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Supreme
Court Confirmation Hearings and Constitutional Change. With Lori A. Ringhand.
2012. New York, NY: Cambridge University Press.
Let’s
Talk: Judicial Decisions at Supreme
Court Confirmation Hearings.
With Anna Batta, Tom Miles, and Lori A.
Ringhand. 2012. Judicature 96(1):
7-15.
We bring new evidence to bear on the relevance of the Senate Judiciary Committee confirmation hearings of U.S. Supreme Court nominees by investigating the discussion of judicial decisions at the hearings. We find that a substantial percentage of hearing dialogue relates to the examination of court cases. In recent decades, one out of every four questions involves the concrete discussion of judicial decisions. While the vast majority of these cases concern U.S. Supreme Court precedents, cases decided by other courts are also debated at the hearings. Though some seminal centuries-old decisions are broached at the hearings, most of the cases scrutinized involve relatively recent precedents. We also find that Democratic and Republican senators exhibit some stark differences in the issues areas implicated in the canvassing of judicial decisions. Taken as a whole, this research makes a novel contribution to our understanding of the Supreme Court confirmation process, the impact of court decisions, and the partisan nature of federal judicial selection.
On the
Relationship between Public Opinion and Decision Making on the
U.S. Courts of Appeals.
With Bryan Calvin and Matthew Eshbaugh-Soha. 2012. Political
Research Quarterly 64(4): 736-748.
The
authors explore
whether the federal courts act as countermajoritarian institutions by
investigating the influence of public mood on decision making in the
U.S.
Courts of Appeals from 1961 to 2002. The results indicate that public
opinion
affects courts of appeals decision making indirectly through judicial
replacements and institutional constrains from Congress, but the
authors fail
to uncover evidence that courts of appeals judges respond directly to
changes
in public opinion. They conclude that, absent membership turnover in
the
circuit or in Congress, the courts of appeals are not responsive to the
will of
the public.
Lower
Court Influence on U.S. Supreme Court Opinion Content.
With Pamela C. Corley and Bryan Calvin. 2011. Journal of
Politics 73(1): 31-44.
Despite the importance of Supreme Court opinions for the American polity, scholars have dedicated little systematic research to investigating the factors that contribute to the content of the justices’ opinions. In this article, we examine the ability of lower federal courts to shape the content of Supreme Court opinions. We argue that lower court opinions will influence the content of the Court’s opinions to the extent that the justices perceive that integrating language from lower court opinions will aid them in making efficacious law and policy. Utilizing plagiarism detection software to compare lower federal court opinions with the majority opinions of the Supreme Court during the 2002–2004 terms, we uncover evidence that the Court systematically incorporates language from the lower federal courts into its majority opinions.
Cognitive
Dissonance on
the U.S. Supreme Court.
2011. Political
Research Quarterly 64(2):
362-376.
This
research examines the applicability of cognitive dissonance theory to
explain a
judge’s decision to author or join a separate opinion. The
author proposes
that, when a judge casts a counterattitudinal vote, that judge will
endeavor to
reduce the aversive consequences of being viewed as an inconsistent
decision
maker by justifying his or her attitudinally incongruent vote choice to
the
public in a separate opinion. The author tests this possibility by
examining
U.S. Supreme Court justices’ decisions to author or join
concurring and
dissenting opinions during the 1946 to 2001 terms. The empirical
results
provide qualified support for the use of separate opinions as
dissonance
reduction mechanisms, suggesting that dissonance theory both is
applicable to
the actions of elite decision makers and enjoys validity outside of a
laboratory
setting.
The
Small Group Context: Designated District Court Judges in the U.S.
Courts of Appeals. With
Wendy L.
Martinek. 2011. Journal of Empirical Legal Studies 8(1): 177-205.
Decision
making in the U.S. courts of
appeals occurs primarily in three-judge panels. A substantial number of
cases
are decided by panels that include a judge who is a district court
judge
serving temporarily on the appeals bench. This means that court of
appeals
decision making is often a function of small groups with temporary
members.
Here, we examine whether designated district court judges behave
differently
than their court of appeals colleagues when they cast their votes in
cases they
are deciding as members of three-judge appellate panels. In doing so,
we
suggest a profitable direction for theory building vis-à-vis
judicial decision
making. Our analysis of the ideological direction of the votes judges
cast, as well
as the variance in those votes, indicates that judges on three-judge
panels are
influenced by the preferences of their fellow panelists, and that
designated
district court judges, while no more variable than their court of
appeals
colleagues, are more susceptible to the influence of their peers than
are
regular members of the courts of appeals in a nontrivial number of
cases.
May
It
Please the Senate: An Empirical Analysis of Senate Judiciary
Confirmation
Hearings of Supreme Court Nominees, 1939-2009.
With Lori A. Ringhand. 2011. American University
Law Review 60(3):
589-641.
