b'Open Judicial Politics\n\n\x0cOpen Judicial Politics\nCOLLECTED WORKS\n\nSUSAN ACHURY, MILES T. ARMALY, CHRISTINE M. BAILEY, MEGAN BALCOM, ALYSON\nHENDRICKS-BENTON, HENRIK LITLER\xc3\x89 BENTSEN, RYAN C. BLACK, JOSEPH P. BOLTON, ALAN\nCARDENAS, ROBERT A. CARP, AUSTIN CARSH, SCOTT A. COMPARATO, TAO DUMAS, BAILEY\nR. FAIRBANKS, KENNETH E. FERNANDEZ, MICHAEL P. FIX, JOHN WAGNER GIVENS, SHANE A.\nGLEASON, GREG GOELZHAUSER, AIDAN GONZ\xc3\x81LEZ, SCOTT HOFER, JASON A. HUSSER,\nPETAR JEKNIC, BEN JOHNSON, SUSAN W. JOHNSON, JENNA BECKER KANE, JEANINE E.\nKRAYBILL, CHRISTOPHER D. KROMPHARDT, ELIZABETH A. LANE, KENNETH L. MANNING,\nANA R. MARTIN, MARK JONATHAN MCKENZIE, WILLIAM P. MCLAUCHLAN, MARK C. MILLER,\nCAROL MORENO, KYLE J. MORGAN, LAURA P. MOYER, RICHARD L. PACELLE JR. , JONATHAN\nA. PICADO, RICHARD S. PRICE, BARRY W. PYLE, KIRK A. RANDAZZO, REBECCA A. REID,\nKRISTEN M. RENBERG, DOUGLAS RICE, KRISTENNE M. ROBISON, ADAM G. RUTKOWSKI,\nJOHN M. SCHEB II, JESSICA A. SCHOENHERR, RACHEL A. SCHUTTE, HEMANT K. SHARMA,\nJON K\xc3\x85RE SKIPLE, LAUREN SLUSS, CRAIG ALAN SMITH, SHANNON ISHIYAMA SMITHEY,\nRORIE SPILL SOLBERG, RONALD STIDHAM, MOLLY STONE, CHRISTOPHER STOUT, LOGAN\nSTROTHER, AND ERIC WALTENBURG\nOREGON STATE UNIVERISTY\nCORVALLIS, OR\n\n\x0cOpen Judicial Politics by Rorie Spill Solberg & Eric Waltenburg is licensed under a Creative Commons\nAttribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.\n\nPublication and ongoing maintenance of this textbook is possible due to grant support from Oregon State\nUniversity Ecampus.\nOERU Editorial support: Ariel Meshorer\nOERU Illustration support: Daniel Thompson\nSuggest a correction (bit.ly/33cz3Q1)\nPrivacy (open.oregonstate.education/privacy)\nThis book was produced with Pressbooks (https://pressbooks.com) and rendered with Prince.\n\n\x0c\x0cContents\n\nIntroduction\n\n1\n\nPart I. Actors in the Judicial Process\nLawyers\n1. Riddled with Exclusivity\n\n3\n4\n\nThe Homogeneity of the Supreme Court Bar in the Roberts Court\nAustin Carsh\n2. Examining Diversity, Inclusion, and Equity in the Legal Profession\n\n42\n\nAn Analysis of Career Tracks and Representation\nScott Hofer and Susan Achury\n3. On Remand\n\n69\n\nLegal Strategies After Supreme Court Losses\nRichard S. Price\nJudges\n4. Intersectional Representation on State Supreme Courts\n\n93\n95\n\nGreg Goelzhauser\n5. Women of SCOTUS\n\n123\n\nAn Analysis of the Different Voice Debate\nJeanine E. Kraybill\n6. In a Different Voice\n\n143\n\nAn Analysis of How California State Judicial Officers View Gender Dynamics on the\nBench\nJeanine E. Kraybill\n7. Walking on Broken Glass\n\n164\n\nJustice Gender in State Supreme Court Citations\nShane A. Gleason, Scott A. Comparato, and Christine M. Bailey\n8. The Transmission of Legal Precedent in the U.S. Court of Appeals\nKristen M. Renberg\n\n185\n\n\x0c9. Trump\xe2\x80\x99s Judges and Diversity\n\n201\n\nRegression to the Mean or Remaking the Judiciary?\nPetar Jeknic, Rorie Spill Solberg, Eric Waltenburg, and Christopher Stout\n10. The Appearance of Justice\n\n223\n\nA Historical Case Study Evaluating One Supreme Court Justice\xe2\x80\x99s Recusal Decisions\nCraig Alan Smith\nCongress\n11. The Relationship between the Federal Courts and the Two Congressional Judiciary\n\n248\n249\n\nCommittees\nMark C. Miller\n12. Senatorial Speeches from Thomas to Kavanaugh\n\n272\n\nA Short Note\nMolly Stone, Carol Moreno, Lauren Sluss, Rorie Spill Solberg, and Eric Waltenburg\nInterest Groups\n13. Opposition to Abortion, Then and Now\n\n289\n290\n\nHow Amicus Briefs Use Policy Frames in Abortion Litigation\nLaura P. Moyer, Alyson Hendricks-Benton, and Megan Balcom\n14. Institutional Determinants of Amici Filings across State Supreme Courts\n\n313\n\nJenna Becker Kane\n\nPart II. Court Procedures\nCivil Courts\n15. How Much is a Leg Worth?\n\n338\n339\n\nWhat do Civil Trial Courts Do, and Why Should We Care?\nTao Dumas\n16. On Their Best Behavior?\n\n377\n\nForeign Plaintiffs in Chinese Administrative Litigation\nJohn Wagner Givens\nAppellate Courts\n17. Judicial Discretion and US Supreme Court Agenda Setting\n\n407\n408\n\nElizabeth A. Lane, Jessica A. Schoenherr, Rachel A. Schutte, and Ryan C. Black\n18. An Empirical Examination of the Business of the Montana Supreme Court\nWilliam P. McLauchlan\n\n448\n\n\x0cPart III. Decision Making\n19. Constitutional Interpretation Styles of US Supreme Court Justices\n\n495\n\nAdam G. Rutkowski\n20. Mother Nature, Lady Justice\n\n515\n\nEcofeminism and Judicial Decision-Making\nJonathan A. Picado and Rebecca A. Reid\n21. Strategic Activism\n\n535\n\nA Comparative View of Judges as Institution Builders\nShannon Ishiyama Smithey\n22. Human Rights and Court Activism in the Mexican Supreme Court\n\n558\n\nRebecca A. Reid\n23. Explaining Dissent Rates on a Consensual Danish Supreme Court\n\n576\n\nHenrik Litler\xc3\xa9 Bentsen, Mark Jonathan McKenzie, and Jon K\xc3\xa5re Skiple\n24. At the Intersection of Law and Identity\n\n608\n\nImmutable Characteristics, Voter Preferences, and Strategic Voting on State Supreme\nCourts\nAidan Gonz\xc3\xa1lez, Bailey R. Fairbanks, and Shane A. Gleason\n25. To Publish or Not Publish\n\n629\n\nExploring Federal District Judges\xe2\x80\x99 Published Decisions\nSusan W. Johnson, Ronald Stidham, Kenneth L. Manning, and Robert A. Carp\n\nPart IV. Public Opinion\n26. The Impact of Democratic Consolidation on Public Confidence in Courts\n\n656\n\nMichael P. Fix, Kirk A. Randazzo, and Ana R. Martin\n27. Influence of Politicians on Public Support for the Judiciary\n\n675\n\nMiles T. Armaly\n28. Experimentally Measuring Responsiveness to Criticisms of the US Supreme Court\n\n689\n\nas Antidemocratic\nKyle J. Morgan\n29. Public Attitudes toward State Courts\n\n721\n\nKenneth E. Fernandez and Jason A. Husser\n30. Does the US Supreme Court Respond to Public Opinion?\nBen Johnson and Logan Strother\n\n751\n\n\x0cPart V. Media\n31. The Language of Newspaper Coverage of the US Supreme Court\n\n770\n\nDouglas Rice\n32. Black Robes in the Limelight\n\n789\n\nNews Values and Requests to Televise Oral Arguments in the Ninth Circuit Court of\nAppeals, 1991\xe2\x80\x932005\nJoseph P. Bolton and Christopher D. Kromphardt\n\nPart VI. Policy Making\n33. Issue Emergence and Evolution in the US Supreme Court\n\n805\n\nRichard L. Pacelle Jr. and Barry W. Pyle\n34. Race and the Death Penalty in Tennessee, 1977\xe2\x80\x932016\n\n828\n\nJohn M. Scheb II and Hemant K. Sharma\n35. Trial Court Policy Making\n\n852\n\nThe Case of Criminal Probation\nShannon Ishiyama Smithey and Kristenne M. Robison\n36. High Courts and International Norms Institutionalization\n\n867\n\nRebecca A. Reid and Kirk A. Randazzo\n37. Courts as Colonizers or Protectors?\n\n879\n\nIndigenous Peoples before the Mexican Supreme Court\nAlan Cardenas and Rebecca A. Reid\nAbout the Authors\n\n900\n\nCreative Commons License\n\n913\n\nRecommended Citations\n\n914\n\nVersioning\n\n916\n\n\x0cIntroduction\nThe impetus for this volume was a multitude of conversations regarding pedagogy and teaching\nrelated to our judicial process courses. Based on these conversations, we identified four main\nthreads or needs of our colleagues: First, many of us bring or want to bring more \xe2\x80\x9cpolitical\nscience\xe2\x80\x9d into our classes, though we also want to avoid the high costs of reinventing successful\nexisting courses to do so. Second, our programs all require a political methodology course, and we\nwant to reinforce those lessons in our substantive courses. We want to encourage our students\xe2\x80\x99\nunderstanding of how to read and understand research studies as well as how to craft their own\nresearch questions. Third, we want to keep our courses as current as possible. And fourth, we\nwanted to find a way to bring the cost of our courses down, as we see so many students struggle\nwith the high costs of a college degree. This volume (as well as any future editions) addresses each\nof these concerns. Open Judicial Politics is a compilation of new and original research in judicial\npolitics written specifically for the undergraduate audience, thus providing accessible examples of\npolitical science research that also address some of the more current concerns and controversies\nin our field. Additionally, every article is accompanied by some type of classroom activity\xe2\x80\x94from\nbasic discussion questions to full-blown simulations\xe2\x80\x94that makes it easier for instructors to adapt\nthe material to their courses and enhance classes with interactives. The chapters of the volume\ngenerally follow the well-worn path of most textbooks of judicial politics, making the volume\nan easy companion for adoption, and the material should fit seamlessly into the preestablished\nstructures of most courses. Finally, the volume is an open-source resource, and adoption of the\ntext adds no cost for our students. Whether one uses one or ten articles, the cost remains nil.\nThis volume includes twenty-two original contributions that we have grouped into nine parts. The\nstudies cover the breadth and scope of the field of judicial politics, with attention to appellate\nand trial courts, national high courts and intermediate appellate courts, and US courts and their\ninternational counterparts, thus providing a large range of materials to complement any judicial\nprocess course or text. We are especially pleased that undergraduate students played key roles in\nthe creation of several of these studies, performing data collection and analysis as well as complete\nauthorship from stem to stern. For the second edition, we have added fifteen articles that continue\nto illustrate key concepts and aspects of judicial politics, following the same formula of empirical\nresearch tailored to an undergraduate audience, accompanied by a variety of classroom activities.\n\nIntroduction | 1\n\n\x0cPART I\n\nACTORS IN THE JUDICIAL PROCESS\nLawyers\nJudges\nCongress\nInterest Groups\n\n2 | Actors in the Judicial Process\n\n\x0cLawyers\nLawyers are an integral part of our justice system, without whom the entire process collapses.\nCourts are passive institutions, and without lawyers seeking resolutions to conflicts both civil\nand criminal, the courts would have little to no purpose and negligible role to play in politics\nand policy. In our section on lawyers, we offer two avenues of research. The first lane examines\nthe lawyers\xe2\x80\x94who they are and why that matters. In \xe2\x80\x9cRiddled with Exclusivity,\xe2\x80\x9d Austin Carsh,\nin partial fulfillment of his honors BS in political science at Oregon State University, examines\nthe demographic characteristics of the Supreme Court Bar\xe2\x80\x94the men and women who argue\nbefore the justices with some frequency. While women and people of color have made inroads\nin terms of representation in law school classes and the profession in general, Carsh finds that\nthis elite level of the profession is still woefully lacking in diversity. His conclusion connects\nthis finding to important concerns regarding the Court\xe2\x80\x99s agenda and legitimacy. Scott Hofer and\nSusan Achury take a closer look at the law school pipeline and its effect or lack thereof on the\ninclusivity of the federal judiciary, finding, like Carsh, that broadening law school representation\ndoes not automatically result in a more diverse and inclusive legal profession. The second avenue\nexamines how lawyers react to losing before the Supreme Court. Too often, a loss before the US\nSupreme Court, particularly a loss on a constitutional question, is regarded as a death knell for\nthe underlying position or idea. Professor Richard S. Price reveals that lawyers are not so easily\ndismissed. Constitutional lawyers are capable of taking a loss before the justices and reinventing\ntheir case at the state level, winning on a smaller stage and helping develop state law that is too\noften ignored for the larger federal arena.