Supreme Court Legitimacy and Group-Centric Forces: Black Support for Capital Punishment and Affirmative Action

The Supreme Court has addressed capital punishment and affirmative action many times and, as a result, has had sweeping policymaking effects. For that reason, we argue that black opinion on capital punishment and affirmative action will be shaped by diffuse support for the Court. We also recognize the important role of group-centric forces in shaping black opinion. We find that diffuse support for the Court leads blacks with lower levels of race consciousness to be more supportive of capital punishment and less supportive of affirmative action, positions in line with the Court's decisions on these issues but contrary to black interests. The Court, however, is not able to throw its cloak of legitimacy around its policy position for blacks with the highest levels of group consciousness.     

The Effect of Race-Based Admissions in Public Universities: Debunking the Myths about Hopwood and Proposition 209

In the debates over the 2003 U.S. Supreme Court decisions regarding race-based university admissions, speculation has focused on how affirmative action affects minority undergraduate enrollments. This paper uses a rational choice framework to test the conventional wisdom about the effect of race-based admissions, focusing on the landmark Hopwood judicial decision and California's Proposition 209. This study offers more generalizable findings by incorporating all public universities bound under Hopwood and Proposition 209 using data spanning 1990–2000. Findings indicate that the effect of race-based admissions standards is not what might have been predicted: Shifts in minority enrollments that are attributable to affirmative action hinge on university-specific characteristics—namely, the level of selectivity.     

Congressional Voting on Term Limits

Between 1990 and 1995,twenty-three states unilaterally imposedterm limits on their own delegations toCongress. In 1995 the House ofRepresentatives defeated a constitutionalamendment that would have limited the termsfor all of Congress. Only weeks later, theSupreme Court struck down the individualstate laws. In 1997 the House againbrought the issue to a vote, which alsofailed. This paper models congressionalvoting on term limits with a simple gamewithin an interest-group theory withlegislators as imperfect agents ofconstituents. The game foremost predictsthat members from term-limited states wouldbe more likely to support term limits inthe first vote but no more likely on thesecond vote. The empirical section employsprobit, multinomial logit, and orderedprobit maximum likelihood estimations toconfirm the stated hypotheses. Among otherresults, in particular both the joint andconditional probability of a `yea' on thefirst vote and a subsequent `nay' on thesecond vote is higher for members fromstates that had unilaterally self-imposedterm limits. The results are robust tomodel specification, estimator, andalternative sampling. Implications areproposed in the concluding comments.     

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.     

Is There a “Workable” Race‐Neutral Alternative to Affirmative Action in College Admissions?

The 2013 decision by the U.S. Supreme Court in the Fisher v. University of Texas at Austin case clarified when and how it is legally permissible for universities to use an applicant's race or ethnicity in its admissions decisions. The court concluded that such use is permissible when “no workable race‐neutral alternatives would produce the educational benefits of diversity.” This paper shows that replacing traditional affirmative action with a system that uses an applicant's predicted likelihood of being an underrepresented racial minority as a proxy for the applicant's actual minority status can yield an admitted class that has a lower predicted grade point average and likelihood of graduating than the class that would have been admitted using traditional affirmative action. This result suggests that race‐neutral alternatives may not be “workable” from the university's perspective.     

Conservative Perspectives on American Federalism: Introduction

Conservatives were regularly criticized by liberals and othersfor their approach to federalism throughout the twentieth century.This trend began during the Progressive era, when the justicesof the "Lochner Court" were vilified for using national judicialpower to strike down local regulations. Several decades later,conservative opposition to New Deal programs was seen as insensitiveand elitist. Arguments for constitutional limitations on executivepower in the 1930s were attributed to the greed of businessmenand corporations. During the 1950s and 1960s, the conservativedefense of states' rights was explained by other unpleasantmotivations. Opposition to national civil rights laws was, formany, analogous to fondness for Jim Crow and other forms ofracial subjugation. Since the 1980s, conservative members ofthe Rehnquist Court have been denounced from various quartersfor their federalist perspectives. According to the Court'scritics, specious arguments about state sovereignty have beenused to rescind national rights and benefits.     

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.     