This
paper examines the questions asked
and answers given by every Supreme Court nominee who has appeared to
testify
before the Senate Judiciary Committee since 1939. In doing so, it uses
a new
dataset developed by the authors. This database, which provides a
much-needed
empirical foundation for scholarship in emerging areas of
constitutional law
and political science, captures all of the statements made at the
hearings and
codes these comments by issue area, subissue area, party of the
appointing
president, and party of the questioning senator. The dataset allows us
to
quantify for the fist time such things as which issues are most
frequently
discussed at the hearings, whether those issues have changed over time,
and
whether they vary depending on the party of the appointing president
and the
party of the questioning senator. We also investigate if questioning
patterns
differ depending on the race or gender of the nominee. Some of our
results are
unsurprising: for example, the hearings have become longer. Others,
however,
challenge conventional wisdom: the Bork hearing is less of an outlier
in
several ways than is frequently assumed, and abortion has not dominated
the
hearings. We also discover that there is issue area variation over
time, and
that there are notable disparities in the issues addressed by
Democratic versus
Republican senators. Finally, we find that female and minority nominees
face a
significantly different hearing environment than do white male
nominees.
Who
Participates as Amici Curiae in the U.S. Courts of Appeals?
With Wendy L. Martinek. 2010. Judicature 94(3):
128-136.
Though
we know a great deal about amici curiae in
the U.S. Supreme Court – who participates, why they
participate, the nature of
their arguments, and if their participation matters for case outcomes
– we know
very little about amici curiae in the U.S. courts of appeals. In this
paper, we
investigate the nature of group participation in court of appeals cases
using
data from the Update to the U.S. Courts of Appeals Database
(1997-2002),
supplemented with extensive original data collection. Our results
indicate that
a diverse assortment of interest groups utilize the amicus curiae brief
in
pursuit of their legal and political goals in these significant
policymaking
venues.
Friends of the Circuits: Interest
Group Influence on
Decision Making in the U.S. Courts of Appeals.
With Wendy L. Martinek. 2010. Social Science Quarterly
91(2): 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.
Gender, Critical Mass, and Judicial
Decision Making. With
Kenneth L. Manning and Robert A.
Carp. 2010. Law & Policy 32(2): 260-281.
We
examine the role of gender in legal decision making by applying
critical mass
theory to the U.S. federal district courts. We analyze whether
behavioral
differences manifest themselves in the decision-making proclivities of
male and
female judges, contingent on the existence of a critical mass of female
judges
at a court point (i.e., each city in which a district court is
located). Our
results indicate that women jurists exhibit distinctive behavior in
certain
cases when there is a critical mass of women at a court point. These
differences are most significant in criminal justice cases; modest
differences
between men and women are also identified in civil rights and liberties
cases.
Gender is not significant in labor and economic regulation cases. These
findings suggest that the increasing presence of women on the federal
bench
could have substantial policy ramifications in the American polity.
Environmental Enforcement in Dire
Straits: There is no
Protection for Nothing and No Data for Free.
With
Victor B. Flatt. 2009. Notre
Dame Law Review 85(1): 55-87.
Those
charged with drafting and enforcing our environmental laws have had to
work
with little or no information about whether or not the programs are
actually
working properly. There are a host of reasons for this, many
of them
having to do with availability of data that can be examined
empirically.
Using newly available data on state actions in environmental
enforcement, and a
new dataset of state environmental expenditures which they created, the
authors
of this article are able to examine for the first time the relationship
between
state environmental expenditures and effectiveness of state
environmental
enforcement for all permitted sources. They conclude that
state expenditures
on environmental programs are strongly associated with effective
environmental
compliance, which has important implications for environmental law and
policy.
The authors also examine the debate over the effectiveness of
cooperative vs.
deterrence based enforcement, relate that to findings on state
expenditures,
and make suggestions for improving the availability of data and
environmental
enforcement generally.
Counteractive Lobbying in the U.S.
Supreme Court.
With Lisa A. Solowiej. 2009. American Politics Research 37(4):
670-699.
Theories
of counteractive lobbying assert that interest groups lobby for the
purpose of
neutralizing the advocacy efforts of their opponents. We examine the
applicability of counteractive lobbying to explain interest group
amicus curiae
participation in the U.S. Supreme Court’s decisions on the
merits. Testing the
counteractive lobbying hypotheses from 1953 to 2001, we provide strong
support
for the contention that interest groups engage in counteractive
lobbying in the
nation’s highest court. Our findings indicate that, like the
elected branches
of government, the Supreme Court is properly viewed as a battleground
for
public policy in which organized interests clash in their attempts to
etch
their policy preferences into law.
Friends of the Supreme Court: Interest
Groups and Judicial
Decision Making. 2008.
New York, NY:
Oxford University Press.
The
U.S. Supreme Court is a public policy battleground in which organized
interests
attempt to etch their economic, legal, and political preferences into
law
through the filing of amicus curiae ("friend of the court") briefs.
