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 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.     

Comparable Preference Estimates across Time and Institutions for the Court, Congress, and Presidency

Empirically oriented scholars often struggle with how to measure preferences across time and institutional contexts. This article characterizes these difficulties and provides a measurement approach that incorporates information that bridges time and institutions in a Bayesian Markov Chain Monte Carlo approach to ideal point measurement. The resulting preference estimates for presidents, senators, representatives, and Supreme Court justices are comparable across time and institutions. These estimates are useful in a variety of important research projects, including research on statutory interpretation, executive influence on the Supreme Court, and Senate influence on court appointments.     

The Separation of Powers, Court Curbing, and Judicial Legitimacy

A major focus of judicial politics research has been the extent to which ideological divergence between the Court and Congress can explain variation in Supreme Court decision making. However, conflicting theoretical and empirical findings have given rise to a significant discrepancy in the scholarship. Building on evidence from interviews with Supreme Court justices and former law clerks, I develop a formal model of judicial-congressional relations that incorporates judicial preferences for institutional legitimacy and the role of public opinion in congressional hostility towards the Supreme Court. An original dataset identifying all Court-curbing legislation proposed between 1877 and 2006 is then used to assess the influence of congressional hostility on the Court's use of judicial review. The evidence indicates that public discontent with the Court, as mediated through congressional hostility, creates an incentive for the Court to exercise self-restraint. When Congress is hostile, the Court uses judicial review to invalidate Acts of Congress less frequently than when Congress is not hostile towards the Court.     

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.     

Modeling Judicial Federalism: Predictors of State Court Protections of Defendants' Rights Under State Constitutions, 1969-1989

Drawing on data collected by Barry Latzer and using a logisticregression model that employs pooled time-series, this articletests a variety of factors for their impact on state high courtdecisions to diverge from U.S. Supreme Court criminal proceduredoctrines from 1969 to 1989. Several factors predict the developmentof independent state doctrines protective of civil liberties,including popular-vote retention elections and longer termsof office for state court justices, high court reputations,state wealth, and regional distinctions (with western courtsmost likely to advance individual rights). This study representsonly a small step in understanding an area of judicial behaviorthat has been long ignored in the political science literature.     

Supreme Court Justices’ Economic Behaviour: A Multilevel Model Analysis

Supreme Court justices are overlooked, but important, national policy‐making players who render final and consequential decisions in cases on economic conflicts. The research question asks what forces explain the decisional behaviour of Supreme Court justices in economic rights cases between a private and a public party. Theoretically, the decisional behaviour of an individual justice is a function of his or her notion as to what makes ‘good’ law, pursued in a cultural‐collegial setting that is oriented by majoritarian requirements, while constrained by the legal nature of the case being considered. Empirically, all economic decisions made by Norwegian Supreme Court justices in five‐justice panels from 1963 to 2012 are analyzed. Our multilevel model demonstrates that individual, collegial and case‐level forces all contribute to explain the justices’ votes. These results suggest that case‐related dynamics, such as who the plaintiff is or the amount of disagreement between justices, matter, but also that ideology – via appointment mechanisms – matters when a nation's high court justices decide economic cases. Understanding the foundational assumptions and the institutional procedures is vital when transporting judicial behaviour models across polities.     

Delaying Justice(s): A Duration Analysis of Supreme Court Confirmations

Presidents traditionally have had great success when nominating justices to the Supreme Court, with confirmation being the norm and rejection being the rare exception. While the confirmation process usually ends with the nominee taking a seat on the Court, however, there is a great deal of variance in the amount of time it takes the Senate to act. To derive a theoretical explanation of this underlying dynamic in the confirmation process, we draw on a spatial model of presidential nominations to the Court. We then employ a hazard model to test this explanation, using data on all Supreme Court nominations and confirmations since the end of the Civil War. Our primary finding is that the duration of the confirmation process increases as the ideological distance between the president and the Senate increases. We also find evidence that suggests that the duration increases for critical nominees and chief justices and decreases for older nominees, current and previous senators, and nominees with prior experience on state and federal district courts .     

Teaching Judicial Politics Through a Supreme Court Simulation

Abstract

This article describes various iterations of a Supreme Court simulation that we developed for undergraduate political science classes. We address when simulations should be used to introduce a topic to students, and when simulations should be used to develop students’ understanding of a topic after introducing it. In the simulations, we played the role of attorneys delivering oral arguments before the Supreme Court, while students played the role of Supreme Court justices. Students questioned attorneys, deliberated in groups, voted on the merits of the case, and explained their decisions. We varied when the simulation was conducted, with one class doing the simulation before a lesson on judicial decision making and two classes doing the simulation following a lesson on judicial decision making. We evaluate the simulation by using results from student questionnaires that assessed the students' interest in judicial politics, their knowledge of the Supreme Court, and their understanding of judicial decision making. We find that the simulation most effectively accomplished the intended learning outcomes when the simulation was conducted after a lesson on decision making in the Supreme Court, rather than before the lesson. In addition, our results demonstrate that the simulation increased students’ interest in the Supreme Court and their desire to learn more about the institution. Our results have implications for political scientists aiming to enhance student learning through simulations.     