\nCarsh, Austin. \xe2\x80\x9cRiddled with Exclusivity: The Homogeneity of the Supreme Court Bar in the\nRoberts Court.\xe2\x80\x9d\nHofer, Scott and Susan Achury. \xe2\x80\x9cExamining Diversity, Inclusion, and Equity in the Legal Profession:\nAn Analysis of Career Tracks and Representation.\xe2\x80\x9d\nPrice, Richard S. \xe2\x80\x9cOn Remand: Legal Strategies After Supreme Court Losses.\xe2\x80\x9d\n\nLawyers | 3\n\n\x0c1. Riddled with Exclusivity\nThe Homogeneity of the Supreme Court Bar in the Roberts Court\nAUSTIN CARSH\n\nAs the American public is becoming increasingly diverse (Keating and Karklis 2016) and aware of\nsystemic discrimination, diversity is becoming a centerpiece of nearly every political discussion.\nOn the heels of the 2018 midterm elections, the US Congress is more diverse than it has ever\nbeen (Cordes 2019). However, even in the historically diverse 116th Congress, women only make\nup 25 percent of the Senate and 23 percent of the House compared to 51 percent of the general\npopulation, and people of color compose 22 percent of Congress compared to over 40 percent of\nthe general population (Hansen 2019).\n\n1\n\nLikewise, the federal judiciary also has a lack of diversity (Solberg and Diascro 2018), and this\noverall characterization is equally accurate at the highest level\xe2\x80\x94the Supreme Court. The\ndemographics of the Supreme Court have been quite consistent throughout its existence. There\nhave only been six justices who have not been White men in the history of the Court (Campisi\nand Griggs 2018). All six of them have served since 1967, when Thurgood Marshall, the first African\nAmerican male to become a Supreme Court justice, was appointed. Although the current Court is\nthe most diverse Court in history, it is still demographically homogenous, with 67 percent male\njustices and 78 percent White justices. In addition to gender and race, the Supreme Court has\nhistorically been educationally homogenous. Of the fifty justices who have received a law degree,\n2\n\n32 percent graduated from Harvard, and 14 percent graduated from Yale (Dhillon 2014). The\ncurrent Supreme Court is very similar in terms of education, with all nine of the justices attending\n3\n\neither Harvard Law School or Yale Law School (Strauss 2018).\n\n1. For the purposes of this study, identities are treated distinctly. While I recognize the validity of\nintersectionality and how individuals belonging to multiple marginalized groups (such as women of\ncolor) experience oppression that is greater than the sum of its parts, the data in this study do not\nallow for an intersectional analysis. Only 12 of the 876 lawyers in the Supreme Court Bar are women\nof color, which makes a rigorous statistical analysis of intersectional identities next to impossible\nwithin the confines of this study.\n2. The article was written in 2014 and thus does not account for the placement of Justices Gorsuch and\nKavanaugh\xe2\x80\x94who graduated from Harvard Law School and Yale Law School, respectively\xe2\x80\x94on the\nCourt. The percentages have been adjusted for these two additions.\n3. Justice Ginsburg attended Harvard Law School for two years before transferring to Columbia Law\nSchool for her final year.\n4 | Riddled with Exclusivity\n\n\x0cWhile there is an ongoing discussion about the diversity (or lack thereof) of the Court, there is\n4\n\nalmost no discussion about the diversity of the advocates who appear before it. Oral argument is\nopen to the public and is the most visible aspect of the Court. Thus oral argument provides the\nbest opportunity to examine the diversity of those who are influential to the Court\xe2\x80\x99s functioning.\nSince today\xe2\x80\x99s advocates are often tomorrow\xe2\x80\x99s judges and justices, it is important that these\nindividuals are included in the diversity discussion as well.\nIn order to practice before the Supreme Court, an attorney must first be admitted to the formal\nSupreme Court Bar. The barrier to entry is not high, and many lawyers will use it as a career\nmarker even if they never intend to practice before the Court. Thus the formal Supreme Court Bar\nhas many members. However, within the broader formal bar, a much smaller subsection exists:\nthe lawyers who argue before the Court. These elite lawyers wield immense power and act as\ngatekeepers of the Court. They have the experience and relationships that allow them to shape\nthe docket of the Supreme Court (McGuire 1995). Knowing the backgrounds and demographics of\nthese attorneys is vital to understanding how they represent the overall populace as well as how\nthe Supreme Court serves as a body of government. In order to get a complete understanding of\nhow the Supreme Court works as an institution, we need to know about the justices and advocates.\n\nResearch Questions\nThere are three questions this investigation seeks to answer:\n1. How homogenous is the Supreme Court Bar? In order to assess this question, the Supreme\nCourt Bar will be analyzed in terms of the following six characteristics: gender, race, law\nschool attended, undergraduate institution attended, employment category, and Supreme\nCourt clerkship status.\n2. Has the Supreme Court Bar changed since 1990? Comparisons between the current data and\nthose from McGuire (1993) will be explored to look for any differences.\n3. How representative is the Supreme Court Bar? The demographics of the Supreme Court Bar\nwill be compared to the national bar and to the US population as a whole to evaluate the\nrepresentativeness of the body.\n\n4. There is also work done on the rest of the federal judiciary and state high courts. See Solberg and\nDiascro 2018, Federal Judicial Center 2018, and American Constitution Society 2017\nRiddled with Exclusivity | 5\n\n\x0cLiterature Review\nBefore delving into the data, it is important to understand the historical background that\ncontextualizes this analysis. There are four frames that must be examined. First, the concept\nof representation will be explored to establish the judiciary and the lawyers who argue before\nthem as representative institutions. At the same time, I explore the impacts of descriptive\nrepresentation both broadly and within the judiciary. Second, a history of the legal education\nsystem will explore the barriers to entry in the legal profession that continue to affect the\nmakeup of the Supreme Court bench as well as the Supreme Court Bar. Third, the history of\ndiversity within the legal profession will further explore barriers to entry and advancement in\nthe field. Finally, the history of the Supreme Court Bar itself will be examined, including results\nof previous investigations into the homogeneity of the institution. Together, these four frames\nprovide the context necessary to discuss homogeneity within the Supreme Court Bar and the\nresulting impacts.\n\nRepresentation\nBefore evaluating the question \xe2\x80\x9cHow representative is the Supreme Court Bar?,\xe2\x80\x9d it is critical\nto understand the functions and implications of representation. Hanna Pitkin\xe2\x80\x99s 1967 book The\nConcept of Representation is often cited as the foundation for thinking about political\nrepresentation. Pitkin lays out four different views of representation: formalistic, symbolic,\ndescriptive, and substantive. Formalistic representation is simply the actual power granted from\none entity to the representative. Both symbolic representation and descriptive representation\ncenter on the demographics of the representative body, exploring how accurately they mirror the\npublic demographically and what the effects of that mirroring are. Substantive representation is\nconcerned with how closely the representative mirrors the public in terms of his or her policy\npreferences and overall political ideology.\nPitkin limits political representation to elected positions, such as legislative bodies and, to some\nextent, the executive branch. This definition necessarily excludes judicial branch and\nnongovernment lawyers as a whole. However, this distinction does not serve well in systems\nthat employ common law and where judges set precedents and make laws through their\ninterpretations. In these systems, judges act on behalf of the state, and their actions can be\nascribed to the state as a whole, which is how Hobbes viewed formalized representation (Pitkin\n1967). Even lawyers in the private sector have a role in government. Alexis de Tocqueville viewed\nlawyers writ large as essential to a functioning democracy. Lawyers are the arbiters between the\npeople and the government. They help the government ensure justice when citizens violate the\n6 | Riddled with Exclusivity\n\n\x0claw; conversely, lawyers also serve as a check on the government to ensure civil liberties are being\nmaintained and that the government is obeying its processes (Diascro and Ivers 2006). In this\nsense, while not electorally representative, lawyers often act as representatives of the people and\ncan therefore the Supreme Court bar can be evaluated in terms of its descriptive representation\n(Kenney 2013).\nWhile lawyers may be representative, and Pitkin shows how we can evaluate representatives in\nterms of diversity, the bigger question is, Why should we? The effects of diversity are numerous.\nFirst, diversity is critical to the legitimacy and functioning of an institution. Second, descriptive\nrepresentatives can serve as role models that show that institutions are accessible to people of\ntheir demographic group. Third, while not interchangeable, descriptive representation can often\ntranslate into substantive description through shared lived experiences.\nKenney (2013) argues that high levels of demographic diversity are essential for an institution in\nthe same way that representation across geographic jurisdictions is essential. Using the example\nof the European Court of Justice, Kenney contends that the requirement to have one judge from\nevery member country is a form of descriptive representation. In a hypothetical case in which one\ncountry is hurt by a ruling without a judge from that country weighing in on the decision, people\nwithin that country might be inclined to view the ruling, and the body as a whole, as illegitimate\n(Kenney 2013). In that same vein, Kenney asks, Why would qualities like gender and race be any\ndifferent? In the United States, women and people of color are routinely affected by judicial rulings\nstemming from largely White and male benches. Thus it would follow that their perceptions of the\njudiciary as a whole would be injured in a similar way (Kenney 2013).