In Friends of the Supreme Court: Interest Groups and Judicial
Decision
Making, Paul M. Collins, Jr. explores how organized interests
influence the
justices' decision making, including how the justices vote and whether
they
choose to author concurrences and dissents. Collins presents theories
of
judicial choice derived from disciplines as diverse as law, marketing,
political science, and social psychology. This theoretically rich and
empirically rigorous treatment of decision making on the nation's
highest
court, which represents the most comprehensive examination ever
undertaken of
the influence of U.S. Supreme Court amicus briefs, provides clear
evidence that
interest groups play a significant role in shaping the justices'
choices.
International Conflicts and Decision
Making on the Federal
District Courts.
With
Daniel A. Norton, Kenneth L. Manning, and Robert A. Carp. 2008. Justice
System Journal 29(2): 121-144.
The
international environment influences domestic politics, particularly
during
times of war. The traditional governmental response to such crises is
to
curtail the civil rights and liberties of Americans in the name of
national
security. Often, challenges to these restrictive policies find their
way into
the federal court system. However, little is known about the systematic
effects
of these conflicts on the choices jurists make. To redress this
deficiency, we
investigate whether international conflicts influence the decision
making of
federal district-court judges by examining the choices those judges
make during
periods of both war and peace. In addition, we consider whether male
and female
jurists react differently to periods of international unrest. We find
that
female judges do respond to wars, deciding cases more liberally than in
peacetime, but male judges exhibit no response. As such, our results
suggest
that gender is an important consideration in evaluating the judicial
response
to war.
The Consistency of Judicial Choice. 2008.
Journal of Politics 70(3): 861-873.
Despite
the fact that scholars of judicial politics have developed reasonably
well-specified models of the voting behavior of U.S. Supreme Court
justices,
little attention has been paid to influences on the consistency of the
choices
justices make. Aside from the methodological problems associated with
failure
to account for heteroskedasticity with regard to the
justices’ voting behavior,
I argue that variance in judicial choice is also of theoretical import.
Simply
put, by uncovering influences on the stability of judicial choice, a
more complete
understanding of judicial decision making is provided. I explore this
possibility by developing a theoretical framework that identifies
influences on
the consistency of judicial choice, which are then subjected to
empirical
testing. I show that the stability of judicial decision making is
affected by
attitudinal and strategic factors, as well as the Court’s
informational
environment. The result is a more fully integrated model of Supreme
Court
decision making.
The Solicitor General’s
Amicus Curiae Strategies in the
Supreme Court. With Chris
Nicholson. 2008. American
Politics Research 36(3): 382-415.
Scholars
have devoted a great deal of research to investigating the role and
influence
of the U.S. solicitor general (SG) as amicus curiae in the Supreme
Court. Yet,
we know little about the SG’s decision to file an amicus
brief and how this
relates to the SG’s success on the merits. We fill this void
by examining
legal, political, and administrative factors that affect the
SG’s decision to
participate as amicus curiae. We subject our hypotheses to empirical
testing
using data on the 1953 to 1999 Supreme Court terms by linking the
SG’s decision
to file an amicus brief to the SG’s ultimate success on the
merits, employing a
Heckman-style selection model. We find that the SG’s decision
to file an amicus
brief is influenced by legal, political, and administrative
considerations,
suggesting that the SG is best viewed through the incorporation of a
variety of
theoretical perspectives.
Amici Curiae and Dissensus on the U.S.
Supreme Court.
2008.
Journal of Empirical Legal
Studies 5(1): 143-170.
A
great deal of empirical research has focused on explaining why U.S.
Supreme
Court Justices partake in nonconsensual opinion writing. However,
little
attention has been paid to the role of organized interests in
contributing to a
Justice’s decision to write or join a separate opinion. I
argue that a
Justice’s decision to engage in this behavior is a partial
function of interest
group amicus curiae participation in the Court. By providing the
Justices with
a myriad of information regarding how cases should be resolved,
organized
interests create ambiguity in the Justices’ already uncertain
decision making,
at the same time providing them with a substantial foundation for
concurring or
dissenting opinions. I subject this argument to empirical validation by
examining the Justices’ decisions to author or join regular
concurring, special
concurring, and dissenting opinions during the 1946–1995
terms. The results
indicate that organized interests play a considerable role in
increasing
dissensus on the Supreme Court.
Transforming the United States Courts
of Appeals Data Bases
in Stata.
2008.
Law & Courts 18(1): 19-22.
Scholars
studying the U.S. Courts of Appeals overwhelmingly employ
one of two publicly available datasets (Kuersten and Haire 2007; Songer
2007).
While these data bases contain a treasure trove of information, they
are
organized such that the unit of analysis is the case, which makes some
research
questions more easily tackled than others. This article provides easily
implemented Stata codes to reliably transform the unit of analysis in
these
datasets from the case to the judge-vote, thus allowing scholars to
investigate
Court of Appeals decision making at the level of the individual judge.
