Comparing Attitudinal and Strategic Accounts of Dissenting Behavior on the U.S. Courts of Appeals

Students of judicial behavior have increasingly turned to strategic accounts to understand judicial decision making. Scholarship on the Supreme Court and state high courts suggests that the decision to dissent is better understood in light of strategic considerations rather than simply reflecting ideological disagreement. We investigate whether these findings comport with behavior by judges on the U.S. Courts of Appeals. We develop a spatial model of the decision to dissent that incorporates both attitudinal and strategic elements and subject this model to empirical analysis. We find that ideological disagreement between a judge and the majority opinion writer is a more persuasive explanation of the decision to dissent than a strategic account in which a judge conditions a dissent on whether circuit intervention would obtain the judge's preferred outcome. Though we do not discount the existence of other types of strategic behavior on the Courts of Appeals, our research suggests that strategic accounts of dissenting behavior are not generalizable to all courts .     

Racial Diversity and Judicial Influence on Appellate Courts

This article evaluates the substantive consequences of judicial diversity on the U.S. Courts of Appeals. Due to the small percentage of racial minorities on the federal bench, the key question in evaluating these consequences is not whether minority judges vote differently from nonminority judges, but whether their presence on appellate courts influences their colleagues and affects case outcomes. Using matching methods, I show that black judges are significantly more likely than nonblack judges to support affirmative action programs. This individual‐level difference translates into a substantial causal effect of adding a black judge to an otherwise all‐nonblack panel. Randomly assigning a black counterjudge—a black judge sitting with two nonblack judges—to a three‐judge panel of the Courts of Appeals nearly ensures that the panel will vote in favor of an affirmative action program. These results have important implications for assessing the relationship between diversity and representation on federal courts.     

Constitutional courts as veto players: Lessons from the United States,France and Germany

The number of constitutional courts and supreme courts with constitutional review rights has strongly increased with the third wave of democratisation across the world as an important element of the new constitutionalism. These courts play an important role in day‐to‐day politics as they can nullify acts of parliament and thus prevent or reverse a change in the status quo. In macro‐concepts of comparative politics, their role is unclear. Either they are integrated as counter‐majoritarian institutional features of a political system or they are entirely ignored: some authors do not discuss their potential impact at all, while others dismiss them because they believe their preferences as veto players are entirely absorbed by other actors in the political system. However, we know little about the conditions and variables that determine them as being counter‐majoritarian or veto players. This article employs the concept of Tsebelis’ veto player theory to analyse the question. It focuses on the spatial configuration of veto players in the legislative process and then adds the court as an additional player to find out if it is absorbed in the pareto‐efficient set of the existing players or not. A court which is absorbed by other veto players should not in theory veto new legislation. It is argued in this article that courts are conditional veto players. Their veto is dependent on three variables: the ideological composition of the court; the pattern of government control; and the legislative procedures. To empirically support the analysis, data from the United States, France and Germany from 1974 to 2009 is used. This case selection increases variance with regard to system types and court types. The main finding is that courts are not always absorbed as veto players: during the period of analysis, absorption varies between 11 and 71 per cent in the three systems. Furthermore, the pattern of absorption is specific in each country due to government control, court majority and legislative procedure. Therefore, it can be concluded that they are conditional veto players. The findings have at least two implications. First, constitutional courts and supreme courts with judicial review rights should be systematically included in veto player analysis of political systems and not left aside. Any concept ignoring such courts may lead to invalid results, and any concept that counts such courts merely as an institutional feature may lead to distorted results that over‐ or under‐estimate their impact. Second, the findings also have implications for the study of judicial politics. The main bulk of literature in this area is concerned with auto‐limitation, the so‐called ‘self‐restraint’ of the government to avoid defeat at the court. This auto‐limitation, however, should only occur if a court is not absorbed. However, vetoes observed when the court is absorbed might be explained by strategic behaviour among judges engaging in selective defection.     

