Coalition formation on the U.S. Supreme Court: 1969–2009

We apply a fallback model of coalition formation to decisions of the U.S. Supreme Court, focusing on the seven natural courts, which had the same members for at least two terms, between 1969 and 2009. The predictions of majority coalitions on each of the courts are generally borne out by the 5–4 decisions, whereas the predictions of the Martin-Quinn (Political Analysis 10(2):134–153, 2002) model, which assumes a single underlying dimension along which the justices can be ordered, are not. The present model also provides insight into the dynamic process by which subcoalitions build up into majority coalitions and, in addition, identifies “kingmakers” and “leaders” on the natural courts. Furthermore, it provides evidence, from coalitional memberships, that a few justices shifted over time from one ideological camp to another.     

The Paradox of American Global Power

This paper will address these two questions:

1. 1
   Can the US be meaningfully seen as an empire in the ways it has behaved since entering the world stage as a central player after World War II?
    
2. 2
   If it is an empire, how has this affected the quality of its democratic life and institutions? One central hypothesis connects both explorations. It can be formulated as follows: if there is a logic to the life of empires that one might call the imperial imperative—a logic according to which the pursuit of hegemonic control to the far periphery of empire calls for ever greater concentration of power at the center—the US too will show the effects of this logic. In spite of its creed of democracy and republicanism the US, acting as an empire, cannot escape this imperial imperative. An obvious test case is offered by the two recent presidencies of George W. Bush and of Barack Hussein Obama. Although the latter presented himself as the anti-Bush, opposing all transgressions of constitutional constraints that his predecessor had stood for, and promising to take America back to its first republican principles, the imperial imperative, according to our hypothesis, would prevent Obama from pursuing such a course.
    

     

Human Rights in US Courts: Alien Tort Claims Act Litigation after Sosa v. Alvarez-Machain

In Filartiga v. Pena-Irala (1980), the Second Circuit Court of Appeals ruled that victims of human rights violations could sue their oppressors civilly in US courts under an eighteenth century law now called the Alien Tort Claims Act (ATCA). Controversy raged over the Filartiga decision and the proper interpretation of the ATCA for 24 years. Then in Sosa v. Alvarez-Machain (2004), the Supreme Court issued its first ATCA decision. This essay analyzes the effect of the Sosa decision on the development of human rights law in US courts. I find that while the federal judiciary is responding to some of the Supreme Court’s directives, lower courts still retain a great deal of discretion in handling ATCA cases.

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Debating Same-Sex Marriage: Lessons from <Emphasis Type="Italic">Loving</Emphasis>, <Emphasis Type="Italic">Roe</Emphasis>, and <Emphasis Type="Italic">Reynolds</Emphasis>

The United States Supreme Court, in its 2015 Obergefell v. Hodges decision, declared a constitutional right to same-sex marriage (SSM). With Republicans now controlling the Congress and presidency, and with value-traditionalists and ‘strict’ constitutionalists influencing the party’s legislative agenda and judicial nominees, Obergefell’s future and the contours of SSM rights are uncertain. Proponents assume the decision will delegitimate opponents, just as Loving v. Virginia (1967) accelerated the delegitimation of racial segregationists. SSM opponents counter with the Court’s 1973 Roe v. Wade ruling and argue that, like Roe, Obergefell undermines the democratic process, which is better suited to resolve a highly-charged moral dispute. Like Roe, Obergefell will not resolve the debate but, instead, trigger a durable opposition. We add a third possible path, drawing on the evolving public discourse on polygamy since the Supreme Court upheld prohibitions in Reynolds v. United States (1878). The politics of polygamy shows that, if SSM opponents are delegitimated, they may reemerge as legitimate participants in the public sphere. These paths offer insights into uncertainties, contingencies, and predictions regarding the durability of SSM resistance and other oppositional movements. They also lead to revisionist interpretations of the effect on public discourse flowing from these three seminal court decisions. The politics of interracial marriage (after Loving) shunned the losing political faction from the public forum, while those of abortion (after Roe), and, recently, polygamy, illustrate a more vibrant, pluralist model of deliberation. Whether SSM opponents will mimic a Roe model, or follow the trajectory of Loving or Reynolds, is now the question.     