Interest Group Participation,
Competition, and Conflict in
the U.S. Supreme Court. With
Lisa A. Solowiej. 2007. Law & Social Inquiry
32(4): 955-984.
In
this article, we analyze how pluralistic, competitive, and
conflictual interest group amicus curiae participation is in the U.S.
Supreme
Court. Examining participating organizations and briefs during the 1995
term,
we address three inquiries. First, we scrutinize the types of organized
interests who participate as amici curiae. We find that the Court is
open to a
wide array of interests and that particular types of groups do not
dominate
amicus activity. Second, we analyze the frequency with which amici file
briefs
on opposing sides of dispute. We reveal few strict patterns of
competition,
suggesting that Supreme Court cases are salient to a diverse spectrum
of
interest groups, many of which are not usually thought of as being in
competition with one another. Third, we investigate how often and which
amici
directly cite one another for purposes of invalidating each
other’s
argumentation. While amici have a great deal of opportunity for this
form of
direct conflict, it is surprisingly rare. Nonetheless, when amici
engage in
this express form of discord, they play a clear role in shaping the
flow of
information at the Court.
Towards an Integrated Model of the
U.S. Supreme Court's
Federalism Decision Making. 2007.
Publius: The
Journal of Federalism 37(4): 505-531.
Disputes
involving the boundaries of state versus federal power make up a
substantial
portion of the U.S. Supreme Court’s docket and have undergone
extensive
analysis. Yet, the conventional wisdom regarding the
justices’ choices in these
cases is that they are highly inconsistent. I argue that this is
primarily a
function of the failure of scholars to develop a comprehensive model of
the
justices’ federalism decision making. To remedy this, I
introduce an integrated
model of the individual justices’ choices in these cases,
which is then
subjected to empirical testing in the Rehnquist Court era (1986-2004).
I
explore a host of determinants of the justices’ decision
making, including
attitudinal, institutional, legal, and personal attributes, as well as
the role
of organized interests in the Court. The findings reveal that the
choices
justices make in these cases are not as discordant as most commentators
suggest. Rather, they are relatively predictable through the
application of an
integrated model of judicial choice.
Lobbyists before the U.S. Supreme
Court: Investigating the
Influence of Amicus Curiae Briefs. 2007.
Political Research Quarterly 60(1): 55-70.
Despite
the fact that amicus curiae participation is the most common method of
interest
group activity in the judicial arena, there is little consensus as to
whether
this means of participation influences the decision making of the U.S.
Supreme
Court. To redress this state of affairs, this research investigates the
affect
of amicus briefs on the ideological direction of the Court’s
decisions, with
particular attention given to theoretical and methodological issues
that have
gone unexplored in previous studies. Analyzing group influence during
the 1946
to 1995 terms, the results provide particularly robust evidence that
pressure
groups are effective in shaping the Court’s policy outputs.
These findings
therefore indicate that elite decision makers can be influenced by
persuasive
argumentation presented by organized interests.
Transforming the Original U.S. Supreme
Court Judicial
Database: An Alternative Approach for use with Stata. 2006.
Law &
Courts 16(1): 22-24.
One
of the most commonly employed datasets on the U.S. Supreme
Court is ALLCOURT, the Original United States Supreme Court
Judicial
Database. Yet, the structure of ALLCOURT is set up
such that the case
is the unit of analysis, which makes certain types of research
questions more
easily broached than others. This article provides an easily
implemented
code for Stata that allows users to reliably transform the unit of
analysis in
ALLCOURT from the case to the justice-vote.
Friends of the Court: Examining the
Influence of Amicus Curiae
Participation in U.S. Supreme Court Litigation. 2004.
Law
& Society Review 38(4): 807-32.
Amicus
curiae participation is a staple of interest group activity in the U.S.
Supreme
Court. While a reasonably large body of scholarship has accumulated
regarding
the effectiveness of this method of participation, little attention has
been
paid to examining the reasons why amicus participation might increase
litigation
success. In this article I test two separate, but not mutually
exclusive,
theories as to why amicus briefs may be effective. The first, the
affected
groups hypothesis, suggests amicus briefs are influential because they
signal
to the Court how many groups and individuals will be potentially
affected by
the decision. The second, the information hypothesis, proposes that
amicus
briefs are effective because they provide the Court with added
information that
buttresses the arguments of the direct parties. When subjected to
empirical
verification the results indicate that, not only does amicus
participation
increase litigation success, but also that this influence may be best
explained
by the information hypothesis.
Variable Voting Behavior on the
Supreme Court: A
Preliminary Analysis and Research Framework. 2004.
Justice
System Journal 25(1): 57-74.