\nEmpirical data backs up Kenney\xe2\x80\x99s argument. Descriptive representation does increase positive\nsentiment toward the governing body (Tate 2003). When looking specifically within the judicial\nbranch, Scherer and Curry (2010) found that there is a direct causal link between the amount\nof perceived representation of African Americans in the federal judiciary and the perceived\nlegitimacy of the judiciary among African Americans. White people were less likely to support\nthe judiciary if they perceived either Black people to be overrepresented or White people to be\nunderrepresented on the judiciary (Scherer and Curry 2010). When an institution looks like you\nbelong there, you grant it greater legitimacy and authority. Thus descriptive representation is\nextremely important to the legitimacy of the judiciary.\nAnother effect of descriptive representation is that it can provide role models. Having increased\ndiversity within an institution signals to the citizens that the institution is not only for the\ndominant groups; it is for the marginalized communities as well (Sapiro 1981; Mansbridge 2003).\nThis impacts the legitimacy of an institution, as discussed above, and breaks down barriers to\nentry for marginalized communities (Sapiro 1981). When people in marginalized communities see\ntheir own identities reflected in government institutions, they are more likely to see that position\n\nRiddled with Exclusivity | 7\n\n\x0cas an option for them in the future and are thus encouraged to pursue positions within the\ninstitution.\nA third impact of diversity is that it has the potential to translate into substantive representation.\nIt is certainly the case that descriptive representation does not automatically lead to substantive\nrepresentation. After all, demographic groups are not monolithic, and individuals belonging to\ndemographic groups can vary widely in their ideologies and values. Simply because there is a\nrepresentative who is Black does not mean that the representative will represent the ideologies\nof all Black people. For example, Supreme Court Justice Clarence Thomas is the only Black justice\ncurrently serving on the Court, but he varies greatly from what the majority of Black Americans\nbelieve in terms of ideology (Clawson and Waltenburg 2009). There are instances in which Justice\n5\n\nThomas does draw on his identity in rulings, but they are few and far between. However, his\npresence on the Court still improves the legitimacy of the Court via descriptive representation.\nThere is mixed evidence as to the relationship between diversity and substantive judicial impacts.\nKritzer and Uhlman (1977) indicate that male and female judges do not differ on overall sentencing\nbehavior. Walker and Barrow (1985) find that there are no significant differences between male and\nfemale judges when it comes to how they view rights of the accused or how they rule on issues\nspecifically designated as women\xe2\x80\x99s issues. However, Spohn et al. (1985) found that female judges\nwere twice as likely to incarcerate defendants.\nIt could be the case that although judges belonging to a certain demographic group do not always\nexplicitly provide substantive representation for those groups, they do have a consciousness of\nthe issues surrounding the identities they represent and can act as validators of the issues the\ngroup faces. Female judges tend to notice examples of gender bias and are more likely to agree\nwith feminist propositions (Martin et al. 2002). Thus they are better able to identify and evaluate\nclaims of bias against women. The same may be true of other identities.\nSince oral argument is such a visible aspect of Supreme Court litigation, it stands to reason that\nthe same three effects of descriptive representation listed above also apply to the advocates who\nappear before the Court. The attorneys act as representatives, and as such, examining how their\nidentities may influence the legitimacy, accessibility, and substance of their work is crucial for this\ninvestigation.\n\n5. In Justice Thomas\xe2\x80\x99s concurrence in Capitol Square and Advisory Board v. Pinette 15 US 753 (1995), he\ngives a great deal of historical background into the Ku Klux Klan\xe2\x80\x99s tradition of burning flags,\ninformed in part by his lived experience as a Black man from the South.\n8 | Riddled with Exclusivity\n\n\x0cLaw School\nIn order to evaluate the homogeneity of the Supreme Court Bar, it is important to understand the\npathway to the bar, beginning with law schools. Since law schools act as gatekeepers to the legal\nprofession, demographics in law school shape the demographics of the legal profession.\nThe legal profession has undergone several key changes since the country\xe2\x80\x99s inception that have\ntransformed the field. One of these changes is the relatively recent development and subsequent\nimportance of a formalized legal education known as law school. For most of the existence of the\nlegal profession, people entered the field via apprenticeships with practicing attorneys. Although\nthe legal academy was created in 1793 at the College of William and Mary (Moline 2003), it wouldn\xe2\x80\x99t\nbe until decades later that formalized legal education became the standard for entry into the\nprofession. The early legal academy differed greatly in many aspects from the modern law school.\nFirst, the early legal academy was on the same level as an undergraduate degree. Upon formation\nin 1900, the American Association of Law Schools required that entrants needed only a high school\ndiploma to enroll (Kirkwood and Owens 1961). Graduates of law programs would earn a bachelor\nof laws (LLB) degree rather than the now common juris doctorate (JD; Moline 2003). Second, early\nlegal education programs differed in their focus. For most of the history of law schools, they were\nmore focused on producing legal scholarship than on producing practicing lawyers. The education\nwas more theoretical in nature and involved reading philosophical and religious texts (Moline\n2003).\nIn the early nineteenth century, future Supreme Court Justice Joseph Story reorganized Harvard\nLaw School to be more focused on teaching practical skills and treating law as a science rather\nthan a craft (Moline 2003). By the 1870s, several other law schools followed suit. This would mark\nthe beginning of the new approach to a legal education. Beginning in the early twentieth century,\nthe legal academy took on the burden of training the next generation of practicing lawyers (Moline\n2003). However, it would take decades for this change to permeate the field and for legal education\nto become the standard for all lawyers to receive prior to entering the workforce. The upper\nechelons of the legal profession, such as the Supreme Court, were slow to incorporate a legal\neducation. It wasn\xe2\x80\x99t until 1957, with the appointment of Justice Charles Whittaker, that every\nmember of the Supreme Court received a formal legal education (Lat and Hill 2010).\nIn modern times, law school is a virtual necessity for any potential lawyer. While there are still\nsome jurisdictions where a law degree is not a requirement for licensure, most require it (Farrell\n2014). Even in those jurisdictions that do not require it, test takers coming out of apprenticeships\nare few and far between. In 2013, only 60 of the almost 84,000 (0.07 percent) bar examinees did\nnot have a law degree. Only 28 percent of apprenticed lawyers passed a bar exam compared to\n\nRiddled with Exclusivity | 9\n\n\x0c78 percent of people who went to a law school accredited by the American Bar Association (ABA;\nFarrell 2014).\nLaw schools have historically been dominated by White males. Upon opening, many law schools\nexplicitly excluded women. Ada Kepley was the first woman to graduate from law school in\n1870 from what would eventually become Northwestern Law (Northwestern Law 2017). However,\nseveral prestigious law schools continued their female exclusion policy well into the twentieth\ncentury. For instance, Harvard Law School didn\xe2\x80\x99t begin admitting women until 1950 (Massari\n2003). Once they began to be admitted, women remained a minority for decades. It wasn\xe2\x80\x99t until\nthe 1985\xe2\x80\x9386 school year that women made up 40 percent of law school enrollees (American Bar\nAssociation 2013), and women didn\xe2\x80\x99t become the majority in law schools until the 2016\xe2\x80\x9317 school\nyear, even though they make up 51 percent of the US population (Olson 2016).\nPeople of color have also been systematically excluded from law school in the past. Historically,\nthere was no real option for Blacks to get a legal education prior to the opening of Howard\nUniversity in 1867 (Corbett 2008). However, enrollment was extremely limited, and it took nearly\nseventy years before other historically Black colleges and universities (HBCUs) would open law\nschools (Corbett 2008). It wasn\xe2\x80\x99t until 1950 that law school became desegregated by order of the\nUS Supreme Court in Sweatt v. Painter 339 US 629 (1950). In Sweatt, the Court ruled that there was\nno equivalence between a hastily established Texas law school for Blacks and the well-established\nWhite-only University of Texas (UT), and thus UT may not discriminate based on race (Corbett\n2008). The ruling in Sweatt desegregated law schools on paper.\nHowever, the legal desegregation of law schools did not remove all barriers to entry for people of\ncolor. The admissions process into most law schools greatly emphasizes the Law School Admission\nTest (LSAT; Randall 2006; Corbett 2008). The LSAT has been shown to be biased against minority\ngroups and has been used as a reason to reject applicants of color (Randall 2006). Affirmative\naction programs implemented in the 1950s and 1960s did help increase minority enrollment;\nhowever, there has been a stagnation of minority enrollment in the twenty-first century (Corbett\n6\n\n2008). Minority enrollment lagged behind the general population for many years, and in 2016, just\n32 percent of all entering law students were ethnic minorities, though they compose 40 percent\nof the total US population (Corbett 2008; American Bar Association 2018).\nLaw schools have been making other efforts to increase the diversity of their student body in\nrecent years. The designator \xe2\x80\x9cunderrepresented minority\xe2\x80\x9d (URM) was created to try to counteract\nsome of the implicit bias present in the utilization of the LSAT. Being a URM does increase one\xe2\x80\x99s\nchances of admittance in law schools, and that advantage is higher in the higher tiers (Plainview\n\n6. There has been a backlash to affirmative action programs and court rulings stopping some programs\nthat may be contributing to the stagnation.\n10 | Riddled with Exclusivity\n\n\x0c2017). However, those URM advantages don\xe2\x80\x99t always correlate to an increase in the proportion of\nURM students in law schools. In fact, law schools with high LSAT medians (which tend to correlate\nwith high rankings) were more likely to see a drop in the percentage of students of color between\n2010 and 2013 (Taylor 2015). In that same time frame, bottom-tier schools have seen a sharp\nincrease in the proportion of students of color attending (Taylor 2015).