategic models of Court behavior, as well asfor cases the Court is currently reviewing.     

State Sovereignty and the Eleventh Amendment in the U.S. Supreme Court: The 1988 Term

During its 1988 term, the U.S. Supreme Court addressed two importantaspects of the Eleventh Amendment, which generally protectsstates from being sued in federal courts. First, the Court heldthat the Congress has power to abrogate states' immunity fromsuit—to subject states to suits in federal courts fordamages—under Congress' expansive commerce-clause power.Second, the Court made clear that such abrogation would be foundonly where the text of the statute itself, as distinct fromits legislative history, clearly and specifically so provided.This article describes these decisions, and analyzes some oftheir implications for judicial federalism.     

Unanimous decision making on the U.S. Supreme Court: Case stimuli and judicial attitudes

Although behavioral scholars have devoted much time and energy to attempting to explain decision making on the U.S. Supreme Court, they have virtually ignored the unanimous decision. We investigated the Vinson, Warren, and Burger Courts and discovered that the liberal outcome was more successful in the unanimous cases whether those cases involve civil liberties or economic liberalism and whether they were decisions to reverse or decisions to affirm. We also ascertained that the ideological position that tended to win in the unanimous reverse cases was related to the ideological position that tended to win in the nonunanimous reverse cases, but that no such relationship was present in the two kinds of affirm cases. These two findings are in conformity with a psychometric model, which posits that the relative position of judicial attitudes and case stimuli determines the vote on the U.S. Supreme Court.     

The Nature of Legal Change on the U.S. Supreme Court: Jurisprudential Regimes Theory and Its Alternatives

Jurisprudential regimes theory (JRT) posits that legal change on the U.S. Supreme Court occurs in a drastic, structural‐break‐like manner. Methodological debates present conflicting evidence for JRT, which has implications for the important law versus ideology debate. We confront this debate by first elaborating two alternative theoretical perspectives to JRT—evolutionary change and legal stability. Our analytical framework focuses on two key substantive effects of jurisprudential categories on the Court's case outcomes—relative differences between categories over multiple time periods and longitudinal differences across time periods. Importantly, different pieces of empirical evidence can provide support for different dynamic processes. The extent to which “law matters” is not necessarily tied to one particular model of legal change. Empirical analysis of updated and backdated free expression data generates key findings consistent with JRT, legal stability, and evolutionary change. We discuss the implications of the results for understanding legal change and legal influence.     

Agenda Control, the Median Justice, and the Majority Opinion on the U.S. Supreme Court

Some scholars argue that the author of the majority opinion exercises the most influence over the Court's opinion-writing process and so can determine what becomes Court policy, at least within the limits of what some Court majority finds acceptable. Other students of the Court have suggested that the Court's median justice effectively dictates the content of the majority opinion: whatever policy the median justice most wants, she can get. We test these competing models with data on Supreme Court decision making during the Burger Court (1969–86). While we find substantial evidence for both models, the agenda control model gains greater support. This suggests that opinions on the Court on each case are driven, in general, by the interaction of three key variables: the policy preferences of the majority opinion author, the policy preferences of the median justice, and the location of the legal status quo .     

Network Analysis and the Law: Measuring the Legal Importance of Precedents at the U.S. Supreme Court

Timothy R. Johnson Department of Political Science, University of Minnesota, Twin Cities, 1414 Social Sciences Building, 267 19th Ave. South, Minneapolis, MN 55455 e-mail: trj{at}umn.edu James F. Spriggs, II Department of Political Science, Washington University in St. Louis, Campus Box 1063, One Brookings Drive, St Louis, MO 63130 e-mail: jspriggs{at}artsci.wustl.edu Sangick Jeon Department of Political Science, Stanford University, 616 Serra Street, Encina Hall West, Room 100, Stanford, CA 94305-6044 e-mail: sjeon{at}stanford.edu Paul J. Wahlbeck Department of Political Science, George Washington University, 1922 F Street, N.W. Suite 401, Washington, DC 20052 e-mail: wahlbeck{at}gwu.edu e-mail: jhfowler{at}ucsd.edu (corresponding author) We construct the complete network of 26,681 majority opinionswritten by the U.S. Supreme Court and the cases that cite themfrom 1791 to 2005. We describe a method for using the patternsin citations within and across cases to create importance scoresthat identify the most legally relevant precedents in the networkof Supreme Court law at any given point in time. Our measuresare superior to existing network-based alternatives and, forexample, offer information regarding case importance not evidentin simple citation counts. We also demonstrate the validityof our measures by showing that they are strongly correlatedwith the future citation behavior of state courts, the U.S.Courts of Appeals, and the U.S. Supreme Court. In so doing,we show that network analysis is a viable way of measuring howcentral a case is to law at the Court and suggest that it canbe used to measure other legal concepts. Authors' note: We appreciate the suggestions of Randy Calvert,Frank Cross, Pauline Kim, Andrew Martin, Richard Pacelle, JimRogers, Margo Schlanger, Amy Steigerwalt, and participants inthe Workshop on Empirical Research in the Law at WashingtonUniversity in St Louis School of Law. We presented former versionsof this article at the 2006 meeting of the Midwest PoliticalScience Association, Chicago, April 20–23; the 2006 meetingof the Southern Political Science Association, Atlanta, GA,January 5–7; and the 2006 Empirical Legal Studies Conference,Austin, TX, October 27–28.     