Though
the Supreme Court rarely overrules itself, when it does, justices who
vote to
overrule violate both a legal norm and, for a nontrivial number of
justices, an
empirical regularity. First, in voting to overrule, justices defy the
doctrine
of stare decisis, their duty to follow the
Court’s precedents. Second,
in almost 30 percent of such rulings, justices who voted to establish
precedents subsequently vote to overrule the very precedents they
helped
establish, thus breaking from the expectations of the attitudinal
model. In
this note, I describe the justices’ behavior in
precedent-overruling cases
during the Warren, Burger, and Rehnquist Courts. In addition, I develop
a
research framework to aid in understanding this variable behavior on
the part
of the justices. A number of relevant research questions are
considered. Does
ideology affect the decision to support a precedent and subsequently
vote to
overrule it? Are majority opinion authors less likely to exhibit such
variable
behavior than other members of the majority coalition? Is the decision
to
concur evidence of weak preferences for precedents? Are freshman
justices more
likely to exhibit unstable voting behavior in precedential cases as
compared to
their more senior counterparts? I address these questions as I examine
the
unique circumstances in which justices who participated in
precedent-setting
cases had the opportunity to reconsider their votes in
precedent-overruling
cases.
Going
Public On Supreme Court Decisions. With
Matthew Eshbaugh-Soha.
2013. Paper Presented at the 109th Annual Meeting of the American
Political Science
Association, Chicago, Illinois, August 29-September 1.
The
Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content.
With
Pamela C. Corley and Jesse Hamner.
2013. Paper Presented at the 109th Annual Meeting of the American
Political Science Association, Chicago, Illinois, August 29-September
1.
The
Institutionalization of Supreme Court Confirmation Hearings.
With
Lori A. Ringhand.
2013. Paper Presented at the 71st Annual Meeting of the Midwest
Political Science
Association, Chicago, Illinois, April 11-14.
In
1816, the Senate created the Committee on the
Judiciary to assist in its task of providing the president with advice
and
consent regarding appointments to the federal courts. Over the past two
centuries, the work of this committee has evolved in substantial ways.
This
paper uses an original database of confirmation hearing dialogue to
examine how
the Committee’s role in Supreme Court confirmations has changed
over time and
to explore the motivations for those changes. To do this, we
investigate a
variety of developments, including the introduction of nominee
testimony,
opening the hearings to the public, changes in the rigor with which
nominees
are scrutinized, and the equalization of hearing questioning between
majority
and minority party senators. This research demonstrates that
institutional
change is motivated by both legitimizing and instrumental factors.
Me
Too? An
Investigation of Repetition in U.S. Supreme Court Amicus Curiae Briefs.
With
Pamela C. Corley and Jesse Hamner. 2013. Paper Presented at the 71st
Annual Meeting
of the Midwest Political Science Association, Chicago, Illinois, April
11-14.
Academics,
practitioners, and judges have
debated for decades the extent to which amicus curiae briefs provide
novel
information or repeat arguments already available to courts. Despite
the
importance of this question for our understanding of the role and
influence of
interest groups in the judiciary, there has been little systematic
research
addressing this issue. Using plagiarism detection software, we compare
the
content of U.S Supreme Court amicus briefs to that of lower court
opinions,
litigant briefs, and other amicus briefs. We find that amicus briefs
seldom
contain language that is repetitious of other information sources,
indicating
that amicus briefs overwhelmingly provide justices with original
argumentation.
These findings strongly support the informational value of interest
group amici
curiae in Supreme Court litigation.
Super
Precedents, Litmus Tests, and Supreme Court Confirmation Hearings. With
Lori A. Ringhand. 2012. Paper Presented at the 70th Annual
Meeting of the Midwest Political Science Association, Chicago,
Illinois, April
12-15.
We explore the discussion of precedent at Supreme Court confirmation hearings as a means to demonstrate how the hearings represent the opportunity to construct a democratically accepted set of constitutional commitments capable of changing over time. Employing both quantitative and qualitative methods, we investigate the precedents addressed at the hearings and how the treatment of these cases changes as new issues gain constitutional salience with the public. In addition, we use the discussion of precedents at the hearings to illustrate how the Court’s prior decisions are affirmed or rejected by Senators and nominees. In doing so, we pay particular attention to those precedents and issue areas that have become confirmation litmus tests that nominees are expected to embrace or renounce in order to secure confirmation. We conclude that, far from being empty rituals, the confirmation hearings are prized opportunities for vigorous and effective democratic debates about constitutional meaning.
Strategy,
Certainty, and the Decision to Dissent on the U.S. Courts of
Appeals. With
Bethany Blackstone. 2011. Paper
Presented at the 69th Annual Meeting of the Midwest Political Science
Association, Chicago, Illinois, March 31-April 3.
