Pub Date : 2022-10-02DOI: 10.1080/0098261X.2022.2124897
J. M. King, Peter McAndrews, Ian Ostrander
Abstract President Trump brought judicial appointments to the pinnacle of political salience while campaigning and in office. He was also the first president to inherit Senate rules making it easier to confirm judicial appointments while past partisan obstruction provided his administration with a backlog of vacancies. How then, did President Trump’s ability to gain Senate confirmation for judicial nominees compare to recent presidents? We find that he was indeed able to fill an historic number of vacancies. However, the administration was not universally successful as key nominations had to be prioritized at the expense of others. Our findings assess Trump’s legacy on judicial appointments and demonstrate the practical tradeoffs newly emerging in appointment politics.
{"title":"President Trump and the Politics of Judicial Nominations","authors":"J. M. King, Peter McAndrews, Ian Ostrander","doi":"10.1080/0098261X.2022.2124897","DOIUrl":"https://doi.org/10.1080/0098261X.2022.2124897","url":null,"abstract":"Abstract President Trump brought judicial appointments to the pinnacle of political salience while campaigning and in office. He was also the first president to inherit Senate rules making it easier to confirm judicial appointments while past partisan obstruction provided his administration with a backlog of vacancies. How then, did President Trump’s ability to gain Senate confirmation for judicial nominees compare to recent presidents? We find that he was indeed able to fill an historic number of vacancies. However, the administration was not universally successful as key nominations had to be prioritized at the expense of others. Our findings assess Trump’s legacy on judicial appointments and demonstrate the practical tradeoffs newly emerging in appointment politics.","PeriodicalId":45509,"journal":{"name":"Justice System Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2022-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89647925","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-02DOI: 10.1080/0098261X.2022.2143303
Scott S. Boddery, Aaron M. Houck, Andrew J. O’Geen
Abstract We collected data on individuals’ support for politically motivated “hardball” tactics for U.S. Supreme Court confirmations from three distinct time periods: in the days leading up to the initial confirmation proceedings for Brett Kavanaugh’s elevation to the U.S. Supreme Court, immediately following the second round of hearings held to address the sexual assault allegations brought by Christine Blasey Ford against Kavanaugh, and following the confirmation hearing for Amy Coney Barrett. We investigated whether these high-profile proceedings, following protracted Senate wrangling, affected whether priming respondents to think about past norm violations and partisan gamesmanship affected their support for the use of various confirmation tactics and their assessment of the Supreme Court’s institutional legitimacy. Our results show that the Court is not necessarily in control of public perceptions of the institution. Specifically, drawn-out Senate gamesmanship is impacting the Supreme Court’s institutional standing and individuals tend to dislike norm violations within the confirmation process. However, such concerns can be overwhelmed by ideological or partisan interests in an environment of greater partisan tension and outright conflict. Taken together, our findings suggest that the traditionally static nature of the Court’s base of diffuse support may be on tenuous ground due to its continued politicization at the hands of outside actors.
{"title":"Emerging Hardball Confirmation Tactics and Public Support for the U.S. Supreme Court","authors":"Scott S. Boddery, Aaron M. Houck, Andrew J. O’Geen","doi":"10.1080/0098261X.2022.2143303","DOIUrl":"https://doi.org/10.1080/0098261X.2022.2143303","url":null,"abstract":"Abstract We collected data on individuals’ support for politically motivated “hardball” tactics for U.S. Supreme Court confirmations from three distinct time periods: in the days leading up to the initial confirmation proceedings for Brett Kavanaugh’s elevation to the U.S. Supreme Court, immediately following the second round of hearings held to address the sexual assault allegations brought by Christine Blasey Ford against Kavanaugh, and following the confirmation hearing for Amy Coney Barrett. We investigated whether these high-profile proceedings, following protracted Senate wrangling, affected whether priming respondents to think about past norm violations and partisan gamesmanship affected their support for the use of various confirmation tactics and their assessment of the Supreme Court’s institutional legitimacy. Our results show that the Court is not necessarily in control of public perceptions of the institution. Specifically, drawn-out Senate gamesmanship is impacting the Supreme Court’s institutional standing and individuals tend to dislike norm violations within the confirmation process. However, such concerns can be overwhelmed by ideological or partisan interests in an environment of greater partisan tension and outright conflict. Taken together, our findings suggest that the traditionally static nature of the Court’s base of diffuse support may be on tenuous ground due to its continued politicization at the hands of outside actors.","PeriodicalId":45509,"journal":{"name":"Justice System Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2022-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79324977","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-02DOI: 10.1080/0098261X.2022.2143304
A. Badas, B. Justus, Siyu Li
Abstract The Supreme Court’s increased use of the “shadow docket” and the salience of the issues handled on the shadow docket have raised normative concerns over its use. Critics argue that the Supreme Court should not make law without following established procedures of a full briefing, oral arguments, and deliberation. Those seeking to defend the Court point out that decisions made on the shadow docket do not create binding precedent and only resolve the issue before the Court. We examine whether shadow docket decisions are used as precedent by lower courts. We come to two general conclusions. First, shadow docket cases are invoked as precedent much less frequently than merits docket cases. Second, shadow docket cases receive more engagement from the lower courts when the Supreme Court provides a justification for its shadow docket decision and when the Supreme Court grants relief and thereby changes the status quo. Our results help evaluate and provide responses to the normative criticisms of the Court’s reliance on the shadow docket to create law.