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.     

Ideological Proximity and Support for The Supreme Court

Although the Supreme Court is a countermajoritarian institution by design, many scholars have contended that without concrete powers, the Court relies on public support for legitimacy. Accordingly, it is important to understand the relationship between people’s ideological proximity to the Court and their support for it. Existing empirical research suggests a correspondence between public opinion and the Court’s positions, but these studies do not directly compare masses and elites in a common space. To address these issues, we conducted an original survey asking respondents about their positions on ten recently decided Supreme Court cases. This allows us to estimate the positions of citizens and justices on the same ideological scale. Further, while some existing theories of perceptions of judicial legitimacy suggest similar relationships between ideological distance and various types of support for the Court, we propose a theory of heterogeneous responsiveness which posits that citizens’ ideological distance from the Court should be negatively related to their approval of and trust in the institution, but positively related to their support for its countermajoritarian function. Our empirical approach finds support for the theory.     

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.     

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.     

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.     

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.     

Presidents,Supreme Court justices,and racial equality cases: 1954–1984

This research assesses the policy success of presidents since Eisenhower in their appointments to the U.S. Supreme Court in racial equality cases from 1954–1984. The research examines presidential preferences in a much more detailed and sensitive manner than previous research. While past research has used presidential party as a measure of the policy preferences of presidents, we examine policy preferences in a very direct manner. Specifically, the preferences of presidents on racial equality issues are gauged by their public policy statements. These statements serve to tap the degree of liberalness, the level of attention, and the level of concern with judicial actions in racial equality matters. The results demonstrate that presidents have been much more successful in appointing like-minded justices than is suggested by the existing literature. In addition, it is shown that prior judicial experience is not related to presidential success. This is discussed in terms of the perennial debate over the political control of the Supreme Court and the congruence of Court policy making with majoritarian values.     

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.     

Patterns of Activism on State Supreme Courts

This study examines patterns of judicial conflict and policyactivism during 1930–1980 on the supreme courts of California,Michigan, New Jersey, North Carolina, Virginia, and West Virginia.The findings indicate that dramatic shifts from passivity toactivism take place over very short periods of time, and thatwhen a shift to judicial activism does occur, it is due mainlyto a change in court composition involving the introductionof "maverick" justices. Furthermore, of the four courts in thestudy that underwent a transition to activism, none have subsequentlybecome non-activist.     

Towards an Integrated Model of the U.S. Supreme Court's Federalism Decision Making

Disputes involving the boundaries of state versus federal powermake up a substantial portion of the U.S. Supreme Court's docketand have undergone extensive analysis. Yet, the conventionalwisdom regarding the justices’ choices in these casesis that they are highly inconsistent. I argue that this is primarilya function of the failure of scholars to develop a comprehensivemodel of the justices’ federalism decision making. Toremedy this, I introduce an integrated model of the individualjustices’ choices in these cases, which is then subjectedto empirical testing in the Rehnquist Court era (1986–2004).I explore a host of determinants of the justices’ decisionmaking, including attitudinal, institutional, legal, and personalattributes, as well as the role of organized interests in theCourt. The findings reveal that the choices justices make inthese cases are not as discordant as most commentators suggest.Rather, they are relatively predictable through the applicationof an integrated model of judicial choice.     

Opinion writing and acclimation effect

The area of judicial research previously referred to as the freshman effect has generated a substantial amount of interest among Supreme Court scholars. Until recently, however, efforts to establish the existence of this effect have met with mixed success. Hagle (1993a) contends that the mixed results of previous freshman or acclimation effect studies are primarily due to the use of the behavior of the experienced justices as a baseline to measure the behavior of the new justice. Given normal variations in the justices' behavior, using the behavior of experienced justices to determine whether a new justice experienced acclimation effects may lead to a false conclusion. In this study we examine the opinion writing behavior of 24 justices who joined the Court from the 1943 through the 1993 Terms. While controlling for the number of cases, we use each justice's own later opinion writing behavior in each of two control periods as a baseline against which to judge whether that justice experienced an acclimation effect in his or her first-term opinion writing. We also compare the opinion writing behavior of Rehnquist and the other three Chief Justices with that of the Associate Justices. Our results indicate that a substantial number of the justices (67%) manifest significant acclimation effects in their opinion writing for one or both of the two control periods. Our results also show a significant difference in Rehnquist's opinion writing behavior as he moved from Associate Justice to Chief Justice and a substantial difference between the opinion writing behavior of the Chief Justices as compared to the Associate Justices.