While
there has been a substantial
amount of research on the strategic behavior of political actors, the
literature is rife with conflicting findings. We contribute to this
debate by
examining whether U.S. court of appeals judges dissent for the purpose
of
inviting en banc and/or Supreme Court review. We dissect aspects of
modeling
strategic behavior, particularly relating to problems of
multicollinearity. We
explore these issues by examining the dissenting behavior of court of
appeals judges
from 1970-2002. Our findings indicate that court of appeals judges
strategically dissent, but this behavior is seldom captured by
traditional
quantitative approaches to modeling judicial behavior. Though our focus
is on
court of appeals judges, we are confident our conclusions can inform
studies of
strategic behavior in a variety of political contexts.
Judges
and Friends: The
Influence of Amici Curiae on U.S. Court of Appeals Judges.
With Wendy L. Martinek. 2011. Paper Presented at the 69th Annual
Meeting of the
Midwest Political Science Association, Chicago, Illinois, March
31-April 3.
We contribute to the literatures on political psychology, interest groups, and judicial decision making by examining whether ideology mediates the effect of amicus curiae briefs on decision making in the U.S. courts of appeals. We argue that amicus briefs provide judges with information that influences their voting behavior. Using a dataset specifically collected for this project, we find that amicus briefs influence the decision making of appeals court judges, contingent on a judge’s ideology. Liberal amicus briefs increase the chances that moderately conservative and conservative judges will cast a liberal vote. Conservative amicus briefs enhance the probability that moderate judges and conservative judges will cast a conservative vote. We conclude that this form of interest group lobbying influences judicial decision making and that understanding the efficacy of this strategy requires an appreciation of how political actors process persuasive information.
Public Opinion, Precedents, and
Supreme Court Confirmation
Hearings. With Lori A.
Ringhand. 2011. Paper Presented at the
82nd Annual Meeting of the Southern Political Science Association, New
Orleans,
Louisiana, January 6-8.
We
argue that the Senate Judiciary Committee hearings of Supreme Court
nominees
act as a mechanism by which the public, through its representatives on
the
Committee, shapes, debates, and changes constitutional meaning. To
evaluate
this perspective, we investigate the extent to which the issues
addressed at
the hearings track both public opinion and Supreme Court precedents
from
1955-2006. In so doing, we contribute to two literatures. First, we
expand on
our knowledge of how public opinion is communicated to the justices by
analyzing the extent to which the issues raised at hearings reflect the
salient
political topics of the day. Second, we advance our understanding of
the impact
of Court decisions by exploring how recent Supreme Court precedents
influence
the dialogue at confirmation hearings. Our results indicate that both
public
opinion and Supreme Court precedents play an important role in shaping
the
dialogue at confirmation hearings, highlighting the roles of the
citizenry and
the Supreme Court in directing the future of constitutional change.
Amicus Participation in the U.S.
Courts of Appeals.
With Wendy L.
Martinek. 2010. Paper Presented at the 81st Annual Meeting of the
Southern
Political
Science Association, Atlanta, Georgia, January 7-9.
Though
we know a great deal about amici curiae in the U.S. Supreme Court
– who
participates, why they participate, the nature of their arguments, and
if their
participation matters for case outcomes – we know very little
about amici curiae
in the U.S. courts of appeals. In this paper, we investigate the nature
of
group participation in court of appeals cases using data from the Update
to
the U.S. Courts of Appeals Database (1997-2002), supplemented
with
extensive original data collection. We pay particular attention to the
types of
groups that participate, allowing us to shed new light on the plural
versus
elite nature of interest group participation in these courts. Our
results
indicate that a diverse assortment of interest groups utilize the
amicus curiae
brief in pursuit of their legal and political goals in the courts of
appeals,
indicating that organizational participation in these significant
policymaking
venues is most consistent with pluralist perspectives on organizational
activity.
Lower Court Influence on U.S. Supreme
Court Opinion
Content.
With Bryan Calvin and Pamela C.
Corley. 2009. Paper Presented at the 67th Annual Meeting of the Midwest
Political
Science Association, Chicago, Illinois, April 2-5.
Despite
the importance of Supreme Court opinions for the American polity,
scholars have
dedicated little systematic research to investigating the factors that
contribute to the content of the Court’s opinions. In this
paper, we examine
the ability of lower federal courts to shape the content of Supreme
Court
opinions. We argue that lower court opinions will influence the content
of the
Court’s opinions based on a number of factors, including the
prestige of the lower
court opinion author, the published or unpublished nature of the lower
court
opinion, the ideological compatibility of the lower court opinion
vis-a-vis the
Supreme Court’s decision, the type of lower court opinion,
and the lower court
from which the opinion emanated. Utilizing plagiarism detection
software to
compare lower federal court opinions with the majority opinions of the
Supreme
Court during the 2002-2004 terms, we uncover support for our
hypotheses,
indicating that the Supreme Court systematically incorporates language
from the
lower federal courts into its majority opinions.
On the Relationship between Public
Opinion and Decision
Making in the U.S. Courts of Appeals.
With Bryan Calvin
and Matthew Eshbaugh-Soha. 2009. Paper Presented at the 80th Annual
Meeting
of the
Southern Political Science Association, New Orleans, Louisiana, January
8-10.