{"title":"Assessing the Influence of Supreme Court’s Shadow Docket in the Judicial Hierarchy","authors":"A. Badas, B. Justus, Siyu Li","doi":"10.1080/0098261X.2022.2143304","DOIUrl":"https://doi.org/10.1080/0098261X.2022.2143304","url":null,"abstract":"Abstract The Supreme Court’s increased use of the “shadow docket” and the salience of the issues handled on the shadow docket have raised normative concerns over its use. Critics argue that the Supreme Court should not make law without following established procedures of a full briefing, oral arguments, and deliberation. Those seeking to defend the Court point out that decisions made on the shadow docket do not create binding precedent and only resolve the issue before the Court. We examine whether shadow docket decisions are used as precedent by lower courts. We come to two general conclusions. First, shadow docket cases are invoked as precedent much less frequently than merits docket cases. Second, shadow docket cases receive more engagement from the lower courts when the Supreme Court provides a justification for its shadow docket decision and when the Supreme Court grants relief and thereby changes the status quo. Our results help evaluate and provide responses to the normative criticisms of the Court’s reliance on the shadow docket to create law.","PeriodicalId":45509,"journal":{"name":"Justice System Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2022-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84591927","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-02DOI: 10.1080/0098261X.2022.2149369
Liana Pennington, Matthew J. Dolliver
Abstract Jury trials are considered a key element of the American criminal justice system, even as many question the continued legitimacy of the jury system and its ability to be fair. Using data from actual jurors collected at both the beginning of jury service and after deliberations, this research examines whether jurors’ views of the fairness of the jury system affect perceptions of evidence presented to them at trial. By surveying jurors at the beginning of jury service, this research uses measurements of jurors’ views which are not affected by the court process itself. We find that jurors who enter jury service with a stronger belief in the fairness of juries are more likely to favor the defense after hearing the evidence. Policy implications are discussed, including using caution with harsher methods to improve juror rate of appearance because of the potential effects on jurors’ views.
{"title":"The Effects of Jurors’ Initial Views of Jury Service on Predeliberation Preferences for Prosecution or Defense","authors":"Liana Pennington, Matthew J. Dolliver","doi":"10.1080/0098261X.2022.2149369","DOIUrl":"https://doi.org/10.1080/0098261X.2022.2149369","url":null,"abstract":"Abstract Jury trials are considered a key element of the American criminal justice system, even as many question the continued legitimacy of the jury system and its ability to be fair. Using data from actual jurors collected at both the beginning of jury service and after deliberations, this research examines whether jurors’ views of the fairness of the jury system affect perceptions of evidence presented to them at trial. By surveying jurors at the beginning of jury service, this research uses measurements of jurors’ views which are not affected by the court process itself. We find that jurors who enter jury service with a stronger belief in the fairness of juries are more likely to favor the defense after hearing the evidence. Policy implications are discussed, including using caution with harsher methods to improve juror rate of appearance because of the potential effects on jurors’ views.","PeriodicalId":45509,"journal":{"name":"Justice System Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2022-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78333910","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-02DOI: 10.1080/0098261X.2022.2151388
Holly J. McCammon
Abstract Movement lawyering often results in litigation battles. Litigant lawyers in Supreme Court abortion cases, who are typically affiliated with, if not members of the reproductive-rights and antiabortion movements, for many years have engaged in a war of words as they dispute abortion laws and what constitutes an undue burden on abortion access. I use and build on social movement framing theory to examine the legal-framing contest unfolding across the undue-burden abortion cases, toward discerning the anatomy and causal sequence of this discursive legal battle. Using both qualitative and quantitative-computerized text analysis, I show that a broad discursive-opportunity structure shapes the legal-framing contest, and the contest itself is structured by framing innovations and persistence and by dialogic and monologic framing. This theoretical framework can aid our understanding of the sometimes fierce discursive battles in movement litigation, shedding light on how social movements influence legal policy development.
