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Before Supreme Court nominees are allowed take their place on the high Court, they must face a moment of democratic reckoning by appearing before the Senate Judiciary Committee. Despite the potential this holds for public input into the direction of legal change, the hearings are routinely derided as nothing but empty rituals and political grandstanding. In this book, Paul M. Collins, Jr. and Lori A. Ringhand present a different view. Using both empirical data and stories culled from more than seventy years of transcripts, they demonstrate the hearings are a vibrant and democratic forum for the discussion and ratification of constitutional change. As such, they are one of the ways in which “We the People” take ownership of the Constitution by examining the core constitutional values of those permitted to interpret it on our behalf.
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.
This article uses an original database of confirmation hearing dialogue to examine how the Senate Judiciary Committee’s role in Supreme Court confirmations has changed over time, with particular attention paid to the 1939-2010 era. During this period, several notable developments took place, including a rise in the number of hearing comments, increased attention to nominees’ views of judicial decisions, an expansion of the scope of issues addressed, and the equalization of questioning between majority and minority party senators. We demonstrate that these changes were shaped by both endogenous and exogenous factors to promote the legitimization of the Judiciary Committee’s role in the confirmation process and to foster the instrumental goals of senators. This research contributes to our understanding of the development of political institutions, interbranch interactions, and how institutional change affects the behavior of legal and political actors.
We address fundamental questions about the ability of interest groups to shape public policy by examining the influence of amicus curiae briefs on U.S. Supreme Court majority opinion content. We argue that the justices will incorporate language from amicus briefs into their opinions based on the extent to which the amicus briefs contribute to their ability to make effective law and policy. Using plagiarism detection software and other forms of computer assisted content analysis, we find that the justices adopt language from amicus briefs based primarily on the quality of the brief ’s argument, the level of repetition in the brief, the ideological position advocated in the brief, and the identity of the amicus. These results add fresh insight into how interest groups influence the development of federal law by the Supreme Court.
Although scholars have devoted substantial effort to exploring why presidents speak on a host of topics, no research has specifically investigated the frequency of presidential public commentary about Supreme Court decisions. To address this significant issue, we examine why presidents discuss Supreme Court cases in their public comments from the Eisenhower to Obama administrations. Consistent with our theoretical expectations, our empirical findings support two primary conclusions. First, presidents speak most frequently after cases have been decided. Second, the monthly volume of presidential remarks on Court cases is shaped to varying degrees by presidents’ desires to bolster their reelections, policy goals, and historical legacies. By shedding new light on why presidents comment publicly on Supreme Court cases, this research contributes to our understanding of presidential speechmaking, executive-judicial branch interactions, and how norms and institutions shape the behavior of political actors.
We contribute to the literature 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. Using an original data set, we find evidence that moderate and conservative judges are influenced by amicus briefs, but that liberal judges do not respond to these persuasion attempts. We conclude that this form of interest group lobbying influences judicial decision making by at least some judges and that understanding the efficacy of this interest group strategy requires an appreciation of how political actors process persuasive information.
Though there has been a substantial amount of research on the strategic behavior of legal 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 consider key challenges associated with the empirical modeling of strategic behavior related to the selection of an appropriate unit of analysis for study and the consequences of introducing multicollinearity into statistical models. 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, and that this behavior is seldom captured by traditional quantitative analyses of judicial behavior. Though our focus is on court of appeals judges, we are confident our conclusions inform studies of strategic behavior in a variety of contexts.
We contribute to the debate among academics, practitioners, and judges regarding the extent to which amicus curiae briefs provide novel information or repeat arguments already available to courts. Using plagiarism detection software to compare the language used in 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.
Scholars, politicians, and legal commentators from across the ideological spectrum seem to agree that the U.S. Supreme Court confirmation process is broken and needs to be fixed. Reform proposals vary, but share a common assumption that if we do not do something the legitimacy of the Court will be at risk.
This Article presents an alternative view, arguing that the confirmation process is in fact functioning just fine. The way we confirm Supreme Court nominees today is not perfect, but nor is it all that bad. If there is a crisis facing the high Court today, it lies not in the rigors of the confirmation process, but in the growing gap between how scholars understand the role of the Constitution and the Supreme Court, and the rhetoric that defines that role during confirmation hearings. Closing that gap, rather than changing the confirmation process, may be the best way to preserve support for judicial independence in an increasingly diverse and-at the moment-sharply divided nation.
We argue that the current confirmation process does three important and underappreciated things, each of which could, if better understood, contribute to a deeper understanding of the role the process plays in our governing system: it provides democratic validation of previously contested constitutional choices made by the Supreme Court; it provides a public forum in which electorally accountable actors argue about what should and should not be considered part of our constitutional consensus; and it provides an opportunity for dialogue between the Court, the Senate, and the public.
Each of these features of the current system work to ensure that the long term constitutional preferences of the people are, over time, embraced by the Court as part of our core constitutional understanding. Moreover, each does so in ways that are distinct from ordinary politics. A better understanding of these features may thus help nudge confirmation discourse past the stale dichotomy of “umpires” and “activists” and toward a better understanding of the value of the Court and the Constitution we actually have.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.