The
potentially undemocratic nature of the federal courts has longed flamed
the
fires of the debate regarding the proper role of the judiciary in
American
politics. Extant scholarship concerning the influence of public opinion
on
judicial decision making focuses almost myopically on the U.S. Supreme
Court,
neglecting other significant judicial actors. We explore the extent to
which
the federal courts act as countermajoritarian institutions by
investigating the
impact of public preferences on decision making in the U.S. Courts of
Appeals.
Using data from 1961-2002, we examine whether the courts of appeals are
influenced by public mood, both indirectly through the federal judicial
selection process and directly via responsiveness to changes in circuit
and
national mood. Our results indicate that public opinion affects courts
of
appeals decision making indirectly by way of judicial replacements, but
we fail
to uncover evidence that courts of appeals judges respond directly to
changes
in public opinion at either the regional or national levels. We
conclude that,
absent membership turnover, the courts of appeals are not responsive to
the
will of the public.
Friends of the Circuits: Interest
Group Influence on the
U.S. Courts of Appeals. With
Wendy L.
Martinek. 2008. Paper Presented at the 104th Annual Meeting of the
American
Political Science Association, Boston, Massachusetts, August 28-31.
Though
there is an extensive literature focused on the participation and
efficacy of
amici curiae in the U.S. Supreme Court, there is exceedingly little
rigorous
analysis of amici curiae in the U.S. Courts of Appeals. This deficit is
troubling in several regards, including the fact that much more amicus
activity
occurs in the latter than in the former. In this paper, we contribute
to the
amelioration of this deficiency by systematically analyzing the
influence of
amicus curiae briefs on U.S. Court of Appeals decision making using
Kuersten
and Haire’s (2007) Update to the Appeals Court Data
Base (1997-2002) in
conjunction with data gathered from Westlaw and PACER. Our empirical
analysis
reveals 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.
We
conclude that 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.
Cognitive Dissonance on the U.S.
Supreme Court. 2008.
Paper Presented at the 66th Annual Meeting of the Midwest Political
Science
Association, Chicago, Illinois, April 3-6.
This
research examines the applicability of cognitive dissonance theory to
explain a
judge’s decision to author or join a separate opinion. I
propose that,
following a counter-attitudinal vote, a judge will endeavor to reduce
the
aversive consequences of being viewed as an inconsistent decision maker
by
justifying his or her attitudinally incongruent vote choice to the
public in a
separate opinion. I test this possibility by examining U.S. Supreme
Court
justices’ decisions to author or join concurring and
dissenting opinions during
the 1946-2001 terms. The empirical results provide qualified support
for the
use of separate opinions as dissonance reduction mechanisms, suggesting
that
dissonance theory is both applicable to the actions of elite decision
makers and
enjoys validity outside of a laboratory setting.
Counteractive Lobbying in the U.S.
Supreme Court. With
Lisa A. Solowiej. 2008. Paper Presented at the 79th Annual Meeting of
the
Southern Political Science Association, New Orleans, Louisiana, January
10-12.
Theories
of counteractive lobbying assert that interest groups lobby for the
purpose of
neutralizing the advocacy efforts of their opponents. We examine the
applicability of counteractive lobbying to explain interest group
amicus curiae
participation in the U.S. Supreme Court’s decisions on the
merits. Testing the
counteractive lobbying hypotheses from 1953-2001, we provide strong
support for
the contention that interest groups engage in counteractive lobbying in
the
nation’s highest court. Our findings indicate that, like the
elected branches
of government, the Supreme Court is properly viewed as a battleground
for
public policy in which organized interests clash in their attempts to
etch
their policy preferences into law.
Selecting Influence? The Solicitor
General and the Supreme
Court. With
Chris Nicholson. 2007. Paper Presented at the 65th Annual Meeting of
the
Midwest Political Science Association, Chicago, Illinois, April 12-15.
Scholars
have devoted a great deal of research to investigating the role and
influence
of the U.S. Solicitor General (SG) as amicus curiae in the Supreme
Court. Yet,
we know little about the SG’s decision to file an amicus
brief and how this
relates to the SG’s success on the merits. We fill this void
by examining
legal, political, and administrative factors that affect the
SG’s decision to
participate as amicus curiae. We subject our hypotheses to empirical
testing
utilizing data on the 1953-1999 Supreme Court terms by linking the
SG’s
decision to file an amicus brief to the SG’s ultimate success
on the merits, employing
a Heckman-style selection model. We find that the SG’s
decision to file an
amicus brief, and the SG’s success on the merits, is
influenced by legal,
political, and administrative considerations, suggesting that the SG is
best
viewed through the incorporation of a variety of theoretical
perspectives.
The Small Group Context: Designated
District Court Judges
in the United States Courts of Appeals.
With
Wendy L. Martinek. 2007. Paper Presented at the 78th Annual Meeting of
the
Southern Political Science Association, New Orleans, Louisiana, January
3-6.
