While panel effects—instances in which panel composition affects the votes cast by judges—have been widely documented, scholars are unsure why these patterns persist. We outline three possible mechanisms, acquiescence, deliberation, and strategy, through which panel effects might occur; develop indicators for each; and test them using a data set of search and seizure cases decided by the US courts of appeals between 1953 and 2010. Our analysis provides some evidence that counterjudge success stems from a combination of all three theories, although strategic considerations have the substantively strongest and most consistent effects.
{"title":"Deferring, Deliberating, or Dodging Review","authors":"R. Hinkle, M. J. Nelson, Morgan L. W. Hazelton","doi":"10.1086/709911","DOIUrl":"https://doi.org/10.1086/709911","url":null,"abstract":"While panel effects—instances in which panel composition affects the votes cast by judges—have been widely documented, scholars are unsure why these patterns persist. We outline three possible mechanisms, acquiescence, deliberation, and strategy, through which panel effects might occur; develop indicators for each; and test them using a data set of search and seizure cases decided by the US courts of appeals between 1953 and 2010. Our analysis provides some evidence that counterjudge success stems from a combination of all three theories, although strategic considerations have the substantively strongest and most consistent effects.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":"8 1","pages":"277 - 300"},"PeriodicalIF":1.4,"publicationDate":"2020-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/709911","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44223819","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}
Jessica A. Schoenherr, Elizabeth A. Lane, Miles T. Armaly
US Supreme Court confirmation hearings provide senators with an opportunity to engage a potential justice on a nationwide stage. Senators probe for information about future behavior on the bench. Nominees work through the questions, oscillating between forthcoming and vague responses. Such behavior encourages popular narratives that characterize this intricate dance as a “vapid and hollow charade.” We challenge this wisdom and argue that senators use these hearings to provide meaningful representation to their constituents while simultaneously supporting copartisan efforts regarding the nominee. We examine the exchanges in 185 senator-nominee pairings that span nearly 30 years of confirmation hearings. Our results show that senators from both parties increase their question-asking activity during divided government, when confirmation success is more dubious. Senators from the president’s party ask fewer questions when their constituents support the nominee, however, suggesting that popular support can attenuate this general effect for senators expecting a successful confirmation.
{"title":"The Purpose of Senatorial Grandstanding during Supreme Court Confirmation Hearings","authors":"Jessica A. Schoenherr, Elizabeth A. Lane, Miles T. Armaly","doi":"10.1086/709913","DOIUrl":"https://doi.org/10.1086/709913","url":null,"abstract":"US Supreme Court confirmation hearings provide senators with an opportunity to engage a potential justice on a nationwide stage. Senators probe for information about future behavior on the bench. Nominees work through the questions, oscillating between forthcoming and vague responses. Such behavior encourages popular narratives that characterize this intricate dance as a “vapid and hollow charade.” We challenge this wisdom and argue that senators use these hearings to provide meaningful representation to their constituents while simultaneously supporting copartisan efforts regarding the nominee. We examine the exchanges in 185 senator-nominee pairings that span nearly 30 years of confirmation hearings. Our results show that senators from both parties increase their question-asking activity during divided government, when confirmation success is more dubious. Senators from the president’s party ask fewer questions when their constituents support the nominee, however, suggesting that popular support can attenuate this general effect for senators expecting a successful confirmation.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":"8 1","pages":"333 - 358"},"PeriodicalIF":1.4,"publicationDate":"2020-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/709913","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49218418","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}
Dissenting opinions are part of the ongoing constitutional dialogue among elites both inside and out of the judiciary. In order to illustrate how dissents contribute to the ongoing constitutional dialogue among elites, we examine the effect of dissents on majority opinions in the US Supreme Court. We empirically assess their operation on the contemporary Court. We find that dissents with certain characteristics are more effective than others on prompting the majority opinion to cite and discuss them. Specifically, majority opinions cite and discuss dissents that have a negative emotional tone; contain formal, logical, and hierarchical thinking; use adverbs; have a mixed ideological coalition; and cite a high number of Supreme Court precedents. These results suggest that strategic dissenters will have more in-house impact than others.
{"title":"Intracourt Dialogue","authors":"Pamela C. Corley, Artemus Ward","doi":"10.1086/704739","DOIUrl":"https://doi.org/10.1086/704739","url":null,"abstract":"Dissenting opinions are part of the ongoing constitutional dialogue among elites both inside and out of the judiciary. In order to illustrate how dissents contribute to the ongoing constitutional dialogue among elites, we examine the effect of dissents on majority opinions in the US Supreme Court. We empirically assess their operation on the contemporary Court. We find that dissents with certain characteristics are more effective than others on prompting the majority opinion to cite and discuss them. Specifically, majority opinions cite and discuss dissents that have a negative emotional tone; contain formal, logical, and hierarchical thinking; use adverbs; have a mixed ideological coalition; and cite a high number of Supreme Court precedents. These results suggest that strategic dissenters will have more in-house impact than others.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":"8 1","pages":"27 - 50"},"PeriodicalIF":1.4,"publicationDate":"2020-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/704739","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45540418","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}
What strategies do judges employ when they anticipate review? Constrained judges behave strategically by using particular instruments—like language complexity—when authoring opinions. Prior studies suggest that judges use complexity in anticipation of legislative hostility. Similarly, the threat of review and reversal may spur opinion complexity. This study examines variations in circuit court opinions resulting from precedent treatment and Supreme Court preferences. When a circuit negatively treats a Supreme Court precedent that the justices prefer or a circuit positively treats a precedent that the justices dislike, opinion complexity should increase. These hypotheses find support, suggesting that circuits strategically insulate using opinion complexity.
