As the chief litigator for the US government, the solicitor general plays a crucial role in the Supreme Court decision-making process. The justices and solicitor general share a mutually beneficial relationship that is reinforced by the solicitor general’s willingness to provide legal advice when asked. In this article, we examine whether and how this relationship changes when the solicitor general files a formal “confession of error.” Using data on confessions filed between the 1979 and 2014 terms, we find the justices are significantly less likely to support the solicitor general’s position at multiple stages of the Court’s decision-making process if the solicitor general confesses error in light of a policy change. This punishment is harshest when the solicitor general provides advice as an amicus curiae participant, but it is only temporary. These results provide new insight into the scope and limitations of benefits allotted to the Court’s “tenth justice.”
{"title":"Confessions at the Supreme Court","authors":"Jessica A. Schoenherr, Nicholas W. Waterbury","doi":"10.1086/714087","DOIUrl":"https://doi.org/10.1086/714087","url":null,"abstract":"As the chief litigator for the US government, the solicitor general plays a crucial role in the Supreme Court decision-making process. The justices and solicitor general share a mutually beneficial relationship that is reinforced by the solicitor general’s willingness to provide legal advice when asked. In this article, we examine whether and how this relationship changes when the solicitor general files a formal “confession of error.” Using data on confessions filed between the 1979 and 2014 terms, we find the justices are significantly less likely to support the solicitor general’s position at multiple stages of the Court’s decision-making process if the solicitor general confesses error in light of a policy change. This punishment is harshest when the solicitor general provides advice as an amicus curiae participant, but it is only temporary. These results provide new insight into the scope and limitations of benefits allotted to the Court’s “tenth justice.”","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2021-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/714087","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45180343","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Scholars recognize that judicial review depends upon judicial independence: an independent court is more likely to invalidate a statute it opposes than a nonindependent court. But scholars have lost that the previous statement is a conditional relationship, in which judicial independence moderates the relationship between a court’s ideological preferences and its decision to strike statutes. I model this conditional relationship using the US Supreme Court’s constitutional decisions on important federal statutes. The analysis reveals that judicial independence is best modeled as a conditional predictor of judicial review and that modeling judicial independence as an additive predictor risks false negative results.
{"title":"The Conditioning Role of Judicial Independence in the Exercise of Judicial Review","authors":"Garrett N. Vande Kamp","doi":"10.1086/713407","DOIUrl":"https://doi.org/10.1086/713407","url":null,"abstract":"Scholars recognize that judicial review depends upon judicial independence: an independent court is more likely to invalidate a statute it opposes than a nonindependent court. But scholars have lost that the previous statement is a conditional relationship, in which judicial independence moderates the relationship between a court’s ideological preferences and its decision to strike statutes. I model this conditional relationship using the US Supreme Court’s constitutional decisions on important federal statutes. The analysis reveals that judicial independence is best modeled as a conditional predictor of judicial review and that modeling judicial independence as an additive predictor risks false negative results.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2021-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/713407","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43226296","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
House deliberations over healthcare legislation in 1798 show members of the Fifth US Congress debating the constitutional basis of small government assumptions about states’ rights and federal power, asking why the regime’s principles should not be understood as requiring direct federal intervention in the lives of socially and economically vulnerable groups irrespective of states’ authority. Extending the current scholarly debate over nationalization and state building in early American thought, I suggest that questions alleged by many scholars to have been excluded from political and constitutional debate in the early republic were, in cases like this, robustly contested.
{"title":"Support for Nationalization and State Building in the Early American Republic","authors":"Charles U. Zug","doi":"10.1086/713452","DOIUrl":"https://doi.org/10.1086/713452","url":null,"abstract":"House deliberations over healthcare legislation in 1798 show members of the Fifth US Congress debating the constitutional basis of small government assumptions about states’ rights and federal power, asking why the regime’s principles should not be understood as requiring direct federal intervention in the lives of socially and economically vulnerable groups irrespective of states’ authority. Extending the current scholarly debate over nationalization and state building in early American thought, I suggest that questions alleged by many scholars to have been excluded from political and constitutional debate in the early republic were, in cases like this, robustly contested.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2021-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/713452","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43174236","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper develops and tests a theory that in states with judicial elections, criminal justice outcomes will be more punitive than in states without elections. Leveraging a data set previously unused in the judicial politics literature, I estimate time-series regressions of state sentencing and incarceration rates over a 38-year period while distinguishing between types of judicial elections to establish support for the theory. I find that states where trial judges are reelected are generally more punitive than states without judicial elections, and this punitiveness is in response to the public’s ideological preferences, indicating that elections serve as an important judicial accountability mechanism for citizens.