\nWhile in the aggregate law schools are becoming diverse, that will not necessarily translate into\nthe upper echelons of the legal profession due to the stratification of law schools into different\ntiers and the implications for employment after graduating. While the most famous and widely\ncited rankings come from the US News and World Report (USNWR), several other rankings exist,\nsuch as the Above the Law Top 50 Law School Rankings, the Academic Ranking of World Universities,\nand the Times Higher Education World University Rankings, among others. Each of these rankings\nhas a different methodology, yet they all tell a similar story: there are tiers of law schools. The\n7\n\nhighest tier includes the Ivy League , Stanford, and the University of Chicago. While the exact\ncutoff between Tier 1 and Tier 2 schools is difficult to ascertain, it is clear that these schools\nhave a distinct advantage in placing their graduates into legal jobs in terms of both quantity and\nquality. The 2018 ABA employment reports indicate that the top twenty law schools (according\nto the USNWR) placed, on average, 87 percent of students into jobs that require passage of the\nbar compared to 64.7 percent on average for schools outside of the top twenty. Additionally, toptwenty schools placed 44 percent of their graduates into firms with over 500 people compared to\n4 percent of graduates from schools outside of the top twenty. Firms with over 500 people tend\nto be the most prestigious and well-paid in the country. Eighty-eight percent of the Vault 50 and\n79 percent of the Vault 100 most prestigious firms in the US have more than 500 lawyers, and the\naverage number of lawyers at a Vault 100 firm is 1,176 (Vault 2018). With this in mind, it is clear\nthat \xe2\x80\x9celite\xe2\x80\x9d law schools have an outsized role in the legal profession. Thus an understanding of the\ndiversity of these law schools is critical in order to understand the diversity of the upper tiers of\nlegal employment.\nWhen just focusing on the USNWR Top 20, the numbers shift slightly from the overall percentages.\nThe proportion of women is slightly lower in the top twenty (50 percent) than in the rest of\nthe schools (51.51 percent). There is a much greater disparity when looking at students of color.\nStudents of color only make up 29 percent of the students in the top twenty, while they make\nup 32.7 percent of students in the rest of the schools (American Bar Association 2018). So while\nlaw schools appear to be representing students proportionally at face value, women and minority\nstudents are more likely to attend lower-ranked schools, which can affect bar passage chances as\nwell as employment prospects. Lower-ranked schools do not provide the same opportunities to\n\n7. The Ivy League has five law schools: Yale, Harvard, Columbia, University of Pennsylvania, and\nCornell.\nRiddled with Exclusivity | 11\n\n\x0caccess the upper echelons of the legal profession, such as clerkships and appearing in front of the\nSupreme Court.\n\nLegal Profession\nThe legal profession, much like law schools, is a historically exclusive industry. Both women and\npeople of color face several hurdles, explicit and implicit, in trying to enter the legal profession.\nWhile progress has been made, significant obstacles still exist.\nWomen were explicitly banned from practicing law for many years. Belle Babb Mansfield became\nthe first woman admitted to a state bar when in 1869, Iowa admitted her (Morello 1986). At the\ntime, Iowa was the only state bar that admitted women. In 1872, the Supreme Court heard Bradwell\nv. Illinois, 83 US 130 (1872), in which Myra Bradwell appealed a decision by the Illinois Supreme\nCourt that had prevented her from being admitted to the Illinois state bar. The Supreme Court\nruled in favor of Illinois, thus causing a major setback for women. The Court ruled that practicing\nlaw was not a right guaranteed by the Privileges and Immunities Clause of the Fourteenth\nAmendment, and thus Bradwell did not have a right to be admitted to the Illinois state bar\n(Bradwell v. Illinois). As her case was moving up to the Supreme Court, Bradwell and other feminist\nactivists successfully pushed for a law in the Illinois state legislature that made gender-based\ndiscrimination in employment illegal (Willis 2017). Thus Bradwell and women at large were allowed\ninto the Illinois state bar in 1872.\nHowever, the simple removal of explicit barriers to enter bar admissions did not guarantee gender\nequality in the profession. In addition to the law school discrimination discussed above, women\nface implicit bias in the legal field. Even into the twenty-first century, the stereotype that women\nbelong in the home more than the office continues to persist. This stereotype negatively affects\nwomen\xe2\x80\x99s ability to enter and move up in the legal field especially (Negowetti 2015).\nCurrently, women still only make up around 36 percent of the national bar (American Bar\nAssociation 2017). While this is an improvement from ten years ago, when women made up only\n32 percent, women still constitute a sizeable minority of lawyers, especially considering they now\nmake up a majority of law school classes. With the recent arc toward parity in law school entrants\nand graduates, the barriers for entry into the field may be eroding. However, the barriers to\nadvancement in the field remain firmly in place.\nMany prestigious positions within the legal field remain heavily male-dominated. In private\npractice, men only make up 55 percent of associates yet constitute 82 percent of managing\npartners, 82 percent of equity partners, and 78 percent of partners (American Bar Association\n12 | Riddled with Exclusivity\n\n\x0c2017). In 2016, only 35 percent of lawyers who were promoted to partner were female (Minority\nCorporate Counsel Association 2017). In-house counsels for major corporations are also maledominated: 75.2 percent of Fortune 500 in-house counsels are male (American Bar Association\n2017). Additionally, the wage gap is present in the legal field, with female lawyers making less than\n90 percent of the wages of male lawyers.\nThe public sector sees much the same disparity that the private sector sees. While women made\nup 51 percent of total clerkships in 2009, they made up just 45 percent of the most sought-after\nfederal clerkships (National Association of Law Placement 2010). In 2015, women made up just 38\npercent of assistant US attorneys (Mukamal and Sklansky 2015). The pattern holds in the judiciary\nas well, with women being underrepresented in judgeships. In 2016, women made up 33 percent\nof the Supreme Court, 35.9 percent of the federal courts of appeal, and 33 percent of the federal\ndistrict courts (American Bar Association 2017). State courts reflect a similar pattern, with 30\n8\n\npercent of state judgeships being occupied by women (American Constitution Society 2017).\n\nPeople of color have also had a difficult time breaking through in the legal field. Although there\nhasn\xe2\x80\x99t been the explicit discrimination by state bar associations that women faced, racist attitudes\n9\n\nhave long made it challenging for people of color to succeed in the legal profession. The first\nlawyer of color was Macon B. Allen, who was admitted to practice in Maine in 1844 (Conway 2017).\nHowever, Allen was not joined by many other Black lawyers. For instance, in Virginia, there were\nonly 54 Black attorneys in 1900 despite there being more than 660,000 Black residents in Virginia\nat the time (Marshall 2003; US Census Bureau 1901).\nSimilarly to women, people of color face significant implicit bias in professional life. People of\ncolor in law firms face discrimination in the hiring process and lawyer evaluations. It has long\nbeen established that there is severe discrimination in job interviews, with people of color often\nreceiving less interview time and eye contact than White applicants (Word, Zanna, and Cooper\n1974). Traditionally White-sounding names will get more callbacks than traditionally Black or\nHispanic names (Bertrand and Mullainathan 2003). These forms of discrimination are seen in the\n\n8. The stereotypes affecting women\xe2\x80\x99s careers are not limited to the legal field. Women also see similar\ndiscrimination in science, technology, engineering, and math (STEM) jobs (Sekaquaptewa 2011);\ncorporate positions; and politics. Only 5 percent of Fortune 500 companies have a female CEO\n(Zarya 2018). Only 20 percent of the US Congress are women (Manning 2018), and there has never\nbeen a female president or vice president of the United States. On the state level, 12 percent of\ngovernors (Center on the American Governor 2018) and 25.4 percent of state legislators are women\n(Center for American Women and Politics 2018).\n9. Since people of color were systematically excluded from a large number of law schools, there was no\nneed for bar associations to explicitly prohibit them.\nRiddled with Exclusivity | 13\n\n\x0clegal field, as the ideal law candidate tends to be described as having traits that are associated with\nWhite male professionals (Negowetti 2015).\nEven after an attorney of color has been hired, he or she faces implicit bias in the workplace.\nIn firms, associates of color will often receive lower-profile cases than similarly situated White\nassociates (Negowetti 2015). The effect of this is twofold. First, it often disadvantages associates\nof color when it comes to partner promotions (Negowetti 2015). Roughly 25 percent of law\nfirm associates are minorities, but only 10 percent of equity partners are (Minority Corporate\nCounsel Association 2017). Second, it negatively affects the ability of attorneys of color to make\nconnections in the law firm, which causes high attrition rates (Negowetti 2015). Attorneys of color\nmake up 27 percent of leaving attorneys despite only representing 16 percent of law firm attorneys\n(Minority Corporate Counsel Association 2017).\nThe ills of implicit bias in legal employment are not limited to law firms. In 2010, 16 percent of all\nclerkships and 14 percent of federal clerkships were held by people of color (National Association\nof Law Placement 2010). Judgeships are also hard to come by, as only 21 percent of federal judges\n(Federal Judicial Center 2017) and 20 percent of state judges are minorities (American Constitution\n10\n\nSociety 2017).\n\nWhile the once-immense barriers to entry are being broken by women and people of color in the\nlegal profession, these groups are still wildly underrepresented in prestigious positions.\n\n10. The difficulties of finding employment for people of color due to implicit bias are hardly contained\nto the legal field. People of color often experience similar difficulties in the business world, where 27\npercent of senior executives at Fortune 500 companies are people of color (Jones 2017). While that\nappears proportional at first glance, when broken down further into racial categories, a wide\ndisparity is observed. Twenty-one percent of senior executives are Asian, 3 percent are Latino, and 2\npercent are Black (Jones 2017). A similar pattern occurs in high-profile public-sector jobs. Congress\ncurrently consists of 21.6 percent people of color; 9.4 percent are Black, 8.5 percent are Latino, 3.3\npercent are Asian / Pacific Islander, and 0.36 percent are American Indian (Manning 2018). There\nhas only been one president of color and no vice presidents of color. In 2015, people of color only\nmade up 18.1 percent of state legislators (National Conference of State Legislators 2015). Six percent\nof governors are minorities, with two Latino and one Asian governor (Center on the American\nGovernor).