Presidential Bureaucratic Power and Supreme Court Justice Voting

Presidency scholars suggest that the federal bureaucracy has become presidentialized and that the federal agencies have become a primary tool for presidential policy implementation. However, in its review of federal agency litigation, the Supreme Court stands as an important monitor of executive bureaucratic action. Here, the conditions under which Supreme Court justices choose to facilitate executive bureaucratic action are assessed. This study tests the proposition that Supreme Court justices' voting decisions to support the president's bureaucratic agents are conditioned upon theoretically interesting extra-legal factors. Logistic regression analysis was conducted on justices' votes from Supreme Court cases involving cabinet and independent agencies during the years 1953–1995. The results indicate that Supreme Court justices' voting decisions to favorably review bureaucratic actions are influenced by extra-legal factors including attitudinal, political, and external concerns.     

Crafting consensus

The paper analyzes the problem of a committee chair using favors at her disposal to maximize the likelihood that her proposal gains committee support. The favors increase the probability of a given member approving the chair’s proposal via a smooth voting function. The decision-making protocol is any quota voting rule. The paper characterizes the optimal allocation of any given level of favors and the optimal expenditure-minimizing level of favors. The optimal allocation divides favors uniformly among a coalition of the committee members. At a low level of favors, the coalition comprises all committee members. At a high level, it is the minimum winning coalition. The optimal expenditure level guarantees the chair certain support of the minimum winning coalition if favors are abundant and uncertain support of all committee members if favors are scarce; elitist or egalitarian committees are compatible with a strategic chair. The results are robust to changing the chair’s objectives and to alternative voting functions, and reconcile theoretical predictions with empirical observations about legislative bargaining experiments, lobby vote buying and executive lawmaking.     

Judicial Behavior and Public Opinion: Popular Expectations Regarding the Factors That Influence Supreme Court Decisions

This article examines the mass public's perceptions of the factors that actually influence Supreme Court decisions as well those that ought to influence such decisions. We expect significant discrepancies between what the public believes ought to be the case and what it perceives to actually be the case with regard to Supreme Court decision making and that these discrepancies have a significant negative impact on the public's assessment of the Court. More specifically, we hypothesize that the public believes that political factors have more influence on the Court than ought to be the case and that the public perceives traditional legal factors to be less influential than they should be. We find that the expected discrepancies do exist and significantly detract from popular regard for the Court.     

Irresolvable cultural conflicts and conservation/development arguments: Analysis of Korea’s Saemangeum project

This paper examines, through argument analysis & grid-group model, how cultural bias, as the frame of reference of an advocacy coalition (AC), brings about irresolvable conflicts and produces divided arguments between coalitions for development and conservation in Koreas Saemangeum project. Based on different cultural biases, two ACs – the advocacy coalition for development (ACD) and the advocacy coalition for conservation (ACC) – interpreted the same facts differently in line with their cultural orientations and ways of life. The dynamic argument patterns reflected each coalitions cultural bias, which restricted the frame of reference of actors in each AC. After reviewing argument analysis as an analytic tool, we introduce cultural theoryin which ways of life, consisting of cultural biases and social relations, amplify the irresolvable conflicts between two ACs. Second, to show the culturally constructed nature of the conflicts, we analyze the contrasting arguments between the ACD (dominated by a hierarchy bias) and ACC (led by egalitarianism) in the Saemangeum project. Third, we discuss the implications of Mary Douglas and Aaron Wildavskys cultural theoryto advocacy coalition framework (ACF) as follows: 1) constraining effects on inter-coalitional learning by cultural biases, 2) coexistence of different solidarities under a coalition, and 3) asymmetric relationships between parties in a coalition.     

Pro-Human Rights but Anti-Poor? A Critical Evaluation of the Indian Supreme Court from a Social Movement Perspective

Judicial activism is a contested phenomenon, with the liberals and even the conservatives championing it while denouncing its particular manifestations. In this article, I examine the recent judicial practice of one of the most activist judiciaries in the world, that of India, where progressive politics is often, and sometimes always, associated with an activist and benign court. Indeed, the Indian Supreme Court has a global reputation as a torchbearer on human rights. In this article, I adopt a social movement perspective to understand the actual impact of the court on the struggles of the poor for livelihood, resources, values, and identity, enacted through struggles for the recognition and realization of economic, social, and cultural rights. After an analysis of the record of the Supreme Court of India, I conclude that the Court has increasingly shown a bias against the poor in its activist rulings and made judicial activism a more problematic device for social movements in India to rely upon. To explain why this is happening, the article introduces two ideas: first, the emergence of the judiciary as an organ of governance and its attendant problems, and second, the internally biased nature of the rights discourse which tends to reproduce binary arguments for either increasing State capacity or for increasing choice of goods in the marketplace. The article concludes by exploring lessons from the jurisprudence of other countries and international law and urges the Indian Supreme Court to reinvent a jurisprudence informed more by the social movements of the poor. A shorter version of this article is forthcoming as “Judicial Governance and the Ideology of Human Rights: Reflections from a Social Movement Perspective” in C. Rajkumar and K. Chockalingam (eds.) Human Rights, Criminal Justice, and Constitutional Empowerment: Essays in Honor of Justice V.R. Krishna Iyer (Oxford University Press, India edition, 2006).