Ideological Competition and Conflict in the Judicial Hierarchy

Circuit splits, or conflicting rules across multiple U.S. Courts of Appeals, have important policy implications and dramatic effects on Supreme Court case selection, yet we know little about the incentives ideological lower courts face when deciding whether to initiate conflict. This article develops a formal model of a judicial hierarchy where lower court judges are subject to review by a high court with distaste for unresolved conflict, termed “split-intolerance,” and with uncertain preferences over policy. Lower courts may compete by investing costly effort in legal quality to make their rules more attractive. In equilibrium, lower courts may initiate conflict even when the odds of success before the high court are remote. Surprisingly, lower courts grow more likely to create conflict as the high court's split-intolerance increases; however, split-intolerance can also incentivize greater lower court effort. I present qualitative evidence illustrating the model's explanatory power.     

Anti‐Corruption Watchdog Accountability: The Limitations of Judicial Review's Ability to Guard the Guardians

Anti‐corruption watchdogs form an important part of integrity measures in Australia's system of government. Integrity theory places anti‐corruption watchdogs in a fourth branch of government and as a part of a national integrity system as a way of understanding how they detect and prevent corruption and promote integrity. Integrity theory claims that an important part of the oversight of watchdogs occurs through judicial review of watchdog decisions by the courts. However, it fails to recognise the unique limitations when undertaking judicial review of watchdog decisions. This article submits that it is important to recognise these limitations to properly assess the effectiveness of a national integrity system and a fourth branch of government. The article explores the unique limitations of the court's ability to hold watchdogs to account and offers suggestions for managing these limitations.     

Whistleblowing and Compliance in the Judicial Hierarchy

One way that principals can overcome the problem of informational asymmetries in hierarchical organizations is to enable whistleblowing. We evaluate how whistleblowing influences compliance in the judicial hierarchy. We present a formal model in which a potential whistleblower may, at some cost, signal noncompliance by a lower court to a higher court. A key insight of the model is that whistleblowing is most informative when it is rare. While the presence of a whistleblower can increase compliance by lower courts, beyond a certain point blowing the whistle is counterproductive and actually reduces compliance. Moreover, a whistleblower who is a “perfect ally” of the higher court (in terms of preferences) blows the whistle too often. Our model shows an important connection between the frequency of whistleblowing and the effectiveness of whistleblowing as a threat to induce compliance in hierarchical organizations.     

On the reputation of state supreme courts

A state supreme court, in making and justifying choices, uses a variety of sources of information and authority—its own precedents, scholarly commentaries, articles in law reviews, encyclopedias, restatements, and so forth. Quite often a state supreme court appeals to the wisdom or rejects the lack of it in the decision of a sister court in order to arrive at or buttress reasoning in a particularly problematic case. These citations—construed as derogation or deference—yield very handy and nonreactive indicators of hierarchies of prestige between and among the highest appellate courts of the several states. In this paper, I develop a simple and general measure of judicial reputation, present evidence on the hierarchy of state supreme courts as of 1975, show how this ranking has changed in the last 50 years, and examine competing and sometimes complementary explanations of judicial prestige. Taken together, social diversity, judicial professionalism, political ideology, and the size of case load provide an impressive explanation of the reputation of state supreme courts.     

Judicial politics in Britain: Patrolling the boundaries

This study considers judicial policy‐making in Great Britain by noting the peculiarly British institutional restraints on judicial action of parliamentary sovereignty, the resulting subordination of all courts to the legislative branch and the absence of a codified charter of rights or constitution. Though there is no judicial power to annul legislative or executive actions, British courts and judges still play a small, but significant, role in policy‐making through the common law and, in particular, through judicial review of adminstrative actions. A written bill of rights would likely draw courts further into the the political arena and politicise the appointment of judges.     