The Semiconstrained Court: Public Opinion,the Separation of Powers,and the U.S. Supreme Court's Fear of Nonimplementation

Numerous studies have found that elite and popular preferences influence decision making on the U.S. Supreme Court; yet, uncertainty remains about when, how, and why the Court is constrained by external pressure. I argue the justices are constrained, at least in part, because they fear nonimplementation of their decisions. I test this theory by utilizing a recent study of judicial power, which finds the Court enjoys greater implementation power in “vertical” cases (those involving criminal and civil liability) than in “lateral” cases (all others; e.g., those involving schools or government agencies). I find that Court constraint is strongest in important lateral cases—those cases in which implementation depends on support from nonjudicial actors. My findings suggest that Supreme Court constraint is driven by the justices' fear of nonimplementation and is, therefore, dependent on institutional context.     

Confirmation Politics and The Legitimacy of the U.S. Supreme Court: Institutional Loyalty, Positivity Bias, and the Alito Nomination

Gibson, Caldeira, and Spence (2003a, 2003b, 2005) expound the theory of positivity bias in their analysis of the legitimacy of the U.S. Supreme Court in the aftermath of Bush v. Gore. This theory asserts that preexisting institutional loyalty shapes perceptions of and judgments about court decisions and events. In this article, we use the theory of positivity bias to investigate the preferences of Americans regarding the confirmation of Judge Samuel Alito as an associate justice of the Supreme Court. More specifically, from the theory of positivity bias, we derive the hypothesis that preferences on the Alito confirmation are shaped by anterior commitments to the Supreme Court. Based on an analysis of a national panel survey, we find that those who have a high level of loyalty toward the Supreme Court rely much more heavily on what we term judiciousness—in contrast to ideology, policy, and partisanship—in forming their opinions on whether to confirm Alito. Thus, institutional loyalty provides a decisive frame through which Americans view the activity of their Supreme Court.     

Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the U.S. Supreme Court, 1953-1999

At the heart of attitudinal and strategic explanations of judicialbehavior is the assumption that justices have policy preferences.In this paper we employ Markov chain Monte Carlo methods tofit a Bayesian measurement model of ideal points for all justicesserving on the U.S. Supreme Court from 1953 through 1999. Weare particularly interested in determining to what extent idealpoints of justices change throughout their tenure on the Court.This is important because judicial politics scholars oftentimesinvoke preference measures that are time invariant. To investigatepreference change, we posit a dynamic item response model thatallows ideal points to change systematically over time. Additionally,we introduce Bayesian methods for fitting multivariate dynamiclinear models to political scientists. Our results suggest thatmany justices do not have temporally constant ideal points.Moreover, our ideal point estimates outperform existing measuresand explain judicial behavior quite well across civil rights,civil liberties, economics, and federalism cases.     

I Respectfully Dissent: Consensus, Agendas, and Policymaking on the U.S. Supreme Court, 1888–1999

Scholars have been intrigued by the abrupt change in the rate of nonconsensual opinions that the Supreme Court has published over time, which substantially increased beginning with the battles concerning the court's New Deal transition in the 1930s. Notwithstanding, none of the prior studies on this topic has made any link, whether theoretical or empirical, between the Supreme Court's issuance of these special opinions and the justices’ policy preferences. We utilize fractional cointegration to examine the relationship between consensus, agendas, and decisionmaking on the Supreme Court. We find that there is a systematic interrelation between the justices’ policy preferences and their issuance of nonconsensual opinions that is dependent upon the policy agenda before the court. In turn, this connection influences the court's policy outcomes, demonstrating that the justices’ behavior regarding nonconsensual opinion writing is a classic example of judicial policymaking.     

The Consistency of the U.S. Supreme Court's "Pro-State" Bloc

This article examines the bloc of U.S. Supreme Court justicesthat produced the "pro-state" decisions in United States v.Lopez, Seminole Tribe of Florida v. Florida, and Printz v. UnitedStates. We are concerned primarily with the bloc's coherenceand consistency across other cases of interest to state governmentsover the 1994–1996 terms. The labeling of individual justicesand the Court in general as "pro-state" depends in part on thecases subjected to analysis; the greater the inclusiveness ofthe list of "cases of interest to the states, " the more thebloc seems to fray and the less coherent the Court's direction.