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Reassessing the “freshman effect”: The voting bloc alignment of new justices on the United States Supreme Court, 1921–90

Part of the conventional wisdom about the United States Supreme Court is the presumed existence of a freshman effect, a distinct pattern of behavior thought to be associated with newly appointed justices. Among other things, freshman justices are thought to be less likely than their senior colleagues to vote with established ideological blocs on the Court. The empirical evidence for the freshman effect in voting on the Court is somewhat ambiguous, however. In order to test for a freshman effect in the voting behavior of new justices on the Supreme Court, we examined the behavior of all justices on the Court between 1921 and 1990. Voting blocs were determined from the justices' interagreement scores, using the widely employed criterion developed by Sprague (1968). We found no evidence of a freshman effect during the time frame under study. Freshman justices do not differ from their senior colleagues with respect to bloc voting. We conclude that the freshman effect hypothesis is erroneous, at least with respect to the supposed nonalignment behavior of neophyte justices.     

Extension of the portfolio allocation model to surplus majority governments: a fuzzy approach

Scholars have long studied the conditions under which the cabinet making process will result in minority, surplus majority, or minimum-winning governing coalitions in parliamentary systems. Since Riker, a good number of these attempts have been based on rational choice assumptions. Among formal approaches in this vein, Laver and Shepsle’s (Making and breaking governments: Cabinets and legislatures in parliamentary governments, 1996) portfolio allocation model argues that parties centrally located in policy space have a greater potential for being part of any governing coalition and that parties located at the issue-by-issue median have a high likelihood of forming a minority government. However, the model predicts that surplus majority coalitions will only form when the number of salient policy dimensions in the political system is greater than two. We incorporate fuzzy set theory in the portfolio allocation model, permitting us to model ambiguity in parties’ policy preferences. The reformulated model accounts for the formation of surplus majority coalitions in two-dimensional policy space. We illustrate the model’s conclusions with a case study of the 1996 surplus majority coalition in the Lithuanian Seimas.     

A Competing Risks Model of Supreme Court Vacancies, 1789–1992

We hypothesize that Supreme Court justices will consider the likely ideological disposition of their successor in their decision to retire or remain on the Court. Furthermore, because a justice's decision to remain on the Court places him or her at risk of dying in office, it is necessary to consider a model of both voluntary and involuntary vacancies. Our study examines three broad classes of factors influential to Supreme Court vacancies: personal considerations, institutional context, and political influences. We assess the factors that affect the probability of a vacancy on the U.S. Supreme Court due to mortality and retirement at the individual level from 1789 to 1992, using a competing risk duration model and incorporating time-varying covariates. We find significant differences in the hazards of vacancy due to these two causes, and a number of factors are shown to influence the probability of a vacancy, including a general propensity to retire near the beginning of presidents' second terms. However, we find little evidence of the influence of political factors in either retirement-or death-related vacancies, suggesting that justices who retire do not generally do so for expressly political reasons and those who die in office rarely do so as a result of holding out for a like-minded replacement.     

Antitrust public choice(s)

Antitrust legislation and enforcement has over the last few decades been increasingly informed by ever more sophisticated analysis while—at the same time—evidence has continued to mount that the results of antitrust remedies fall far short of the promises held out under still prevalent ‘nirvana fallacy’ (Demsetz in Journal of Law and Economics 12(1):1–22, 1969) expectations. I draw upon a recent Supreme Court decision as well as the results of Young and Shughart’s (Public Choice, 2010. doi:10.1007/s11127_009-9531-y) novel approach to the analysis of antitrust enforcement activities to discuss the extent to which public choice theory is vital in solving the puzzle regarding the “unintended” effects of antitrust (public) choices.     