Judicial policy‐making in Germany: The federal constitutional court

The most powerful policy‐maker among German courts is the Constitutional Court. It is the thesis of this analysis that the danger of judicial review is a process of judicialisation of politics. More and more political questions are decided by the Constitutional Court and, thereby, political alternatives are reduced. Members of Parliament contribute to this development by carrying too far the consideration of legal arguments in legislation and judges by exceeding their competence in several cases. While it is an inadequate simplification of reality to claim that judicial review always serves the interests of the political elite, it is the growing influence of judicial review in policy‐making that sometimes prevents political reform.     

State Public Opinion, the Death Penalty, and the Practice of Electing Judges

Do state supreme courts act impartially or are they swayed by public opinion? Do judicial elections influence judge behavior? To date these questions have received little direct attention due to the absence of comparable public opinion data in states and obstacles to collecting data necessary for comprehensive analysis of state supreme court outcomes. Advances in measurement, data archiving, and methodology now allow for consideration of the link between public opinion and judicial outcomes in the American states. The analysis presented considers public opinion's influence on the composition of courts (indirect effects) and its influence on judge votes in capital punishment cases (direct effects). In elective state supreme courts, public support for capital punishment influences the ideological composition of those courts and judge willingness to uphold death sentences. Notably, public support for capital punishment has no measurable effect on nonelective state supreme courts. On the highly salient issue of the death penalty, mass opinion and the institution of electing judges systematically influence court composition and judge behavior.     

Who Consents? Competing Pivots in Federal Judicial Selection

The salience of judicial appointments in contemporary American politics has precipitated a surge of scholarly interest in the dynamics of advice and consent in the U.S. Senate. In this article, we compare alternative pivotal politics models of the judicial nominations process, each capturing a different set of potential veto players in the Senate. We use these spatial models to guide empirical analysis of rejection patterns in confirmation contests for the lower federal courts. Using data on the outcomes of all nominations to the U.S. Courts of Appeals and the U.S. District Courts between 1975 and 2006, we show that models incorporating the preferences of the majority party median and the filibuster pivots best account for confirmation patterns we observe at the appellate and trial court levels, while advice and consent for trial courts has more recently been influenced by home-state senators.     

When complex facts threaten court reviews: Litigation over navigation projects

The capacity of the U.S. courts to provide effective review of cases involving complex scientific and economic analysis is declining. Rational action in such cases requires three things: a general rule by which to judge the appropriateness of actual or proposed actions; a set of facts sufficient for determining the consistency of the action with the general rule; and an independent review institution with power to enforce actions under the rule. Where the issues are complex, however, government agencies increasingly have tended to cloak their decisions in needlessly technical formulations and to buttress their presentations in masses of impenetrable data. Courts tend to avoid involvement in the complexities, resting instead on a presumption that government reports are accurate and government actions appropriate; this is a tendency we label “judicial math block.” Two cases taken from the complex area of public navigation investment illustrate the problem.     

The Electoral Connection: How the Pivotal Judge Affects Oppositional Success at European Constitutional Courts

Constitutional courts are often considered to be ‘veto players’ or ‘third chambers of parliament’. However, no attention has been paid to the composition of European constitutional courts and how they make decisions. Do European judges exhibit political preferences as their US counterparts do? If so, it is important to know who selects the judges as the selection determines the outcome. This article analyses the composition of the German Bundesverfassungsgericht and the French Conseil constitutionnel. It tests the correlation between the party affiliation of the pivotal judge and oppositional success empirically for all abstract reviews filed between 1974 and 2002. In both countries the likelihood of an oppositional victory or defeat varies with the ideological position of the pivotal judge. This leads to the conclusion that European judges decide on the basis of their political preferences like their US counterparts.     

Federal court outcomes in asylum-related appeals 1980–1987: A highly ‘politicized’ process

Federal court outcomes (both district courts and courts of appeal) in asylum-related appeals during the period 1980–1987 are significantly related to three political variables: the political party affiliation of the President who appointed the judge or judges involved in an appeal, the nature of judicial constituencies, and the involvement of interest groups in the appeals. Court outcomes are not, on the other hand, significantly related to two contextual factors: geopgraphic region of the decisionmakers and the unemployment rate. The federal courts did not exhibit the bias of the immigration bureaucracy in favor of hostile-country aliens (aliens from communist, socialist, or leftist countries); nor did these courts favor aliens from European countries.     