{"title":"Judicial Selection and Criminal Punishment","authors":"T. Taylor","doi":"10.1086/713470","DOIUrl":"https://doi.org/10.1086/713470","url":null,"abstract":"This paper develops and tests a theory that in states with judicial elections, criminal justice outcomes will be more punitive than in states without elections. Leveraging a data set previously unused in the judicial politics literature, I estimate time-series regressions of state sentencing and incarceration rates over a 38-year period while distinguishing between types of judicial elections to establish support for the theory. I find that states where trial judges are reelected are generally more punitive than states without judicial elections, and this punitiveness is in response to the public’s ideological preferences, indicating that elections serve as an important judicial accountability mechanism for citizens.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2021-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/713470","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47128029","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Supreme Court influence depends greatly on the responses of lower court judges to its precedent. Justices employ numerous strategies to obtain lower court deference to their decisions, including the provocative practice of relying upon foreign law. Referred to as “constitutional cross-fertilization” when used in constitutional interpretation, this practice is labeled by critics as a threat to American democracy. Research suggests that the Court uses such references strategically to prop up controversial and ideologically charged decisions, and that they obtain a benefit in the form of increased citations. These studies do not tell us if the Court gains lower court deference. I contend that, in constitutional cases, lower court judges will not find reliance upon such sources persuasive; rather, they will regard these references with disdain. My findings support my argument. Contrary to the justices’ intentions, reliance upon foreign law in constitutional cases is associated with an increased probability of negative, as opposed to positive, treatment. Justices incur significant costs from participating in the global rights dialogue.
{"title":"The Costs of Going Global","authors":"Maureen Stobb","doi":"10.1086/713402","DOIUrl":"https://doi.org/10.1086/713402","url":null,"abstract":"Supreme Court influence depends greatly on the responses of lower court judges to its precedent. Justices employ numerous strategies to obtain lower court deference to their decisions, including the provocative practice of relying upon foreign law. Referred to as “constitutional cross-fertilization” when used in constitutional interpretation, this practice is labeled by critics as a threat to American democracy. Research suggests that the Court uses such references strategically to prop up controversial and ideologically charged decisions, and that they obtain a benefit in the form of increased citations. These studies do not tell us if the Court gains lower court deference. I contend that, in constitutional cases, lower court judges will not find reliance upon such sources persuasive; rather, they will regard these references with disdain. My findings support my argument. Contrary to the justices’ intentions, reliance upon foreign law in constitutional cases is associated with an increased probability of negative, as opposed to positive, treatment. Justices incur significant costs from participating in the global rights dialogue.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2021-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/713402","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43385870","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
To what degree is judicial agenda setting top-down or bottom-up? Existing studies lack evidence of the frequency or magnitude of these two processes. We conceptualize the judicial agenda as the legal questions/rules receiving judicial attention, measure it using citations to Supreme Court opinions, and estimate vector autoregression models to identify how each level of court initiates or responds to variation in attention to precedent at other levels of the judiciary. The Supreme Court exerts some top-down control, but agenda setting is more often bottom-up, revealing lower courts are more integral to setting the federal judicial agenda than previously understood.
{"title":"Agenda Setting and Attention to Precedent in the US Federal Courts","authors":"JBrandon Duck-Mayr, Thomas G. Hansford, J. F. Ii","doi":"10.1086/713404","DOIUrl":"https://doi.org/10.1086/713404","url":null,"abstract":"To what degree is judicial agenda setting top-down or bottom-up? Existing studies lack evidence of the frequency or magnitude of these two processes. We conceptualize the judicial agenda as the legal questions/rules receiving judicial attention, measure it using citations to Supreme Court opinions, and estimate vector autoregression models to identify how each level of court initiates or responds to variation in attention to precedent at other levels of the judiciary. The Supreme Court exerts some top-down control, but agenda setting is more often bottom-up, revealing lower courts are more integral to setting the federal judicial agenda than previously understood.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2021-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/713404","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45382643","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Matthew E. K. Hall, Gary E. Hollibaugh, Jonathan Klingler, Adam J. Ramey
Models of behavior on the US Supreme Court almost universally assume that justices’ behavior depends, at least in part, on the characteristics of individual justices. However, few prior studies have attempted to assess these characteristics beyond ideological preferences. In contrast, we apply recent advances in machine learning to develop and validate measures of the Big Five personality traits for Supreme Court justices serving during the 1946 through 2015 terms based on the language in their written opinions. We then conduct an empirical application to demonstrate the importance of these Supreme Court Individual Personality Estimates and discuss their proper use.