Decision
making in the United States Courts of Appeals occurs
primarily in three-judge panels with rotating membership. A substantial
proportion of court of appeals cases is decided by panels that include
a judge
who is not a regular court of appeals jurist but is, instead, a
district court
judge serving temporarily on the court of appeals bench. Taken
together, these
two traits mean that court of appeals decision making is often a
function of
small groups with temporary members. In this paper, we set out to
examine
whether designated district court judges behave differently than their
court of
appeals colleagues with whom they render decisions. And, in doing so,
we
suggest a profitable direction for theory building vis-à-vis
judicial behavior.
Our analysis of data contained in the United States Courts of Appeals
Database
indicates that the votes of judges on three-judge panels are influenced
by the
preferences of their fellow panelists and that variance in the
ideological
direction of votes cast is not systematically related to status as a
designated
district court judge, with such judges manifesting greater variance in
their
ideological decision making.
Towards an Integrated Model of the
Supreme Court’s
Federalism Decision Making. 2006.
Paper Presented
at the 102nd Annual Meeting of the American Political Science
Association,
Philadelphia, Pennsylvania, August 31-September 3.
Disputes
involving the boundaries of state versus federal power make up a
substantial
portion of the Supreme Court’s docket and have undergone
extensive analysis.
Yet, the conventional wisdom regarding the justices’ choices
in these cases is
that they are highly inconsistent. I argue that this is primarily a
function of
the failure of scholars to develop a comprehensive model of the
justices’
federalism decision making. To remedy this, I introduce an integrated
model of
the individual justices’ choices in these cases, which is
then subjected to
empirical testing in the Rehnquist Court era (1986-2004). I explore a
host of
determinants of the justices’ decision making, including
attitudinal,
institutional, legal, and personal attributes, as well as the role of
organized
interests in the Court. The findings reveal that the choices justices
make in
these cases are not as discordant as most commentators suggest. Rather,
they
are relatively predictable through the application of an integrated
model of
judicial choice.
Interest Group Influence on the
Supreme Court: Theoretical
and Methodological Considerations.
2006.
Paper Presented at the 77th Annual Meeting of the Southern Political
Science
Association, Atlanta, Georgia, January 5-7.
Despite
that fact that amicus curiae participation is the most common method of
interest group activity in the judicial arena, there is little
consensus as to
whether this means of participation influences the decision making of
the U.S.
Supreme Court. To redress this state of affairs, this
research
investigates the affect of amicus briefs on the ideological direction
of the
Court’s decisions, with particular attention given to
theoretical and
methodological issues that have gone unexplored in previous
studies.
Analyzing group influence during the 1946-1995 terms, the results
provide
particularly robust evidence that pressure groups are effective in
shaping the Court’s
policy outputs. These findings therefore indicate that elite
decision
makers can be influenced by persuasive argumentation presented by
organized
interests.
The Consistency of Judicial Choice.
2005.
Paper Presented at the 101st Annual Meeting of the American Political
Science
Association, Washington, D.C., September 1-4.
Despite
the fact that judicial scholars have developed reasonably
well-specified models
of the voting behavior of U.S. Supreme Court justices, little attention
has
been paid to influences on the consistency of the choices justices
make.
Aside from the methodological problems associated with failure to
account for
heteroskedasticity with regard to the justices’ voting
behavior, I argue that
variance in judicial choice is also of theoretical import.
Simply put, by
uncovering influences on the stability of judicial choice, a more
complete
understanding of judicial decision making is provided. I
explore this
possibility by developing a theoretical framework that uncovers
influences on
the consistency of judicial choice which are then subjected to
empirical
validation. I show that the stability of judicial decision
making is
affected by attitudinal and strategic factors, as well as the
Court’s
informational environment.
Mobilizing Dissensus on the U.S.
Supreme Court.
2005.
Paper Presented at the 59th Annual Meeting of
the New York State Political Science Association, Niagara, New York,
April
15-16.
Prior
to the 1940s, U.S. Supreme Court justices rarely exhibited
nonconsensual
behavior. However, over the last 60 years, the number of
dissenting and
concurring opinions has risen dramatically. While a great
deal of
empirical research has focused on explaining this phenomenon, little
attention
has been paid to the role of organized interests in contributing to a
justice’s
decision to write separately. I argue that a
justice’s decision to write
or join a separate opinion is a partial function of interest group
amicus
curiae participation in the Court. By providing the justices
with a
myriad of information regarding how cases should be resolved, organized
interests create ambiguity with regard to the correct application of
the law in
a case, at the same time providing the justices with a substantial
foundation
for a concurring or dissenting opinion. I subject this
argument to
empirical validation by examining the justices’ decisions to
author or join
regular concurring, special concurring, and dissenting opinions during
the
1946-2000 terms. The results indicate that organized
interests play a
significant role in mobilizing dissensus on the Supreme Court.