Does Organizational Image Matter? Image,Identification, and Employee Behaviors in Public and Nonprofit Organizations

Organizational image, identity, and identification are powerful concepts in terms of understanding members’ behaviors and beliefs. In particular, the term “image” has frequently been used to describe the overall impression of the organization, but most scholars have only focused on organizational image as it is perceived by external audiences. However, organizational image as perceived by members within an organization is critical for determining its impact on individual employees’ motivation, work behaviors, and further performance at work. This article explores the roles of organizational image and identification in explaining organizational behaviors—extra‐role behavior and absenteeism—in public and nonprofit organizations. A series of seemingly unrelated regressions were used to analyze survey data from 1,220 respondents. Results show that organizational image is positively related to employee identification, and identification has a significant influence on promoting extra‐role behavior and lowering employee absenteeism.

Practitioner Points

• Organizational image as perceived by members of an organization is an aggregate of individual employees’ perceptions of the organization based on their own experiences and judgments (perceived organizational identity) and outsiders’ judgments about the organization (construed external image).
• Both perceived organizational identity and construed external image influence the extent to which employees are likely to identify themselves as part of their organization.
• The higher an employee's level of identification, the more he or she is likely to engage in extra‐role behavior.
• Managing organizational image and identification in a positive way can significantly reduce costly voluntary employee absences, which are reasonably avoidable absences.

     

How do voters react when their party forms a coalition they dislike?

Abstract

While coalitions are conventionally seen as opportunities for parties to realise their policy preferences or to secure their control over political offices, recent studies show that citizens have preferences for coalitions which influence their vote choice. However, these studies do not consider how party and coalition preferences influence each other. This study uses panel data from the German Longitudinal Election Study from the 2009, 2013 and 2017 German elections to determine whether voters punish the party for which they voted for being in a coalition they dislike or, alternatively, whether they become more supportive of that coalition. We find weak evidence for the former but strong evidence for the latter.     

Parliamentary questions as a control mechanism in coalition governments

This article argues that government parties can use parliamentary questions to monitor coalition partners in order to reduce agency loss through ministerial drift. According to this control logic, government parties have particular incentives to question ministers whose jurisdictions display high policy conflict and high electoral salience and thus hold the prospect of electorally damaging ministerial drift. Multivariate regression analysis of all parliamentary questions in the German Bundestag between 1980 and 2017 supports this hypothesis, showing that cabinet parties address substantially and significantly more questions to ministries held by coalition partners on salient and ideologically divisive issues. This interactive effect does not occur for opposition parties or questions posed to own-party ministers. These findings, as well as the temporal patterns of questioning over the electoral cycle, indicate that control within coalitions is a distinct motivation for questioning ministers that cannot be reduced to existing explanations such as electorally motivated issue competition.     

A precise method for evaluating election schemes

A previously published paper evaluated election schemes under a wide variety of election circumstances. This paper improves upon the previous work by refining the measures used to rate the election schemes and increasing the statistical significance of those ratings. With these modifications, we can now draw some new conclusions:

1. In general circumstances, the Borda System outperforms the Copeland System which outperforms Approval which outperforms Majority Rule.
2. The Maximin Rule — strongly supported by Rawls's — turns out to be a reasonable election rule if the number of election alternatives is large relative to the number of voters.
3. With two exceptions, all our election systems performed quite well given a society with highly correlated utilities.
4. Given a polarized society, a serial dictatorship was better than every other election system except Borda.

Perhaps even more importantly, we now have the possibility of conducting some cost/benefit analyses of different proposals for electoral changes.     

In the mirror of the justices: Sources of greatness on the Supreme Court

Few political scientists have undertaken systematic study of the determinants of greatness on the Supreme Court. In this article, I formulate and test a series of competing explanations for judicial eminence in a multivariate model. For the measure of performance on the Court, I use Blaustein and Mersky's ratings of the justices. The alternative explanations include social backgrounds, occupational experiences, political connections, experiences on the Court, and region of residence. Neither occupational experiences nor political connections have an appreciable impact on the level of achievement a justice reaches. Thus, contrary to one of the most popular hypotheses, previous judicial experience does not give an individual any advantage. Instead, in much greater measure, experiences on the Supreme Court and certain social backgrounds differentiate among the various levels of performance. In particular, the statistical analysis indicates the centrality and potency of parental status, religious affiliation, reputation as a dissenter, the number of opinions written in landmark cases, holding the office of chief justice, years of service, and the age of the justice at appointment.