{"title":"Attributes beyond Attitudes","authors":"Matthew E. K. Hall, Gary E. Hollibaugh, Jonathan Klingler, Adam J. Ramey","doi":"10.1086/713405","DOIUrl":"https://doi.org/10.1086/713405","url":null,"abstract":"Models of behavior on the US Supreme Court almost universally assume that justices’ behavior depends, at least in part, on the characteristics of individual justices. However, few prior studies have attempted to assess these characteristics beyond ideological preferences. In contrast, we apply recent advances in machine learning to develop and validate measures of the Big Five personality traits for Supreme Court justices serving during the 1946 through 2015 terms based on the language in their written opinions. We then conduct an empirical application to demonstrate the importance of these Supreme Court Individual Personality Estimates and discuss their proper use.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2021-01-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/713405","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42888966","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
After democratic transitions, many Eastern European countries reformed their political institutions in a piecemeal fashion. Focusing on the Bulgarian Constitutional Court from 1992 to 2012 and the Soviet-style procurator general, we analyze how legal reforms operate in practice in transitional societies. Using original data, we find that judges are influenced by the powerful and unaccountable procurator general. Judges’ decisions to strike down laws also are guided by alignment with their or their appointers’ political preferences and the opinions of interested parties in amicus briefs. The study has implications about interbranch relations and the role of procurator generals in constitutional review.
{"title":"The Influence of Procurator Generals in Constitutional Review","authors":"Tanya Bagashka, L. Tiede","doi":"10.1086/712651","DOIUrl":"https://doi.org/10.1086/712651","url":null,"abstract":"After democratic transitions, many Eastern European countries reformed their political institutions in a piecemeal fashion. Focusing on the Bulgarian Constitutional Court from 1992 to 2012 and the Soviet-style procurator general, we analyze how legal reforms operate in practice in transitional societies. Using original data, we find that judges are influenced by the powerful and unaccountable procurator general. Judges’ decisions to strike down laws also are guided by alignment with their or their appointers’ political preferences and the opinions of interested parties in amicus briefs. The study has implications about interbranch relations and the role of procurator generals in constitutional review.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/712651","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45748296","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There is convincing evidence that Americans have high, stable levels of knowledge about the Supreme Court. Yet, this conclusion masks variance in political knowledge associated with ethnicity. Using data from surveys of Latinos and non-Latinos fielded before and after the Supreme Court’s rulings in Arizona v. United States and National Federation of Independent Business v. Sebelius, we find Latinos know less about the Court than other Americans. However, Latinos’ knowledge of the Court increased significantly between the surveys, while others’ Supreme Court knowledge did not. We discuss the implications of this result for the Supreme Court’s legitimacy and civic education policy.
{"title":"Latinos’ Knowledge of the Supreme Court","authors":"Francisco I. Pedraza, J. Ura","doi":"10.1086/712648","DOIUrl":"https://doi.org/10.1086/712648","url":null,"abstract":"There is convincing evidence that Americans have high, stable levels of knowledge about the Supreme Court. Yet, this conclusion masks variance in political knowledge associated with ethnicity. Using data from surveys of Latinos and non-Latinos fielded before and after the Supreme Court’s rulings in Arizona v. United States and National Federation of Independent Business v. Sebelius, we find Latinos know less about the Court than other Americans. However, Latinos’ knowledge of the Court increased significantly between the surveys, while others’ Supreme Court knowledge did not. We discuss the implications of this result for the Supreme Court’s legitimacy and civic education policy.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/712648","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49441259","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
We examine whether the public evaluates Supreme Court nominees on the basis of judicial philosophies when presented with a description of those philosophies. Employing a conjoint experiment, we find that the public will evaluate nominees’ judicial philosophies as well as the nominees’ partisanship, ideology, and qualifications. We also discover significant differences between Republicans and Democrats. These results have important implications for the future of judicial nominations, framing, and public support for the judiciary.
{"title":"Public Support for Judicial Philosophies","authors":"Christopher N. Krewson, Ryan J. Owens","doi":"10.1086/712649","DOIUrl":"https://doi.org/10.1086/712649","url":null,"abstract":"We examine whether the public evaluates Supreme Court nominees on the basis of judicial philosophies when presented with a description of those philosophies. Employing a conjoint experiment, we find that the public will evaluate nominees’ judicial philosophies as well as the nominees’ partisanship, ideology, and qualifications. We also discover significant differences between Republicans and Democrats. These results have important implications for the future of judicial nominations, framing, and public support for the judiciary.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/712649","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43267062","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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