{"title":"Strategic Opinion Language on the US Courts of Appeals","authors":"Joshua Boston","doi":"10.1086/704633","DOIUrl":"https://doi.org/10.1086/704633","url":null,"abstract":"What strategies do judges employ when they anticipate review? Constrained judges behave strategically by using particular instruments—like language complexity—when authoring opinions. Prior studies suggest that judges use complexity in anticipation of legislative hostility. Similarly, the threat of review and reversal may spur opinion complexity. This study examines variations in circuit court opinions resulting from precedent treatment and Supreme Court preferences. When a circuit negatively treats a Supreme Court precedent that the justices prefer or a circuit positively treats a precedent that the justices dislike, opinion complexity should increase. These hypotheses find support, suggesting that circuits strategically insulate using opinion complexity.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":"8 1","pages":"1 - 26"},"PeriodicalIF":1.4,"publicationDate":"2020-01-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/704633","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45186536","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}
I gather new data on local media coverage of state supreme court elections and examine its effects on voter participation. I find that, even when controlling for campaign expense and advertising, media coverage can increase voter engagement in state supreme court contests. While some of this effect is attributable to salient campaigns themselves, content and statistical analyses show that the media provide voters with unique information such as candidate qualifications that can also stimulate their participation.
{"title":"Does Local Journalism Stimulate Voter Participation in State Supreme Court Elections?","authors":"David A. Hughes","doi":"10.1086/704742","DOIUrl":"https://doi.org/10.1086/704742","url":null,"abstract":"I gather new data on local media coverage of state supreme court elections and examine its effects on voter participation. I find that, even when controlling for campaign expense and advertising, media coverage can increase voter engagement in state supreme court contests. While some of this effect is attributable to salient campaigns themselves, content and statistical analyses show that the media provide voters with unique information such as candidate qualifications that can also stimulate their participation.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":"8 1","pages":"95 - 126"},"PeriodicalIF":1.4,"publicationDate":"2020-01-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/704742","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43104664","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}
The Inter-American Human Rights System takes into account domestic political contexts in ways that sometimes have not been fully recognized. International human rights courts face a tension between the goal of expanding rights and the need to gain legitimacy with domestic constituencies. Cases involving national amnesty laws have posed this dilemma in acute fashion in the Inter-American System. An analysis of those cases and their domestic political contexts shows how the Commission and the Court have taken into account domestic circumstances, the first through the timing of referrals and the second through the Court’s jurisprudence.
{"title":"Law and Politics in the Inter-American System","authors":"Wayne Sandholtz, M. R. Padilla","doi":"10.1086/704632","DOIUrl":"https://doi.org/10.1086/704632","url":null,"abstract":"The Inter-American Human Rights System takes into account domestic political contexts in ways that sometimes have not been fully recognized. International human rights courts face a tension between the goal of expanding rights and the need to gain legitimacy with domestic constituencies. Cases involving national amnesty laws have posed this dilemma in acute fashion in the Inter-American System. An analysis of those cases and their domestic political contexts shows how the Commission and the Court have taken into account domestic circumstances, the first through the timing of referrals and the second through the Court’s jurisprudence.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":"8 1","pages":"000 - 000"},"PeriodicalIF":1.4,"publicationDate":"2020-01-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/704632","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42885528","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}
Sara C. Benesh, David A. Armstrong, Zachary Wallander
Because decision making is complicated, political elites seek advice when making decisions, and the ways in which they use that advice has systematic features. But, analyses of decision making among elites usually fail to account for advice. We take advantage of unique information about the advice provided to one set of elites to empirically uncover the effect of advice. Specifically, we examine law clerk recommendations on cert to Justice Blackmun. We find that, even after controlling for known determinants of cert and considering sequential decision making, the advice of a trusted advisor matters greatly.
