Supreme Court consensus and dissent: Estimating the role of the selection screen

From 1940 to the present, the on-the-record consensus among Supreme Court justices fell precipitously relative to historical benchmarks. This paper first shows that Court consensus is closely associated with measures of consistency and stability of Court rulings. Then, an empirical model of Supreme Court consensus and dissension is estimated over 1800–2001 in which characteristics of the presidential–senatorial screen are key variables. Using OLS and controlling for several other influences, the results show that variations in consensus are linked to two components of the selection screen – the party of the confirming Senate and split party nominations and confirmations. Other than the selection screen, the size of the federal judiciary and consensus norms in the recent past are important influences. These results are also confirmed using GARCH and regime-shifting econometric methods.     

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.     

Partisans in Robes: Party Cues and Public Acceptance of Supreme Court Decisions

The public perceives the Supreme Court to be a legal institution. This perception enables the Court's legitimacy‐conferring function, which serves to increase public acceptance of its decisions. Yet, the public acknowledges a political aspect to the Court as well. To evaluate how the public responds to the different images of the Supreme Court, we investigate whether and how depictions of specifically partisan (e.g., Republican) Court rulings shape public acceptance of its decisions while varying institutional, legal, and issue characteristics. Using survey experiments, we find that party cues and partisanship, more so than the imprimatur of the Court, affect public acceptance. We also find that polarization diminishes the effect of party cues. Attributing a decision to the Court does little to increase baseline acceptance or attenuate partisan cue effects. The Court's uniqueness, at least in terms of its legitimacy‐conferring function, is perhaps overstated.     

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.     

Inter-Institutional Dynamics: Assessments of the Supreme Court in a Separation of Powers Context

Using data collected from a survey experiment, we examine whether information about the nature of the interactions between the Supreme Court and Congress influences respondents’ assessments of the Court. We find that political sophistication is key to understanding how individuals incorporate the separation of powers context into their evaluations of the Court. Political sophisticates give the Court its highest assessments when told that the Court and Congress are often in disagreement, and that Congress is most responsible for this disagreement. Assessments of the Court are significantly lower, however, when sophisticates believe that high levels of disagreement between the Court and Congress are due to the Court’s actions and when these respondents believe that the Court and Congress agree a high proportion of the time. These results suggest that for political sophisticates, the Court’s institutional standing is related to the balance it strikes between deference to Congress and judicial independence.     

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.     

The Federal Judiciary and Northern School Desegregation: Law, Politics, and Judicial Management

Using a three-tier analysis, this article examines how the interplayof political and legal factors has influenced the developmentof school desegregation policy in Michigan and Ohio. The authorconcludes, among other things, that the district courts, theSixth Circuit Court of Appeals, and the U.S. Supreme Court aresensitive to the influences of politics and legalism, but thatthe responses of the three kinds of federal courts are different.Recognizing a constitutional imperative to eradicate segregation,district courts have emphasized the participation of electedofficials and affected community groups in the remedial process.Because of isolation and low visibility, the Sixth Circuit hastended to pursue a more tenacious policy course than eitherthe district court or the Supreme Court. Meanwhile, the U.S.Supreme Court has generally championed the cause of local officialsby attempting to balance the interest of eliminating segregationwith that of protecting the integrity of state and local decisionmakers.     

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.     

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.     

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.     

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.     

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.     

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.     

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.     

Information and party voting in “semipartisan” judicial elections

Research on the relationship between the quantity of information that voters possess and their party voting behavior in partisan elections has produced mixed and confusing empirical results. In an effort to provide a broader perspective, this paper explores that relationship in nonpartisan elections contested by candidates of opposing parties. The paper analyzes survey data on two 1984 contests for seats on the Ohio Supreme Court, using the presidential race for comparison. Despite a highly partisan campaign, party defections by voters were far more common in the supreme court races than in the presidential race, reflecting the importance of party designations on the ballot as a source of information on candidates' party affiliations. At the individual level, levels of information had differing effects in the two supreme court races and for Democratic and Republican voters; this finding suggests that the impact of imformation levels on voters' choices is conditioned by the content of information in particular campaigns.     

Damned If You Do and Damned If You Don’t: Title VII and Public Employee Promotion Disparate Treatment and Disparate Impact Litigation

What has been the impact of the U.S. Supreme Court’s 2009 decision in Ricci v. Destefano on the selection and promotion practices of public employers?; Relying solely on circumstantial evidence, the Supreme Court held that the Civil Service Board of New Haven, Connecticut, had engaged in Title VII disparate treatment discrimination by refusing to certify the results of a promotion examination that led, in turn, to a disparate impact on African American firefighters. To limit the discretion of public employers to disregard such selection and promotion exam results, the Ricci majority held that a public employer must “have a strong basis in evidence to believe it will be subject to disparate‐impact liability if it fails to the take the race‐conscious discriminatory action.” This article argues that the decision effectively prohibits public employers from rejecting the results of selection and promotion instruments, even though there is evidence that screening instruments inequitably affect protected groups. It also forces public employers to become more careful in developing selection and promotion examinations or face the possibility of costly Title VII litigation.     

Federalism and the Constitutional Right to Keep and Bear Arms

Until recently, the federal courts agreed that the Second Amendmentprotects the interest of states in maintaining their own militias.In United States v. Emerson, the U.S. Court of Appeals for theFifth Circuit rejected this consensus, and held that the Constitutionprotects a right of private individuals to keep and bear arms.The fifth circuit's position is more plausible than the consensusview, and the arguments for treating the Second Amendment asa kind of federalism device are weak. A different set of federalismissues is raised by the prospect that the Supreme Court mightadopt the fifth circuit's position, and then take the next stepof applying the Second Amendment to the states through the FourteenthAmendment. Finally, Emerson shows how certain technical legaldoctrines that protect the dignity of he states can operateto strengthen the federal government's ability to undermineprotections afforded by the Second Amendment.     

Identifying the Median Justice on the Supreme Court through Multidimensional Scaling: Analysis of “Natural Courts” 1953–1991

Given the fundamental unidimensionality in thedata on Supreme Court voting patterns1951–1993 we observe, we are able todetermine the identity of ``median'' membersof each court in a fashion that does notrequire subjective coding of the extent towhich particular cases reflect left-rightissues. Also, while the exact numericalvalues of MDS-obtained locations cannot becompared across different ``natural courts'',the positions of Supreme Court justicesacross their careers relative to the courtson which they served can be traced. Ourdata show overwhelming quantified evidenceof a very strong rightward drift (relativeto our MDS defined dimensions) in thecomposition of the court as we move fromthe Warren Court to the Burger Court, andagain as we move from the Burger Court tothe Rehnquist Court.     

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 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.