Law Review
Legal Constraints on Supreme Court Decision Making: Do Jurisprudential Regimes Exist?
Jeffrey Lax & Kelly Rader
Journal of Politics, April 2010, Pages 273-284
Abstract:
The founding debate of judicial politics - is Supreme Court decision making driven by law or politics? - remains at center stage. One influential line of attack involves the identification of jurisprudential regimes, stable patterns of case decisions based on the influence of case factors. The key test is whether the regime changes after a major precedent-setting decision, that is, whether the case factors are subsequently treated differently by the Supreme Court justices themselves so that they vote as though constrained by precedent. We analyze whether binding jurisprudential regime change actually exists. The standard test assumes votes are independent observations, even though they are clustered by case and by term. We argue that a (nonparametric) "randomization test" is more appropriate. We find little evidence that precedents affect voting.
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Solicitor General Influence and Agenda Setting on the United States Supreme Court
Ryan Black & Ryan Owens
Harvard Working Paper, March 2010
Abstract:
Do Solicitors General influence Supreme Court justices to behave differently than they would like? If so, are there limits on such influence? Using archival data, we find strong evidence of Solicitor General influence. In a substantial number of cases at the Supreme Court's agenda-setting stage, justices follow Solicitor General recommendations even when they are completely opposed to them. At the same time, we observe that law exerts strong influence. Justices are significantly less likely to follow Solicitor General recommendations that contravene important legal factors.
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Friends of the Circuits: Interest Group Influence on Decision Making in the U.S. Courts of Appeals
Paul Collins & Wendy Martinek
Social Science Quarterly, June 2010, Pages 397-414
Objective: Though there is an extensive literature focused on the participation and efficacy of interest group amici curiae in the U.S. Supreme Court, there is little rigorous analysis of amici curiae in the U.S. Courts of Appeals. Here, we systematically analyze the influence of amicus curiae briefs on U.S. Court of Appeals decision making to provide insights regarding both judicial decision making and the efficacy of interest groups.
Methods: We use a probit model to capture influences on appellant success in the courts of appeals from 1997-2002.
Results: We find that amicus briefs filed in support of the appellant enhance the likelihood of that litigant's probability of success, but that amicus briefs filed in support of the appellee have no effect on litigation outcomes. Conclusion: Amici can help level the playing field between appellants and appellees by serving to counter the propensity to affirm in the U.S. Courts of Appeals.
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Ryan Black & Ryan Owens
Harvard Working Paper, January 2010
Abstract:
Do United States Supreme Court justices invoke the aid of executive branch officials to help them overcome congressional constraints? We examine archival data collected from the private papers of former Justice Harry A. Blackmun to analyze the conditions under which Supreme Court justices force the Solicitor General to participate in cases. We find that in addition to legal considerations, justices invite the SG to participate in cases so as to gain information that will aid them in determining whether the president will use his veto to protect the Court's decision against congressional override attempts. Justices are between 44% and 56% more likely to invite the SG when they require the president's veto to protect their decisions. These results hold across a host of alternative models of legislative decision making and other various modeling specifications.
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Have We Come a Long Way, Baby? The Influence of Attorney Gender on Supreme
Court Decision Making
John Szmer, Tammy Sarver & Erin Kaheny
Politics & Gender, March 2010, Pages 1-36
Abstract:
While the impact of an attorney's sex has been examined with respect to trial court processes (e.g., jury decision making), no one has previously studied its effects on appellate court decision making. In this article, we argue that the application of gender schemas by some justices results in a devaluing of the arguments made by women litigators. Our findings suggest that women orally arguing attorneys are less likely to receive a favorable vote by a justice than are the male counsel they oppose and that conservative justices are more likely than their liberal counterparts to vote against litigants represented by female counsel at oral argument. This suggests that the ideology of elites influences whether they apply gender schemas in a negative fashion. We also find that justices are more likely to side with female lawyers in women's issues cases, indicating that the justices' perceptions of female lawyer expertise are enhanced in those cases. These findings persist even after controlling for multiple factors, including attorney expertise, the sex of the justice, amicus participation, party capability, and judicial ideology.
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Scott Barclay
Perspectives on Politics, March 2010, Pages 111-126
Abstract:
In 2006, President Bush publicly stated that, in relation to the same-sex marriage issue, "activist judges" were thwarting the preferred policy of the elected representatives and the expression of popular will embodied in popular initiatives and constitutional amendments. Notwithstanding the philosophical discussion of the constitutionally assigned role of courts in the political system and the idea of judicial independence, President Bush's statement raises an interesting empirical question: In the case of same-sex marriage, have state and federal courts really acted in direct opposition to the expressed policy preferences of current or recent legislative majorities or overturned popular initiatives and constitutional amendments? Using evidence from state and federal legislative and judicial action around same-sex marriage primarily from the fifteen years preceding President Bush's 2006 statement, I argue that, with some rare exceptions, judges can not easily be identified as "activist" on the issue of same-sex marriage even if we assess their actions according to President Bush's criteria.