{"title":"A War of Words Over Abortion: The Legal-Framing Contest Over the Undue Burden Standard","authors":"Holly J. McCammon","doi":"10.1080/0098261X.2022.2151388","DOIUrl":"https://doi.org/10.1080/0098261X.2022.2151388","url":null,"abstract":"Abstract Movement lawyering often results in litigation battles. Litigant lawyers in Supreme Court abortion cases, who are typically affiliated with, if not members of the reproductive-rights and antiabortion movements, for many years have engaged in a war of words as they dispute abortion laws and what constitutes an undue burden on abortion access. I use and build on social movement framing theory to examine the legal-framing contest unfolding across the undue-burden abortion cases, toward discerning the anatomy and causal sequence of this discursive legal battle. Using both qualitative and quantitative-computerized text analysis, I show that a broad discursive-opportunity structure shapes the legal-framing contest, and the contest itself is structured by framing innovations and persistence and by dialogic and monologic framing. This theoretical framework can aid our understanding of the sometimes fierce discursive battles in movement litigation, shedding light on how social movements influence legal policy development.","PeriodicalId":45509,"journal":{"name":"Justice System Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2022-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"80407840","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-02DOI: 10.1080/0098261X.2022.2131485
Meghan E. Leonard
Abstract State legislatures introduce court-curbing legislation as they threaten to restrict the independence of state high courts. While scholars have examined when this legislation is introduced and what drives the introduction, we know little about how state supreme courts react to this legislation. In this paper, I begin the examination into how state courts react to court-curbing legislation by looking to the court’s exercise of its judicial review power. I theorize that state supreme courts are less likely to invoke their power of judicial review when facing increased court-curbing legislation because judicial review is the most direct form of communication between the branches. I also argue communication is necessarily conditioned by the methods of selection and retention in the states. Examining narrow and broad court curbing, I find that neither type of introduction affects the use of judicial review by the state supreme courts and that, in line with previous scholarship, courts are using legislative ideology as an informational signal in this interbranch interaction.
{"title":"State Supreme Court Responsiveness to Court Curbing: Examining the Use of Judicial Review","authors":"Meghan E. Leonard","doi":"10.1080/0098261X.2022.2131485","DOIUrl":"https://doi.org/10.1080/0098261X.2022.2131485","url":null,"abstract":"Abstract State legislatures introduce court-curbing legislation as they threaten to restrict the independence of state high courts. While scholars have examined when this legislation is introduced and what drives the introduction, we know little about how state supreme courts react to this legislation. In this paper, I begin the examination into how state courts react to court-curbing legislation by looking to the court’s exercise of its judicial review power. I theorize that state supreme courts are less likely to invoke their power of judicial review when facing increased court-curbing legislation because judicial review is the most direct form of communication between the branches. I also argue communication is necessarily conditioned by the methods of selection and retention in the states. Examining narrow and broad court curbing, I find that neither type of introduction affects the use of judicial review by the state supreme courts and that, in line with previous scholarship, courts are using legislative ideology as an informational signal in this interbranch interaction.","PeriodicalId":45509,"journal":{"name":"Justice System Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2022-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"76849833","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-02DOI: 10.1080/0098261x.2022.2154968
Amy Steigerwalt
{"title":"Letter from the Editor","authors":"Amy Steigerwalt","doi":"10.1080/0098261x.2022.2154968","DOIUrl":"https://doi.org/10.1080/0098261x.2022.2154968","url":null,"abstract":"","PeriodicalId":45509,"journal":{"name":"Justice System Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2022-10-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84313512","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-09-20DOI: 10.1080/0098261X.2022.2123287
M. Catalano
Abstract Court curbing, proposed policy that attempts to “restrict, remove or otherwise limit” the power of the judiciary, occurs regularly and with considerable variation throughout the US states. I deviate from past studies, which consider court curbing as an ex post control mechanism, by focusing on ex ante controls of state courts – judicial selection rules and processes. I argue that levels of political party influence over judicial selection (before a judge is seated) alter the motivation to engage in court curbing after a judge is seated. I test this novel ex ante explanation with an original data set of court curbing and judicial selection from 2015 to 2018. Mixed results offer some support for my theory while opening new opportunities for study, particularly among partisan election systems.