{"title":"Advisors to Elites","authors":"Sara C. Benesh, David A. Armstrong, Zachary Wallander","doi":"10.1086/704740","DOIUrl":"https://doi.org/10.1086/704740","url":null,"abstract":"Because decision making is complicated, political elites seek advice when making decisions, and the ways in which they use that advice has systematic features. But, analyses of decision making among elites usually fail to account for advice. We take advantage of unique information about the advice provided to one set of elites to empirically uncover the effect of advice. Specifically, we examine law clerk recommendations on cert to Justice Blackmun. We find that, even after controlling for known determinants of cert and considering sequential decision making, the advice of a trusted advisor matters greatly.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":"8 1","pages":"51 - 73"},"PeriodicalIF":1.4,"publicationDate":"2020-01-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/704740","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46919461","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}
Judicial ethics and conduct guides emphasize dignity, decorum, patience, and courtesy, contributing to an understanding of judging as rational, detached, and unemotional. However, these are also interactional capacities, implying the presence of emotion and emotion work. Empirical research finds that judicial officers express considerable awareness of the need for judicial emotional capacities and emotion work and undertake a range of strategies to manage emotion. This judicial experience shows that available guidance does not adequately address emotion in judicial officers’ everyday work. Improved guidance will explicitly recognize judicial work as an interactional space, generating emotion and demanding emotion work.
{"title":"Judicial Ethics, Everyday Work, and Emotion Management","authors":"S. Anleu, K. Mack, Jennifer K. Elek, D. Rottman","doi":"10.1086/703700","DOIUrl":"https://doi.org/10.1086/703700","url":null,"abstract":"Judicial ethics and conduct guides emphasize dignity, decorum, patience, and courtesy, contributing to an understanding of judging as rational, detached, and unemotional. However, these are also interactional capacities, implying the presence of emotion and emotion work. Empirical research finds that judicial officers express considerable awareness of the need for judicial emotional capacities and emotion work and undertake a range of strategies to manage emotion. This judicial experience shows that available guidance does not adequately address emotion in judicial officers’ everyday work. Improved guidance will explicitly recognize judicial work as an interactional space, generating emotion and demanding emotion work.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":"8 1","pages":"127 - 150"},"PeriodicalIF":1.4,"publicationDate":"2020-01-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/703700","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41506410","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}
Conventional wisdom suggests that judicial legitimacy should be relatively unaffected by satisfaction with the ideological direction of judicial policy making. Recent studies challenge this assertion. The key to resolving this conundrum is estimating individual-level satisfaction with the ideological direction of judicial policy making reliably and validly. We examine the accuracy of several common measures of the concept. We find that 40% of the respondents repudiate their own scores on these measures. With this much systematic measurement error in such an important independent variable, the question of whether the Supreme Court’s institutional legitimacy is conditional on ideological agreement with its decisions must be reexamined.
{"title":"Measuring Subjective Ideological Disagreement with the US Supreme Court","authors":"M. J. Nelson, J. Gibson","doi":"10.1086/704741","DOIUrl":"https://doi.org/10.1086/704741","url":null,"abstract":"Conventional wisdom suggests that judicial legitimacy should be relatively unaffected by satisfaction with the ideological direction of judicial policy making. Recent studies challenge this assertion. The key to resolving this conundrum is estimating individual-level satisfaction with the ideological direction of judicial policy making reliably and validly. We examine the accuracy of several common measures of the concept. We find that 40% of the respondents repudiate their own scores on these measures. With this much systematic measurement error in such an important independent variable, the question of whether the Supreme Court’s institutional legitimacy is conditional on ideological agreement with its decisions must be reexamined.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":"8 1","pages":"75 - 94"},"PeriodicalIF":1.4,"publicationDate":"2020-01-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/704741","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48465537","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}
Ali S. Masood, Benjamin J. Kassow, Donald R. Songer
We argue that given finite resources to review the large number of lower court decisions, Supreme Court justices should primarily be interested in aggregate responses to their precedents. We offer a theory in which the US Supreme Court drives aggregate responses to its decisions by signaling the utility of its precedents to judges on the lower courts. Specifically, we argue that lower court judges have a greater propensity to rely on a Supreme Court decision when the justices explicitly direct a lower court to consider a formally argued decision in its summary decisions. Our results demonstrate that such signals significantly increase the frequency with which the lower courts adopt the precedents of the US Supreme Court. We corroborate the causality of these links through qualitative analyses, distance matching methods, and simultaneous sensitivity analysis. Our study offers new and important insights on judicial impact and decision-making behavior in the American courts.
{"title":"The Aggregate Dynamics of Lower Court Responses to the US Supreme Court","authors":"Ali S. Masood, Benjamin J. Kassow, Donald R. Songer","doi":"10.1086/703067","DOIUrl":"https://doi.org/10.1086/703067","url":null,"abstract":"We argue that given finite resources to review the large number of lower court decisions, Supreme Court justices should primarily be interested in aggregate responses to their precedents. We offer a theory in which the US Supreme Court drives aggregate responses to its decisions by signaling the utility of its precedents to judges on the lower courts. Specifically, we argue that lower court judges have a greater propensity to rely on a Supreme Court decision when the justices explicitly direct a lower court to consider a formally argued decision in its summary decisions. Our results demonstrate that such signals significantly increase the frequency with which the lower courts adopt the precedents of the US Supreme Court. We corroborate the causality of these links through qualitative analyses, distance matching methods, and simultaneous sensitivity analysis. Our study offers new and important insights on judicial impact and decision-making behavior in the American courts.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":"7 1","pages":"159 - 186"},"PeriodicalIF":1.4,"publicationDate":"2019-08-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/703067","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45995857","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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