\n14 | Riddled with Exclusivity\n\n\x0cSupreme Court Bar\nThere are more than three hundred thousand lawyers admitted to the official bar of the US\nSupreme Court (Robinson 2016). Admittance is often viewed as a symbolic recognition of\naccomplishment in the legal field. In order to be admitted, a lawyer must (1) be admitted into and\nin good standing with the highest court in their state for three years and (2) be sponsored by\ntwo members of the Supreme Court Bar (Supreme Court 2018). As a result of the high rates of\nentry as well as the lack of purging of the bar, the official Supreme Court bar is massive. However,\nmost of those individuals will never engage directly in litigation before the Supreme Court. Given\nthe cumbersome and inaccurate nature of this official listing, most research into the Supreme\nCourt Bar focuses on those who are actively engaged in Supreme Court litigation. McGuire (1993)\ndefined the active Supreme Court Bar as those engaged in any stage of Supreme Court litigation,\nencompassing the certiorari phase, merits briefing, and the most visible stage: oral argument.\nWhile McGuire\xe2\x80\x99s definition does capture every aspect of Supreme Court litigation, when looking\nspecifically at representation, I argue it should be limited to the most visible aspect of litigation:\noral argument. Oral arguments are consistently displayed to the public in mainstream newspapers\nand blogs and other online articles (examples include Liptak 2018; Gray 2018). Since representation\nrequires the body being represented (in this case, the people) to be aware of the representation,\nthe focus on oral argument and the personalities involved make it the best arena for assessing\n11\n\nrepresentation.\n\nIn addition, advocates who appear in front of the Court multiple times act as gatekeepers who\nhave disproportionate influence over the docket of the Court. Due to their reputations and\nexperience litigating matters before the Court, these \xe2\x80\x9crepeat players\xe2\x80\x9d are often more successful\nand influential than \xe2\x80\x9cone-shotters\xe2\x80\x9d (McGuire 1995; Galanter 1974). Thus for the purposes of this\nchapter, the Supreme Court Bar will be defined as those advocates who appear in front of the\nCourt in oral argument.\nThe biggest group of repeat players are members of the office of the solicitor general (OSG).\nTasked as the official representation of the US government before the Court, this office is involved\nin most Supreme Court cases. The OSG has a great deal of influence during all stages of litigation.\nA brief from the OSG supporting a petition for certiorari can dramatically increase the odds of\nthat petition being granted (Teger and Kosinski 1980; Caldiera and Wright 1988). Attorneys in\nthe OSG are quite experienced in appellate litigation (DeSousa and Meyer 2013). Like the rest of\n\n11. Outside of opinion announcement, oral argument is really the only visible aspect of the Court\xe2\x80\x99s\nfunctioning. Oral argument also serves as the only direct interaction between the justices and the\nattorneys.\nRiddled with Exclusivity | 15\n\n\x0cthe profession, OSG is heavily male-dominated. Until the appointment of future Supreme Court\nJustice Elena Kagan in 2009, there had not been a permanent female solicitor general (SG; Sarver\n12\n\n2008).\n\nIn the private sector, the legal field has been specializing rapidly to the point where there are\nlitigators who almost exclusively practice appellate litigation (Marvell 1978). It isn\xe2\x80\x99t uncommon for\na case to change hands from one lawyer to another as it moves up in the appeals process (Marvell\n1978). Many of the most frequent Supreme Court advocates, such as Carter G. Phillips and Paul\nClement, are specialists and have experience in the OSG. Firms will often hire people out of that\noffice to bolster their appellate litigation divisions (Alder 2018).\nOne way the Supreme Court Bar has been quite limited historically is by geography. Since the\nCourt is in DC, lawyers in close proximity to DC had a \xe2\x80\x9cpractical monopoly\xe2\x80\x9d for many years\n(Warren 1911). Although transportation is more readily available in modern times, the clustering\nof legal markets has caused this to be repeated in more modern times (McGuire 1993). In 1990,\nWashington, DC; New York; and Chicago were all overrepresented in the Court when compared to\nthe percentage they make up of the national bar (McGuire 1993). The concentration of litigators\nis likely due to the types of cases that make it to the Supreme Court. The large firms located in\nthese markets are more likely to have clients that will be subject to Supreme Court litigation (such\nas major corporations), and thus those firms are more likely to appear than smaller firms (McGuire\n1993).\nThe Supreme Court Bar has also been historically limited in other demographics. Given the history\ndescribed earlier, it is not surprising that male litigators far exceed female litigators in all aspects\nof the Supreme Court Bar (McGuire 1993). Men tend to dominate most of the traditional paths\nto Supreme Court litigation\xe2\x80\x94federal clerkships and working in the OSG are stepping-stones to\nthe world of high-level appellate advocacy (Sarver 2008). This has translated to a domination of\nSupreme Court litigation as well.\nIn 1990, women only made up 7.3 percent of the Supreme Court Bar despite making up 13 percent\nof the national bar (McGuire 1993). From 1993 to 2001, 98.38 percent of oral arguments had at\nleast one male advocate; however, only 23.27 percent of oral arguments had at least one woman\nadvocate (Sarver 2008). Through the first half of October term 2018, women constituted only 15\npercent of Supreme Court advocates (Robinson and Rubin 2019).\nIn addition to gender, the Supreme Court Bar has been historically homogenous in terms of\nrace. McGuire (1993) found that the Supreme Court Bar was 98 percent White. Part of this\n\n12. Barbara Underwood briefly served as the acting solicitor general at the beginning of the George W.\nBush administration (Groll and Yiang 2009).\n16 | Riddled with Exclusivity\n\n\x0cwas due to low numbers of lawyers of color in the national bar (particularly among Hispanics).\nHowever, even when national bar proportions are taken into consideration, ethnic minorities are\nstill underrepresented.\nThe Supreme Court Bar also tends to be elite in its education. Lawyers from \xe2\x80\x9cdistinguished\xe2\x80\x9d and\n\xe2\x80\x9cstrong\xe2\x80\x9d law schools have been overrepresented in the Supreme Court Bar. Harvard, the University\nof Michigan, and the University of Texas at Austin were the top three represented schools. All\nthree of these schools are in the USNWR Top 20. Educational homogeneity was even more\npronounced when just looking at the \xe2\x80\x9cinner circle of the Bar,\xe2\x80\x9d defined as those who participated in\nmore than one merits case before the Supreme Court from 1977 to 1982. Within that group, 53.3\npercent of lawyers went to \xe2\x80\x9cdistinguished\xe2\x80\x9d schools, and 18.8 percent attended \xe2\x80\x9cstrong\xe2\x80\x9d schools.\nHarvard, Yale, Columbia, and the University of Chicago are the top four schools represented in this\n\xe2\x80\x9cinner circle,\xe2\x80\x9d collectively making up 32.2 percent (McGuire 1993). These four schools are all within\nthe top five of the USNWR rankings.\n\nConclusion\nThese four concepts combine to give the necessary context to this investigation and its\nimportance. With those frames in mind, I will now go into the methods that will govern this\ninvestigation.\n\nData and Methods\nAll analyses employ population data of attorneys participating in oral arguments before the\n13\n\nSupreme Court between October term 2005 and October term 2016. Six different characteristics\nwere collected for each lawyer: gender, race, employment at the time of the argument, law school\nattended, undergraduate institution attended, and whether they had a Supreme Court clerkship.\nLaw schools were grouped into tiers via the USNWR rankings: Tier 1 (one through twenty), Tier 2\n(twenty-one through fifty), and Tier 3 (all remaining law schools). Undergraduate institutions were\ncategorized as either public or private.\nThroughout my analysis, I employ two different ways of measuring the membership of the\nSupreme Court Bar. The first measure is the total number of appearances at oral argument (N =\n\n13. At the time of this data collection, these were the only years of the Roberts Court.\nRiddled with Exclusivity | 17\n\n\x0c2,173). Since there are some advocates who appear before the Court multiple times in the period\nunder study, the number of oral argument \xe2\x80\x9cslots\xe2\x80\x9d allows for accurate measuring for who the Court\nand the public see most often. The second measure is the individual lawyers (N = 876), which is\nsimply just treating every lawyer, regardless of the number of times he or she has appeared, as\none. For example, Paul D. Clement, who has fifty-eight appearances before the Court, accounts for\nfifty-eight slots but only one individual lawyer.\nSlots measure the frequency of who the Court and the public see, so this measurement is more\nuseful when evaluating representation. In order to determine if a group is under- or\noverrepresented, it is necessary to know not just whether the group is being represented but also\nthe extent to which they are being represented. All three impacts of representation discussed in\nthe previous section depend on visibility, which is determined by frequency of appearance.\nHowever, looking at the individual level is still useful when it comes to assessing the level of access\na group has to the institution, even if their representation does not reflect that access. McGuire\n(1993) uses individual-level data, so all comparisons to that data use individual-level data as well.\nDemographic information came from legal directories such as Martindale-Hubbell, official firm\nwebsites, or sites managed by the lawyers themselves (such as LinkedIn), with the Oyez Project\nand C-SPAN providing some pictures that were used to determine ostensible gender and race.\nThe characteristics are analyzed separately, and the three research questions will be analyzed\naccording to the following explanations.\n1. How homogenous is the Supreme Court Bar? In order to assess this question, the Supreme\nCourt Bar will be analyzed in terms of the following six characteristics: gender, race, law\nschool attended, undergraduate institution attended, employment category, and Supreme\nCourt clerkship status. Both slot-level and individual-level data are compared.\n2. Has the Supreme Court Bar changed since 1990? The demographics of the individuals who\nargued in front of the Court during the Roberts Court will be compared to those from\nMcGuire (1993) in terms of gender, race, and law school attended.\n3. How representative is the Supreme Court Bar? The demographics of the Supreme Court Bar\nwill be compared to the national bar and to the US population as a whole to evaluate the\nrepresentativeness of the body in terms of racial and gendered makeup.