{"title":"Ex Ante and Ex Post Control over Courts in the US States: Court Curbing and Political Party Influence","authors":"M. Catalano","doi":"10.1080/0098261X.2022.2123287","DOIUrl":"https://doi.org/10.1080/0098261X.2022.2123287","url":null,"abstract":"Abstract Court curbing, proposed policy that attempts to “restrict, remove or otherwise limit” the power of the judiciary, occurs regularly and with considerable variation throughout the US states. I deviate from past studies, which consider court curbing as an ex post control mechanism, by focusing on ex ante controls of state courts – judicial selection rules and processes. I argue that levels of political party influence over judicial selection (before a judge is seated) alter the motivation to engage in court curbing after a judge is seated. I test this novel ex ante explanation with an original data set of court curbing and judicial selection from 2015 to 2018. Mixed results offer some support for my theory while opening new opportunities for study, particularly among partisan election systems.","PeriodicalId":45509,"journal":{"name":"Justice System Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2022-09-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72400250","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-09-19DOI: 10.1080/0098261X.2022.2123288
Azul A. Aguiar-Aguilar
Abstract Judges' legal culture is a factor that has been regarded as an important explanation of judicial behavior. As a concept, however, it has been difficult to operationalize and measure and, therefore, frequently dismissed. In this piece, I bridge three different literatures, tackling the lack of theorization in judicial politics' ideational accounts when dealing with the concept of judges' legal culture. Then, I use an original survey with federal judges in intermediate courts in Mexico and conduct a factor analysis to identify judges' legal culture and determine to what extent judges hold a positivist or a constitutionalist legal culture.
{"title":"Understanding the Judiciary from the Inside. The Legal Culture of Judges in Mexico1","authors":"Azul A. Aguiar-Aguilar","doi":"10.1080/0098261X.2022.2123288","DOIUrl":"https://doi.org/10.1080/0098261X.2022.2123288","url":null,"abstract":"Abstract Judges' legal culture is a factor that has been regarded as an important explanation of judicial behavior. As a concept, however, it has been difficult to operationalize and measure and, therefore, frequently dismissed. In this piece, I bridge three different literatures, tackling the lack of theorization in judicial politics' ideational accounts when dealing with the concept of judges' legal culture. Then, I use an original survey with federal judges in intermediate courts in Mexico and conduct a factor analysis to identify judges' legal culture and determine to what extent judges hold a positivist or a constitutionalist legal culture.","PeriodicalId":45509,"journal":{"name":"Justice System Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2022-09-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77289535","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-09-09DOI: 10.1080/0098261X.2022.2120841
Thomas G. Hansford, S. Depaoli, Kayla S. Canelo
Abstract Scholars have been limited in the development and testing of theory regarding the incidence and impact of organized interest advocacy at the U.S. Supreme Court due to a critical measurement issue - the inability to properly locate these interests in the legal policy space in which the Court operates. We treat the positions articulated by organized interests in their amicus curiae briefs as “votes” in Court cases, allowing us to use an IRT model to estimate the locations of both the 600 most active organized interests and the justices in the same legal policy space. The resulting ideal point estimates yield substantive implications (e.g., the distribution of organized interest ideal points is slightly to the left of the justices) and lend themselves to a number of future applications to important questions involving judicial politics in the United States.
{"title":"Estimating the Ideal Points of Organized Interests in Legal Policy Space","authors":"Thomas G. Hansford, S. Depaoli, Kayla S. Canelo","doi":"10.1080/0098261X.2022.2120841","DOIUrl":"https://doi.org/10.1080/0098261X.2022.2120841","url":null,"abstract":"Abstract Scholars have been limited in the development and testing of theory regarding the incidence and impact of organized interest advocacy at the U.S. Supreme Court due to a critical measurement issue - the inability to properly locate these interests in the legal policy space in which the Court operates. We treat the positions articulated by organized interests in their amicus curiae briefs as “votes” in Court cases, allowing us to use an IRT model to estimate the locations of both the 600 most active organized interests and the justices in the same legal policy space. The resulting ideal point estimates yield substantive implications (e.g., the distribution of organized interest ideal points is slightly to the left of the justices) and lend themselves to a number of future applications to important questions involving judicial politics in the United States.","PeriodicalId":45509,"journal":{"name":"Justice System Journal","volume":null,"pages":null},"PeriodicalIF":0.7,"publicationDate":"2022-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85707761","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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