The Impact of Affirmative Action on the Employment of Minorities and Women: A Longitudinal Analysis Using Three Decades of EEO‐1 Filings

What role has affirmative action played in the growth of minority and female employment in U.S. firms? This paper presents a longitudinal analysis of this question by exploiting rich variation across firms in the timing of federal contracting to identify affirmative action effects over the course of three decades spanning 1973 to 2003. It constitutes the first study to comprehensively document the long‐term and dynamic effects of affirmative action in federal contracting on employment composition within firms in the United States. I use a new panel of over 100,000 large private‐sector firms from the U.S. Equal Employment Opportunity Commission, including both firms that obtain federal contracts and are therefore mandated to implement affirmative action and firms that are noncontractors, across all industries and regions. The paper's key results indicate that the primary beneficiaries of affirmative action in federal contracting over 1973 to 2003 were black and Native American women and men. Dynamic event study analysis of workforce composition around the time of contracting reveals that a large part of the effect of affirmative action on increasing protected group shares occurred within the first four years of gaining a contract, and that these increased shares persisted even after a firm was no longer a federal contractor. The paper also uncovers important results on how the impact of affirmative action evolved over 1973 to 2003, in particular that the fastest growth in the employment shares of minorities and women at federal contractors relative to noncontracting firms occurred during the 1970s and early 1980s, decelerating substantially in ensuing years.     

REPRESENTATION, REAPPORTIONMENT, AND THE SUPREME COURT

Abstract. The reapportionment of congressional and state legislative districts occasioned by decennial censuses has generated intense political and judicial conflict. This conflict has made clearer several obstacles to a deeper understanding of the nature of representation. It has also led to the fashioning of a new equal protection jurisprudence by the Supreme Court in an attempt to grapple with apportionment disputes. The Court has established clear standards for redistricting congressional and state legislative seats. Yet after two decades, the Court has still not produced judicially manageable standards to deal with the problems of partisan gerrymandering, affirmative gerrymandering,'political fairness', and the Court's impact on public policy. A review of the pertinent cases makes it possible to forecast the probable outcome of litigation involving these issues in the 1980 round of reapportionments.     

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 .     

Limiting State Involvement in Foreign Policy: The Governors and the National Guard in Perpich v. Defense

The National Guard is a largely successful intergovernmentalinstitution in the United States. In September 1989, however,the governor of Minnesota asked the U.S. Supreme Court to strikedown federal legislation that gives the Department of Defenseauthority to assign state National Guard units to active-dutyoverseas training without the consent of the governor. In Perpich(1990), the Supreme Court upheld the Montgomery Amendment allowingthe president to order members of a state's Guard to activeduty for training outside the United States even during peacetimewithout either the consent of the governor or the declarationof a national emergency. The Court did not address the factthat the president has ample authority under other statutesfor calling up the National Guard. The decision dealt only withthe authority for calling Guard units for two weeks of active-dutytraining. The practical effect of this interpretation of themilitia clauses of the U.S. Constitution is to reduce the states'authority for training to, at best, a ministerial function,even when Guard units are called up by the secretary of defenseonly for the purpose of training.     

Consequences of the Rehnquist Court's Federalism Decisions for Congressional Lawmaking

Scholars generally agree on the doctrinal significance of theRehnquist Court's post-1990 federalism decisions, but thereis less agreement about the consequences of these decisions.A previous study examined the direct consequences of these decisions,by inquiring into the extent to which Congress was able to reviseand reenact statutes that were struck down by the Court, butit left unexamined the effects on Congress's ability to legislatein other areas. This article assesses the indirect consequencesof these decisions by tracing their effects on the draftingof and debate over bills other than the ones directly invalidatedby the Court. It turns out that these decisions have had onlya limited effect on Congress's ability to draft constitutionallyacceptable legislation, but they have had an important effecton the debate over the passage of several pieces of legislation,whether by handing opponents arguments to oppose the bills orby providing members of Congress with means to explain volesthat would otherwise be difficult to defend.     

The clash of government structure and racial politics in the City of Richmond v. J. A. Croson

Drawing on a qualitative case study of the political actors who authorized Richmond, Virginia's minority contractor ordinance, this article analyzes the discontinuity between their efforts to redistribute political resources into the black community and the municipal government structure established by the progressive reform movement and reinforced by the Supreme Court ruling in the City of Richmond v. J. A. Croson. It argues that the specific points of contention are the progress reforms that eliminated political patronage and required parsimonious tax structures. Pervious research noted the benefits and/or constraints on the redistributive efforts of black politicians/ regimes arising from coalitions in governments structured by progressive reforms. This research, in contrast, argues that we must look to the political structure itself as a source of constraints also. Thus, as affirmative action policies like the one in the City of Richmond v. J. A. Croson are outlawed, racial minorities will find their efforts to achieve social, and especially economic, equality limited by the dictates of the political system itself.     