\nP-values represent the probability that the observed difference is caused by chance. This study\nuses a 95 percent confidence level, so any p-value that is less than 0.05 is considered statistically\nsignificant. All p-values in the tables are derived from results of difference in proportions tests. It\nis worth noting that the comparisons between these data and McGuire (1993) are imperfect due to\nthe slight difference in the operational definitions of the Supreme Court Bar. However, due to the\nfactors explained above, I believe that it is very likely that those who made it to the oral argument\n18 | Riddled with Exclusivity\n\n\x0cstage in 1990 were less diverse than the population of those participating in general. Thus if these\ndifferences have any effect on the conclusions of this investigation, they only serve to make the\nconclusions stronger due to the fact that any increases in diversity seen would likely have been\neven bigger if the two definitions were identical.\n\nResults and Discussion\nGender\nThe Supreme Court Bar is still extremely male dominated (see tables 4.1.1 and 4.1.2). Despite the\nmore than twofold increase in women\xe2\x80\x99s proportion of the Supreme Court Bar from 1990 to the\nRoberts Court, women still only make up about 16 percent of the Supreme Court Bar. There are a\ncouple possible explanations for this minor incremental change.\nTotal Argument Slots Individual Attorneys\n\nDifference\np-value\n(Slot-Indiv)\n\nMale\n\n1804 (83.02%)\n\n724 (82.65%)\n\n0.36\n\n0.81\n\nFemale\n\n362 (16.66%)\n\n145 (16.55%)\n\n0.1\n\n0.95\n\nUnknown 7 (0.32%)\n\n7 (0.80%)\n\n-0.48\n\n0.07\n\nTotal\n\n876\n\n2173\n\nTable 4.1.1. Members of the Supreme Court Bar in the Roberts Court by gender\n\nNon-SG Individuals McGuire\nDifference p-value\n(n=831)\n(n=325)\nMale\n\n83.27\n\nFemale 15.89\n\n92.62\n\n-9.35\n\nP<0.0001*\n\n7.38\n\n8.51\n\nP=0.0002*\n\nTable 4.1.2. Comparison between the Supreme Court Bar in McGuire (1993) and the Supreme Court Bar in the Roberts\nCourt (without members of the Office of the Solicitor General by gender\n\nOral Argument Slots National Population Difference p-value\nMale\n\n83.02%\n\n64%\n\n19.02%\n\np<0.0001*\n\nFemale 16.66%\n\n36%\n\n-19.34%\n\np<0.0001*\n\nRiddled with Exclusivity | 19\n\n\x0cTable 4.1.3. Proportion of oral argument slots by gender in the Roberts Court compared to the national bar\n\nOral Argument Slots National Population Difference p-value\nMale\n\n83.02%\n\n49.2\n\n-33.82\n\np<0.0001*\n\nFemale 16.66%\n\n50.8\n\n-34.14\n\np<0.0001*\n\nTable 4.1.4. Proportion of oral argument slots by gender in the Roberts Court compared to the general population\n\nThe first possible explanation is that while the change is small, it is commensurate with the shifts\nelsewhere in the legal profession ladder. Back in 1986, the national bar was about 13.1 percent\nwomen compared to 36 percent in 2017 (Curran et al. 1986 qtd in McGuire 1993; American Bar\nAssociation 2017). Women\xe2\x80\x99s representation is increasing at a similar rate in both the national\nbar and the Supreme Court Bar. In the national bar, women make up 2.7 times the proportion\nthey made in 1986 compared to women making up 2.3 times as much in the Supreme Court Bar.\nAdditionally, there was no significant difference in the proportion of slots and bar membership,\nand men and women had no differences in the average amount of cases per person, suggesting\nthat women and men participate at equal rates once they have made it to the Supreme Court Bar.\nIf that is the case, then perhaps the increase is just a \xe2\x80\x9ctrickle up\xe2\x80\x9d effect from women making up\na larger share of the national bar and law schools. Under this theory, women\xe2\x80\x99s representation in\nthe Supreme Court Bar is likely to continue to increase, as women now make up the majority of\nlaw students (Olson 2016). Additionally, if this is the case, parity is not likely to happen anytime\nsoon given the sheer size of the legal industry and the embeddedness of gender norms in the\nprofession.\nWhile it seems plausible, there is one major flaw in this explanation: in terms of frequency of\nappearances, men dominate both the top and bottom. The top ten most frequent attorneys before\nthe Court were all men, with an average of thirty-nine appearances. The most frequent female\nattorney was the twelfth most frequent overall with twelve appearances. The top ten women\nwere ranked twelfth, nineteenth, twentieth, twenty-third, twenty-ninth, thirty-third, thirty-fifth,\nthirty-sixth, thirty-seventh, and forty-fifth and had an average of fifteen appearances. At the other\nend of the spectrum, there were 653 attorneys who only argued one case, and 542 of them were\nmen, which dramatically drags the average for male attorneys down. So even though appearances\nin oral argument is proportional to the overall membership of the informal Supreme Court Bar, a\ndeeper dive into the data suggests that male attorneys make up the elite of the elite.\nA second potential explanation lies in the OSG. This office makes up a full 30 percent of oral\nargument appearances. As part of the executive branch, the OSG is shaped by the president. The\ncurrent investigation spans the last half of the George W. Bush administration and the entirety\nof the Barack Obama administration. President Obama has had a demonstrated commitment to\nincreasing diversity in the government as a whole but especially in the judicial branch (Solberg\n20 | Riddled with Exclusivity\n\n\x0cand Diascro 2018). President Obama\xe2\x80\x99s desire for diversity carried over into the OSG. Not only did\nhe name the first female SG in Elena Kagan (Oyez 2019), but his hires were considerably more\ndiverse than the prior OSG and the Supreme Court Bar overall. There were 266 oral argument\nslots that were argued by attorneys hired by the Obama administration. Of those 266, 107 (40.2\npercent) were by women. For comparison, 23.76 percent of all OSG arguments and 16.66 percent of\nall oral arguments were performed by women. Female members of the Obama OSG argued nearly\n30 percent of all oral arguments by women. If all Obama OSG hires are removed, women\xe2\x80\x99s share of\noral argument slots decreases from 16.66 percent to 13.42 percent, which is significant (p = 0.0397).\nSo President Obama\xe2\x80\x99s appointments did make a difference in the representation of women in the\nSupreme Court Bar.\n\nRace\nTotal Argument Slots Individual Attorney\n\nDifference\np-value\n(Slot-Indiv)\n\nWhite\n\n1869 (86.01%)\n\n728 (83.11)\n\n2.9\n\n0.042\n\nBlack\n\n24 (1.10%)\n\n11 (1.26%)\n\n-0.16\n\n0.71\n\nLatinx\n\n28 (1.29%)\n\n15 (1.71%)\n\n-0.42\n\n0.37\n\nAsian\n\n123 (5.66%)\n\n18 (2.05%)\n\n3.81\n\n<0.0001\n\nOther/Unknown 129 (5.94%)\n\n104 (11.87%)\n\n-5.93\n\n<0.0001\n\nTotal\n\n876\n\n2173\n\nTable 4.2.1. Members of the Supreme Court Bar in the Roberts Court by race\n\nNon-SG Individuals McGuire\nDifference p-value\n(n=831)\n(n=325)\nWhite\n\n83.39%\n\n98.15%\n\n-14.76\n\nP<0.00001*\n\nBlack\n\n1.20%\n\n0.923%\n\n-0.277\n\nP=0.9235\n\nLatinx 1.56%\n\n0.923%\n\n0.637\n\nP=0.5761\n\nAsian\n\n0%\n\n1.93\n\nP=0.02516*\n\n1.93%\n\nTable 4.2.2. Comparison between the Supreme Court Bar in McGuire (1993) and the Supreme Court Bar in the Roberts\nCourt (excepting solicitor general) by race\n\nSimilar to gender, the Supreme Court Bar is still dominated by White lawyers, with 86 percent of\noral argument slots and 83 percent of all lawyers (see table 4.2.1). At first glance, it appears that the\nRiddled with Exclusivity | 21\n\n\x0cSupreme Court Bar has been diversifying, though, with White attorneys\xe2\x80\x99 share decreasing from 98\npercent in 1990 (see table 4.2.2). However, there\xe2\x80\x99s some reason to be skeptical of this assessment.\nEleven percent of all lawyers in the Supreme Court Bar were not able to be identified with a certain\nrace. Meanwhile, Asians were the only minority group to see any significant increase. Excluding\nlawyers whose race is unknown, White attorneys constitute 91.4 percent of oral argument slots\nand 94 percent of individual lawyers. So while there has been some progress in representation, the\nracial makeup of the Supreme Court Bar has not shifted nearly as much as it has in the case of\ngender.\nThe one group that has made significant progress is Asians. In 1990, there were no Asians in the\nSupreme Court Bar, but from 2005 to 2016, they made up 5.9 percent of oral argument slots and\n2 percent of total lawyers. Asian lawyers are vastly overrepresented in oral argument given their\ntotal Supreme Court Bar membership. This is likely caused by the prevalence of Asian lawyers in\nthe OSG. The top five Asian lawyers by frequency all had significant OSG experience and were\n14\n\namong the lawyers who appeared in front of the Court the most. Those five made up 85 percent\nof all oral arguments performed by Asians as well as 60 percent of all oral arguments performed\nby attorneys of color.\nBlack and Latinx representation has remained pretty stagnant, with no significant differences in\ntheir percentages from 1990 to the Roberts Court. There has been one Black attorney with twelve\nappearances (from the OSG) and two Latinx attorneys with seven appearances each (one from the\nOSG, one solely from the private sector). Every single other Black and Latinx attorney had three or\nfewer appearances. Given the advances Black and Latinx people have made in the upper echelons\nof the professional world, this would seem to indicate that there are additional barriers in the legal\nfield that prevent these two groups from increasing their representation.\nAnother interesting thing is the intersection between race and employment. Minority attorneys\nare more likely to represent interest groups. Appearances on behalf of interest groups only make\nup 3.3 percent of all oral arguments yet make up a significant portion of minority representation.\nAttorneys appearing as part of an interest group were more diverse than the bar as a whole, with\n75.3 percent of them being White, 6.8 percent being Black, 4.1 percent being Latinx, and 6.85\npercent being Asian. The trend becomes clearer when looking at the percentage of a racial group\nthat interest group lawyers make up (see table 4.2.3).\n\n14. It is worth noting that all five of these Asian lawyers (Neal Katyal, Anthony Yang, Sri Srinivasan,\nKannon Shanmugam, and Pratik Shah) are all men.\n22 | Riddled with Exclusivity\n\n\x0cRace\n\nInterest Group Lawyers % of IG lawyers % of Racial Group that are IG lawyers\n\nWhite\n\n55\n\n75.3%\n\n2.9%\n\nBlack\n\n5\n\n6.8%\n\n20.8%\n\nLatinx\n\n3\n\n4.1%\n\n10.7%\n\nAsian\n\n5\n\n6.8%\n\n4.1%\n\nUnknown 5\n\n6.8%\n\n3.9%\n\nTable 4.2.3. Interest group lawyers by race\n\nOnly 2.9 percent of appearances by White lawyers are from interest groups compared to 20.8\npercent of appearances by Blacks, 10.4 percent of appearances by Latinx attorneys, and 4.1 percent\nof appearances by Asians. So not only are interest group lawyers more diverse than the rest of the\nSupreme Court Bar, but they also constitute a significant percentage of minority appearances.