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Hunter Smith
Yale Working Paper, February 2010
Abstract:
This article investigates the hitherto unexamined movement among nineteenth-century and early twentieth-century jurists to prohibit the publication of dissenting opinions in courts of last resort. Lawyers who wished to abolish dissenting opinions were animated by a changing conception of what constitutes a court and the nature of judicial and governmental authority. In accord with larger trends in American society, these lawyers increasingly viewed authority as institutional and maintained that judicial officeholders should maintain a stricter separation between their private views and the pronouncements of the laws in their public capacity as a state official. Further, they also decisively rejected an early nineteenth-century conception of a court as a meeting of individual judges, adopting in its place a vision of a court as a composite, anonymous institution. This vigorous advocacy at the dawn of the twentieth century for courts to emphasize the institutional nature of their authority is remarkable today precisely because of its colossal failure at achieving its desired results: despite massive expansions of the institutional capacities of federal and state judiciaries throughout the nineteenth and twentieth centuries, at the end of the twentieth century American jurists were almost unanimous in their agreement that judicial legitimacy is predicated on the individual, non-institutional character of judging. In the 1980s and 1990s, the specter haunting the legal profession was that of a bureaucratized judiciary. This paper is an important first step at taking account of the historically embedded reasons that American legal culture insists on a strict demarcation between judicial and bureaucratic authority.
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Ryan Black & Ryan Owens
Harvard Working Paper, December 2009
Abstract:
Given scarce resources, Supreme Court justices hear cases that maximize their auditing function. Building on existing theories, we argue that justices rely on the identity of lower court judges and the ideological disposition of lower court decisions to decide which cases to review. We find that justices are most likely to audit disagreeable lower court decisions rendered by ideologically disagreeable judges and are least likely to review agreeable lower court decisions rendered by ideologically agreeable judges. Further, when faced with the same ideologically disagreeable lower court decision, justices are less likely to review those decisions made by ideological allies than those made by ideological foes.
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Leo Katz
Journal of Legal Studies, January 2010, Pages 1-31
Abstract:
Laws are known to be replete with loopholes. The reason is generally thought to lie in the divergence between the text and the purpose of a law. Practical constraints supposedly make laws unavoidably over‐ or underinclusive. Lawyers who exploit loopholes are thought to be taking advantage of that over‐ and underinclusiveness. This essay offers a different perspective. Most loopholes have nothing to do with the over‐ or underinclusiveness of rules. This is best seen by exploring a particular subset of rules that reveal most clearly what is going on: the rules of voting. Arrow's famous theorem teaches us that all halfway decent voting rules are vulnerable to agenda manipulation. Fundamentally, it will turn out, all legal rules are analogous to voting rules and all loophole exploitation analogous to agenda manipulation. The loophole‐exploiting lawyer no more deserves to be criticized, sanctioned, or otherwise frustrated in his efforts than does the shrewd parliamentarian.
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The Separation of Powers and Supreme Court Agenda Setting
Ryan Owens
Harvard Working Paper, September 2009
Abstract:
This study employs the first systematic, empirical analysis that relies on archival data to examine whether the separation of powers influences justices' agenda votes. It spatially models how justices set the Court's agenda under a sincere approach as well as an SOP approach and compares the competing expectations derived therefrom. The results suggest that legislative and executive preferences fail to influence justices' votes. Across every model tested, the data show justices uninfluenced by the separation of powers. These results provide a strong rejoinder to SOP models, since the Court's agenda stage is the most likely stage of the decision making process to show signs of an SOP effect.
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The Impact of Race on the Pretrial Decision
Tina Freiburger, Catherine Marcum & Mari Pierce
American Journal of Criminal Justice, June 2010, Pages 76-86
Abstract:
This study examined the effect of race on the pretrial release decision for drug offenders. Although this decision point has not been examined as extensively as the final sentencing decision, it is a critical discretion point which impacts defendants' future sentencing outcomes. The results found that race had a significant impact on judges' decisions to release a defendant on recognizance, with black defendants less likely to receive this release status. Race was not significant, however, in the decision of bail amount or in the likelihood to post bail. These results are consistent with the focal concerns perspective which suggests that black defendants are viewed by courts as more dangerous and blameworthy and thereby, less likely to be released on their own recognizance.