Macro Implementation: Testing the Causal Paths from U.S. Macro Policy to Federal Incarceration

Policy implementation is usually studied at the micro level by testing the short‐term effects of a specific policy on the behavior of government actors and policy outcomes. This study adopts an alternative approach by examining macro implementation—the cumulative effect of aggregate public policies over time. I employ a variety of methodological techniques to test the influence of macro criminal justice policy on new admissions to federal prison via three mediators: case filings by federal prosecutors, conviction rates in federal district courts, and plea bargaining behavior. I find that cumulative Supreme Court rulings influence the incarceration rate by altering conviction rates in district courts; however, I find only mixed evidence of congressional and presidential influence. The results suggest that U.S. macro policy influences bureaucratic outputs by altering the behavior of subordinate policy implementers; however, the Supreme Court may enjoy an advantage in shaping criminal justice policy.     

Backlash and Legitimation: Macro Political Responses to Supreme Court Decisions

This article is a first attempt to develop and assess the competing predictions of the thermostatic model of public opinion and legitimation theory for the responses of public mood to Supreme Court decisions. While the thermostatic model predicts a negative relationship between the ideological direction of Supreme Court decisions and changes in public mood, legitimation theory predicts that changes in mood should be positively associated with the ideological content of the Court's actions. I assess these rival expectations by modeling the dynamic relationship between mood and cumulative judicial liberalism. The model estimates indicate a complex interaction between the Court and the mass public characterized by short‐term backlash against Supreme Court decisions in mood followed by long‐run movement toward the ideological positions taken by the Court. The results emphasize the legitimacy of the Court in American politics and point to a unique role for the Court in shaping public opinion.     

The Institutionalization of the U.S. Supreme Court

In pursuing their goals, members of the U.S. Supreme Court areaffected by their institutional setting. How has that institutionalenvironment changed over time and what have been the politicalconsequences of those changes? Despite considerable analysisof the institutional dynamics of legislatures and executives,political scientists have been slow to bring time series techniquesto the study of the Supreme Court, and as a result much lessis known about its evolutionary path. Measuring a variety oforganizational characteristics, I construct an index of theinstitutionalization of the Supreme Court from 1790 to 1996.This indicator suggests that the integration of the Court intothe system of federal policy making has better enabled the justicesto satisfy their objectives. To demonstrate this empirically,I test a series of error correction models of judicial influence,each of which confirms that the nature of the Supreme Court'scharacter has had considerable implications for the scope ofthe justices' legal and political impact. These results underscorethe need for judicial scholars to examine the Court's policymaking in longitudinal perspective.     

The U.S. Supreme Court's Federalism Jurisprudence: Alden v. Maine and the Enhancement of State Sovereignty

In recent years, the U.S. Supreme Court's federalism jurisprudencehas shielded states from certain aspects of Congress's policymakingand enforcement authority. Through its interpretations of theinterstate commerce clause and of the Tenth and Eleventh Amendments,the Court has reminded Congress that its power to govern haslimits. This article presents the major federalism cases ofthe 1990s, focusing on Alden v. Maine, the most important federalismdecision of the 1998–1999 term. It concludes that theCourt's interpretation of the Eleventh Amendment and the sovereign-immunitydoctrine, which has constrained the federal government's powerto authorize private suits against states for violations offederal law, poses a threat to a fundamental principle of therule of law: "where there is a right, there is a remedy."     

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.     

The Reconstitution of American Federalism? The Rehnquist Court and Federal-State Relations, 1991-1997

This article surveys the U.S. Supreme Court justices' recentopinions on federal-state relations with a special focus theCourt's 1996 term. Contrary to some claims, the Rehnquist Courtis not reconstituting definitions of American federalism orthe function of the Court in defining federal-state relations.What has occurred is a revitalization of a long-standing interpretiveconflict about the deployment of government power within a legallyconstituted regime. Therefore, the debate in such cases as Printzv. United States, Camps New found/Owatonna v. Town of Harrison,City of Boerne v. Flores, and Idaho v. Coeur d'Alene Tribe isabout how the political principles contained in the nation'sfoundational legal and historical texts, such as The Federalistand other records of the American Founders, ought to be interpretedby the justices. However, despite the limited focus on interpretativetechnique, the justices' debate about federalism still has importantpolitical consequences that will affect future discussions aboutcongressional and state government power.     

Abortion policy in the post-Webster age

Abortion policy will not change significantly as a result ofthe U.S. Supreme Court's decision in Webster v. ReproductiveHealth Services. The decision was not as expansive as generallyreported. Cases considered during the October 1989 term arenot likely to bring significant changes in abortion jurisprudence.A typology of post-Roe state legislative policymaking suggeststhat most states are unwilling to enact severe abortion restrictions.This is largely confirmed by the state legislative action thathas followed Webster. The Florida Supreme Court decision invalidatingthe state's parental-consent statute accentuates the importanceof state courts in setting abortion policy in the post-Websterperiod. In the highly charged political atmosphere followingWebster, state legislators have been reluctant to tackle abortion.These factors suggest that devolution of abortion policymakingauthority to states will not bring about fundamental changequickly.