\nIn the gender section, a theory was explored suggesting that President Obama\xe2\x80\x99s commitment to\ndiversity throughout his administration made a difference in the number of women appearing\nbefore the Supreme Court. In addition to gender diversity, President Obama was also dedicated to\nracial diversity. Did this translate into a racial diversification of the Supreme Court Bar through the\nOSG? Yes, although less so than for gender. During the Obama administration, several attorneys of\ncolor were hired, and oral argument appearances were more diverse than the Supreme Court Bar\non average. Seventy-four percent of appearances in this category were White, 4.1 percent were\nBlack, 3 percent were Latinx, and 9.4 percent were Asian. Obama hires to the OSG constituted\na major percentage of appearances before the Court for minorities, with 45.8 percent of Black\nappearances, 28.6 percent of Latinx appearances, and 20.3 percent of Asian appearances. Overall,\nObama administration hires made up 25 percent of all appearances by attorneys of color.\nTotal Argument Slots National Bar Difference p-value\nWhite\n\n86.01%\n\n85%\n\n1.01\n\nP=0.1979\n\nBlack\n\n1.10%\n\n5%\n\n-3.90\n\np<0.0001*\n\nLatinx\n\n1.29%\n\n5%\n\n-3.71\n\nP<0.0001*\n\nAsian\n\n5.66%\n\n3%\n\n2.66\n\nP<0.0001*\n\nOther/Unknown 5.94%\n\n2%\n\n3.94\n\nP<0.0001*\n\nTable 4.2.4. Proportion of oral argument slots by race in the Roberts Court compared to the national bar\n\nRiddled with Exclusivity | 23\n\n\x0cTotal Argument Slots National Population Difference p-value\nWhite\n\n86.01%\n\n60.7\n\n25.31\n\nP<0.0001*\n\nBlack\n\n1.10%\n\n13.4\n\n-12.3\n\nP<0.0001*\n\nLatinx\n\n1.29%\n\n18.1\n\n-16.81\n\nP<0.0001*\n\nAsian\n\n5.66%\n\n5.8\n\n-0.14\n\nP<0.8161\n\nOther/Unknown 5.94%\n\n4.2\n\n1.74\n\nP<0.0001*\n\nTable 4.2.5. Proportion of oral argument slots by race in the Roberts Court compared to the national population\n\nCompared to the national bar and the national population, minorities are immensely\nunderrepresented. White lawyers are actually at parity representation when compared to the\nnational bar but are vastly overrepresented when it comes to the overall US population. Asian\nattorneys are overrepresented based on their proportion of the national bar but at parity\nrepresentation with respect to their share of the US population. Both Black and Latinx lawyers are\nunderrepresented compared to both the national bar and the US population.\n\nLaw School\nArgument Slots Individual Attorney\n\nDifference\np-value\n(Slot-Indiv)\n\nTier 1\n\n1628 (74.92%)\n\n484 (55.25%)\n\n19.67\n\n<0.0001\n\nTier 2\n\n218 (10.03%)\n\n126 (14.38%)\n\n-4.35\n\n0.0007\n\nTier 3\n\n265 (12.20%)\n\n224 (25.57%)\n\n-13.37\n\n<0.0001\n\nUnknown 62 (2.85%)\n\n42 (4.79)\n\n-1.94\n\n0.0104\n\nTotal\n\n876\n\n2173\n\nTable 4.3.1. Members of the Supreme Court Bar in the Roberts Court by law school tier attended\n\nThere is clear stratification among the different tiers of law schools. Those attending Tier 1\nschools, defined as the top twenty schools in the USNWR rankings, made up just over half of\nthe bar (55 percent) but about three-fourths of the oral argument (75 percent), making them\nvastly overrepresented in oral argument (p < 0.0001). Meanwhile, both Tier 2 (USNWR twenty-one\nthrough fifty) and Tier 3 (all other schools) are significantly underrepresented in oral argument.\nAttorneys from Tier 1 schools argued, on average, 3.36 times before the Court compared to 1.73\ntimes for attendees of Tier 2 schools and 1.17 times for layers from Tier 3 schools. The top ten most\nfrequent advocates all went to Tier 1 schools, averaging 39 oral arguments. The most frequent\n24 | Riddled with Exclusivity\n\n\x0cadvocate from a Tier 2 school argued thirty times, and the most frequent advocate from a Tier 3\nschool argued twenty-four times. However, both of them were from the OSG. All of this suggests\nthat while people are able to argue before the Court from all tiers of law schools, in order to be a\nrepeat player, it is a virtual necessity to go to a highly ranked school.\nBreaking down the tiers more, the data point to even more concentration at the top. the top three\nschools in the USNWR rankings (Yale, Stanford, and Harvard) are vastly overrepresented, with\ngraduates making up 24 percent of the bar but 37 percent of the oral arguments (p < 0.0001). The\ntop six schools (the top three plus Chicago, Columbia, and NYU) are also overrepresented, with\n35 percent of the Supreme Court Bar and nearly half (49 percent) of oral arguments (p < 0.0001).\nOverall, there are three times as many appearances from graduates of Tier 1 schools than of all\nother schools combined.\nOf the top ten most frequent advocates, nine of them are from USNWR top ten schools. Of these,\nthree are from Yale, which has been number one every year since the rankings have existed.\nNon-SG Individuals McGuire\nDifference p-value\n(n=831)\n(n=324)\nHarvard\n\n12.76\n\n8.64\n\n4.12\n\nP=0.06303\n\nMichigan\n\n2.65\n\n5.25\n\n-2.63\n\nP=0.0438*\n\nUTA\n\n3.01\n\n3.39\n\n-0.38\n\nP=0.8798\n\nAlabama\n\n0.12\n\n2.47\n\n-2.35\n\nP<0.00001*\n\nGeorge Washington 1.08\n\n2.16\n\n-1.08\n\nP=0.2596\n\nUVA\n\n2.29\n\n2.16\n\n0.13\n\nP=1\n\nNYU\n\n3.37\n\n1.85\n\n1.52\n\nP=0.2392\n\nBerkeley\n\n2.17\n\n1.85\n\n0.32\n\nP=0.915\n\nFlorida\n\n0.84\n\n1.54\n\n-0.7\n\nP=0.464\n\nIllinois\n\n0.48\n\n1.54\n\n-1.06\n\nP=0.1412\n\nNotre Dame\n\n1.08\n\n1.54\n\n-0.46\n\nP=7317\n\nPenn\n\n0.84\n\n1.54\n\n-0.7\n\nP=0.464\n\nSt. Louis\n\n0.48\n\n1.54\n\n-1.06\n\nP<0.1412\n\nYale\n\n8.18\n\n1.54\n\n6.64\n\nP<0.00001*\n\nTable 4.3.2. Comparison between the Supreme Court Bar in McGuire (1993) and the Supreme Court Bar in the Roberts\nCourt (excepting solicitor general) by law school attended\n\nOn an individual level, the Supreme Court Bar seems to be even more top-heavy than it was\nin 1990 when it comes to individuals who are unaffiliated with the OSG (see table 4.3.2). Three\nRiddled with Exclusivity | 25\n\n\x0cdifferent law schools experienced statistically significant changes between 1990 and 2005\xe2\x80\x9316. The\nUniversity of Michigan law school\xe2\x80\x99s share of the Supreme Court Bar was nearly cut in half from 5.3\npercent to 2.7 percent (p = 0.0438). The University of Alabama\xe2\x80\x99s law school share dropped from 2.5\npercent to 0.12 percent, having only one lawyer argue in the first twelve years of the Roberts Court\n(p < 0.0001). The only school that had a significant increase was Yale Law School, which saw its\nrepresentation increase more than fivefold from 1.5 percent to more than 8 percent (p < 0.0001).\nHarvard Law School\xe2\x80\x99s increase is squinting toward significance (p = 0.06303). Of the statistically\ninsignificant changes from 1990, only three of them are increases, and all three of those schools\nare in the USNWR top 10.\nIntuitively, it does make sense that an institution in the upper echelons of a field would require\ntop-notch credentials and thus have proportionally more lawyers from the top-ranked law\nschools. However, when there is such a concentration of power at the very top as there is in\nthe Supreme Court Bar, then those law schools effectively act as intellectual bottlenecks, and the\nschools themselves can have an outsized influence on the institution.\nWith that in mind, it would also follow that an office as prestigious as the OSG would be filled\nwith people with high credentials\xe2\x80\x94in this case, degrees from top law schools. The data bears this\nexpectation out, with over 90 percent of oral argument slots and 82 percent of individual lawyers\nfrom the OSG coming out of Tier 1 law schools. While slots from Obama hires to the OSG were\nonly 86 percent from Tier 1 law schools, it is still more than the overall Supreme Court Bar average,\nso President Obama didn\xe2\x80\x99t significantly change the office in that regard.\n\nUndergraduate Institution\nTotal Argument Slots Individual Attorneys\n\nDifference\np-value\n(Slot-Indiv)\n\nPrivate\n\n1445 (66.50%)\n\n499 (56.96%)\n\n9.54\n\n<0.0001\n\nPublic\n\n627 (28.85%)\n\n302 (34.47%)\n\n-5.62\n\n0.0023\n\nUnknown 101 (4.65%)\n\n75 (8.56%)\n\n-3.91\n\n<0.0001\n\nTotal\n\n876\n\n2173\n\nTable 4.4.1. Members of the Supreme Court Bar in the Roberts Court by type of undergraduate institution attended\n\nUndergraduate schools are polarized in the Supreme Court Bar, albeit to a lesser extent than\nlaw schools. Unlike law school, there is no predominant ranking system for undergraduate\ninstitutions, especially given the diversity of majors available. Thus this investigation is solely\nfocused on public versus private undergraduate institutions. While not a perfect proxy, private\n26 | Riddled with Exclusivity\n\n\x0cinstitutions are commonly considered to be more prestigious than public universities (Wong\n2018). Private undergraduate institutions are overrepresented in oral argument relative to their\nindividual representation in the Supreme Court Bar, with 66.5 percent of the argument slots\nand only 57 percent of the individual lawyers. Likewise, public undergraduate institutions are\nunderrepresented in oral argument.\nUndergraduate institutions in and of themselves probably are not a great predictor of arguing\nin front of the Court. After all, there are 13.3 million college students in the United States, with\naround 3.4 million of them attending private universities (NCES 2018; NAICU 2018). With the many\ndifferent types of undergraduate majors and programs available, simply going to a private school\ndoes not dramatically increase those chances. However, going to an elite school can often shape\nthe opportunities one has after attending (Wong 2018). In that sense, it is important to see if elite\nundergraduate colleges translate to a more elite law school placement.\nIn the Supreme Court Bar, there is an association between tier of law school and type of\nundergraduate institution. Sixty-nine percent of those from private undergraduate schools went\nto Tier 1 schools compared to just 41 percent from public undergraduate schools. Additionally, of\nthose from Tier 1 law schools, 71 percent went to private institutions and 25 percent to public\ninstitutions. For Tier 2 law schools, the proportions are exactly the same, with 48.4 percent of\nthem coming from private institutions and 48.4 percent coming from public institutions. In Tier\n3 law schools, only 41 percent come from private and 51 percent come from public schools. This\nwould suggest that the path to the Supreme Court Bar starts even before matriculating into law\nschool.\n\nRiddled with Exclusivity | 27\n\n\x0cEmployment Category\nTotal Argument Slots\nFederal Government\n\n684 (31.48%)\n\nState and Local Government 233 (10.72%)\nInterest\n\n73 (3.36%)\n\nVault 100 Firm\n\n620 (28.53%)\n\nOther Firm\n\n316 (14.54%)\n\nSolo\n\n39 (1.79%)\n\nAcademic\n\n61 (2.81%)\n\nPublic Defenders\n\n77 (3.54%)\n\nIn-House counsel\n\n5 (0.23%)\n\nUnknown\n\n65 (2.99%)\n\nTotal\n\n2173\n\nTable 4.5.1. Members of the Supreme Court Bar in the Roberts Court by employment category\n\nAs has been noted previously, the OSG dominates oral argument slots, claiming 31.5 percent. The\nimpact of the OSG is not limited to its direct representation, though\xe2\x80\x94several of the top private\nSupreme Court litigators had experience in the OSG. The next biggest group is Vault 100 firms,\nwhich make up 28.53 percent of the slots. Of the twenty-six lawyers who argued ten or more cases,\ntwenty-three of them spent at least some of their slots representing the OSG. The other three\nalso had OSG experience, including one SG; they just did not spend time there during the Roberts\nCourt. Attorneys such as former SG Paul Clement, former SG Theodore Olson, and former acting\nSG Neal Katyal have all left the OSG to join lucrative practices in Vault 100 firms, which are the\nsecond-most represented employment category.