Who Controls the Content of Supreme Court Opinions?

Conventional arguments identify either the median justice or the opinion author as the most influential justices in shaping the content of Supreme Court opinions. We develop a model of judicial decision making that suggests that opinions are likely to reflect the views of the median justice in the majority coalition. This result derives from two features of judicial decision making that have received little attention in previous models. The first is that in deciding a case, justices must resolve a concrete dispute, and that they may have preferences over which party wins the specific case confronting them. The second is that justices who are dissatisfied with an opinion are free to write concurrences (and dissents). We demonstrate that both features undermine the bargaining power of the Court's median and shift influence towards the coalition median. An empirical analysis of concurrence behavior provides significant support for the model.     

Judicial policy‐making in the Netherlands: The case‐by‐case method

The Dutch judiciary is modelled on the French one and places a premium on the separation of powers. One manifestation of this adherence to the strict separation of powers is the prohibition against judicial review. Judges in the ordinary courts, however, have since early in this century given broad interpretations to statutes becoming significant policy‐makers in Dutch politics because of the system of coalition governments. Laws are drafted in vague terms, leaving interpretation to the courts, and issues on which there is no possibility of political compromise find resolution only in the judicial forum.     

Strategic Defiance and Compliance in the U.S. Courts of Appeals

Why do lower courts treat Supreme Court precedents favorably or unfavorably? To address this question, we formulate a theoretical framework based on current principal‐agent models of the judiciary. We use the framework to structure an empirical analysis of a random sample of 500 Supreme Court cases, yielding over 10,000 subsequent treatments in the U.S. Courts of Appeals. When the contemporary Supreme Court is ideologically estranged from the enacting Supreme Court, lower courts treat precedent much more harshly. Controlling for the ideological distance between the enacting and contemporary Supreme Courts, the preferences of the contemporary lower court itself are unrelated to its behavior. Hence, hierarchical control appears strong and effective. At the same time, however, a lower court's previous treatments of precedent strongly influence its later treatments. The results have important implications for understanding legal change and suggest new directions for judicial principal‐agency theory.     

The European Court's political power

The European Court has emerged as one of the most powerful political institutions in the European Union and the most influential international court in existence. National courts are the linchpins of the European legal system, making European Court decisions enforceable and creating an independent power base for the European Court. This article examines why national courts agreed to take on a role enforcing European law supremacy against their own governments and why national politicians did not stop an institutional transformation of the European legal system which greatly compromised national sovereignty. Competition between lower and higher national courts, each trying to enhance their influence and authority vis‐à‐vis each other, explains how national legal interpretive barriers and high‐court ambivalence regarding the European Court's declaration of European Law Supremacy was overcome. Politicians proved unable to reverse national court acceptance of European law supremacy, and institutional rules kept politicians from sanctioning either national courts or the European Court for judicial activism. Legal doctrine became a form of institution‐building, and a mechanism to make international law enforceable was created, giving the European Court the ability to make unpopular decisions and to compel compliance with European law.     

Constitutional Review and the Selective Promotion of Case Results

A significant majority of the world's constitutional courts publicize their decisions through direct contact with the national media. This interest in public information is puzzling in so far as constitutional judges are not directly accountable to voters. I argue that the promotion of case results is consistent with a theory of judicial behavior in which public support for courts can undermine incentives for insincere decision making. In this article, I develop a simple game theory model that identifies how case promotion is linked to judicial choice. Results of a simultaneous equations model estimating the Mexican Supreme Court's merits decisions and its choices to publicize those decisions by issuing press releases to national media outlets support an account of constitutional review in which judges believe they can influence their authority through case promotion.