\nNon-SG individuals McGuire\nDifference p-value\n(n=831)\n(n=325)\nPrivate\n\n52.71\n\n75.08\n\n-22.37\n\nP<0.0001*\n\nState and Local\n\n19.45\n\n16.61\n\n2.84\n\nP=0.296\n\nOrganized Interests 6.74\n\n2.46\n\n4.28\n\nP=0.0066*\n\nAcademic\n\n5.30\n\n1.85\n\n3.45\n\nP=0.01508*\n\nLegal Aid\n\n8.424\n\n1.54\n\n6.88\n\nP<0.0001*\n\nCorporate\n\n0.241\n\n1.23\n\n-0.99\n\nP=0.09877\n\n28 | Riddled with Exclusivity\n\n\x0cTable 4.5.2. Comparison between the Supreme Court Bar in McGuire (1993) and the Supreme Court Bar in the Roberts\nCourt (excepting solicitor general) by employment category\n\nOnce the OSG is removed, the attorneys from both Vault 100 and non\xe2\x80\x93Vault 100 firms make up a\nmajority of the Supreme Court Bar. However, the share of private practice attorneys has actually\ndecreased by 31 percent since 1990. With the exception of in-house corporate lawyers, every\nother category saw an increase, with all but one being statistically significant. Legal aides and\npublic defenders saw the biggest increase, jumping from 1.54 percent to 8.42 percent. Some of this\nincrease could be due to the changing nature of the Supreme Court docket. From 1978 to 1997,\ncases about criminal procedure represented 23.98 percent of all cases, while from 1998 to 2017,\nthey represented 27.75 percent, which is a significant increase (two-sided p-value = 0.004; Spaeth\net al 2018). Since public defenders and legal-aid clinics focus on criminal cases, an increase in the\nproportion of the docket would naturally result in an increase in the number of slots that they\nwould occupy. Coupled with the fact that most public defenders will only appear once (five of\nthe seventy public defenders who appeared before the Court had multiple arguments, and two of\nthose five were solely due to a second oral argument in the same case), a significant increase in the\nproportion of criminal procedure cases is very likely to have contributed to the rise in proportion\nof public defenders.\nThe next largest increase was organized interests, such as the American Civil Liberties Union\n(ACLU) or the Judicial Crisis Network. Interest groups are nothing new to the Court, with groups\nsuch as the National Association for the Advancement of Colored People (NAACP) Legal Defense\nFund consistently turning to the Court to advance their causes (Collins 2008). Additionally,\ninterest groups such as the Federalist Society and the Heritage Foundation have massive power\nin the nomination process of not only the Supreme Court but also the rest of the federal judiciary\n(Baum and Devins 2017; Kelly 2018). The American public is looking toward the Court (rather\nthan Congress) to resolve certain issues, such as abortion or gerrymandering (Tavernise 2018;\nDaley 2018). The Supreme Court has even become a campaign issue, with candidates in both\nthe Democratic and Republican Parties creating litmus tests for judges they would nominate\n(Debenedetti 2016; Wolf 2016). The increasing view of the Supreme Court as a political institution,\ncombined with the lack of productivity in Congress, might be driving the movement toward using\nthe judiciary to enact policy, which would explain the increase in interest groups.\nAcademic representation has also increased significantly, from 1.85 percent in 1990 to 5.30 percent\nin 2018, which is driven by the rise in clinical education. Passed in 2016, ABA standard 303(b)\nrequires law schools to offer substantial opportunities to participate in clinical work (Stark and\nHunt 2018). Clinical education offers law students the opportunity to get experiential training in\nlegal work by participating in real legal cases (Stark and Hunt 2018). Clinics often focus on a type of\npractice, such as housing law or family law. Appellate clinics have become quite popular and have\ntaken cases to the Supreme Court (Fisher 2013). Both Stanford Law School and the University of\nRiddled with Exclusivity | 29\n\n\x0cVirginia School of Law have had multiple arguments in front of the Roberts Court, with Stanford\xe2\x80\x99s\nclinic boasting seven different appearances.\n\nClerkship Status\nTotal Argument Slots Individual Attorneys\n\nDifference\np-value\n(Slot-Indiv)\n\nYes\n\n945 (43.49%)\n\n169 (19.29%)\n\n24.2\n\n<0.0001\n\nNo\n\n1228 (56.51%)\n\n707 (80.71%)\n\n-24.2\n\n<0.0001\n\nTotal 2173\n\n876\n\nTable 4.6.1. Members of the Supreme Court Bar in the Roberts Court by Supreme Court clerkship\n\nRelative to their share of individual lawyers in the Supreme Court Bar, attorneys with a Supreme\nClerk clerkship are overrepresented, with 43.5 percent of the oral arguments and only 19.3 percent\nof individual lawyers. A Supreme Court clerkship is one of the most sought-after and prestigious\n15\n\nlaw positions in the country. With only thirty-five to forty clerkships annually , these positions\nare extremely competitive and will all but guarantee a long and thriving legal career for those\nwho get one (Lat 2018). Given its prestige and its relation to the Supreme Court, it is no surprise\nthat former clerks enjoy success as Supreme Court litigators. Seven of the top ten most frequent\nadvocates had a clerkship.\nAs they are so prestigious, clerks in the Supreme Court tend to come from elite law schools and\nmove to elite positions afterward. Of those who argued with a clerkship, 88.7 percent came from\na Tier 1 school. However, table 4.6.2 demonstrates that even when accounting for law school, a\nclerkship is associated with far more appearances.\nLaw School\nAttended\n\nAverage # of appearances with\nclerkship\n\nAverage # of appearances without\nclerkship\n\nTier 1\n\n5.69\n\n2.20\n\nTier 2\n\n7.75\n\n1.32\n\nTier 3\n\n5.67\n\n1.16\n\n15. Each active justice (nine) gets four clerks, so there are thirty-six clerks. Each retired justice gets up\nto one clerk per term. The number of retired justices changes periodically, but there are currently\nfour. Thus in total, there are about forty Supreme Court clerkships annually.\n30 | Riddled with Exclusivity\n\n\x0cTable 4.6.2. Number of appearances by law school tier attended and clerkship status\n\nIt appears that the two most significant predictors of arguing in front of the Court are working\nat the OSG and having done a Supreme Court clerkship. However, these are not necessarily\nindependent events. Since the OSG is exclusively about Supreme Court litigation, it stands to\nreason that experience as a Supreme Court clerk would be strongly desired. The numbers bear\nthis out to a certain extent. Attorneys with a Supreme Court clerkship make up 60 percent of the\nappearances and 51 percent of all individuals from the OSG. So while someone from the OSG is\nmore likely to have a Supreme Court clerkship than an individual representing a different litigant,\nit is far from a necessity to have a Supreme Court clerkship to enter the OSG.\n\nConclusion\nThe first research question this investigation seeks to answer is, How homogenous is the Supreme\nCourt Bar? Very. Of the six qualities investigated, a clear majority of the bar shared the same\ncharacteristic on all but the completion of a judicial clerkship. The Supreme Court Bar is\ndominated by White men who attended private undergraduate schools and top law schools and\nare employed by Vault 100 firms. Even though only 19.3 percent of attorneys within the bar have\na Supreme Court clerkship, 43 percent of oral arguments were performed by a former clerk, so\nthere is still a concentration of power.\nThe second research question is, Has the Supreme Court Bar changed since 1990? Although the\nSupreme Court Bar has become more diverse than it was in 1990, it is still extremely homogenous.\nIt remains a White, male-dominated, and elite institution and is certainly not representative of the\npeople. Not only are there barriers of entry to joining the Supreme Court Bar, but even within the\nSupreme Court Bar, historically dominant and elite groups have huge advantages in appearing in\nfront of the Court.\nThe third research question is, how representative is the Supreme Court Bar? Compared to both\nthe national bar and the population at large, the Supreme Court Bar is not very representative.\nThe path to becoming a Supreme Court litigation specialist begins early in life, going back at least\nas far back as the beginning of undergraduate studies. There is a small and narrow path that\nfavors members of historically privileged communities, who flow through elite law schools and\nclerkships, both of which are less diverse than average (American Bar Association 2018; National\nAssociation of Law Placement 2010).\nThe pipeline to the Supreme Court Bar is riddled with exclusivity. Every step along the way, from\nRiddled with Exclusivity | 31\n\n\x0cattending an undergraduate institution to practicing as an attorney, acts as a barrier to entry that\nworks against women and people of color. Each new step compounds the difficulty for historically\nmarginalized communities to move on to the next step.\nThe OSG does offer hope that the tides will be changing soon. Given that the OSG often acts\nas a springboard for lucrative appellate practices, with the more diverse set of lawyers hired by\nObama, it would be expected that some will go on and continue to practice after leaving the OSG.\nFor example, five women who have recently left the OSG have gone into private appellate practice\n(Alder 2018). These women, along with the attorneys of color, will be able to use the advantages of\nbeing a former member of the OSG and continue arguing at high rates, which would be expected\nto further diversify the Supreme Court Bar.\nThe impacts of the homogeneity of the Supreme Court Bar go beyond just symbolic representation\nand the lack of role models. Supreme Court specialists are significantly more likely to win their\ncases than nonspecialists (Lazarus 2008). Since descriptive representation can translate into\nsubstantive representation, the demographics of the Supreme Court Bar could easily translate into\nthe substance of the types of cases they argue.\nFor example, female judges are more likely to recognize types of gender bias than male judges\n(Martin et al. 2002). Using that same logic, perhaps male Supreme Court specialists will be less\nlikely to believe the merits of a gender discrimination claim. Since men are the majority of\nSupreme Court specialists, that claim has a greater chance of being brought by a nonspecialist\n(and therefore having less of a chance of succeeding, regardless of merit) if it gets brought at all.\nThus substantive areas of law can be greatly affected by the diversity reflected within the Supreme\nCourt Bar.\nAdditionally, the direction of the Supreme Court\xe2\x80\x99s docket can be influenced by a small number of\npeople, many of whom have strong ideological leanings. For example, Paul Clement, who appeared\nthe most of anyone in the study period, is very public about his conservative ideology and is\nan active member of the Federalist Society. There is a plethora of discourse, both public and\n16\n\nacademic, about how the Court has been steadily shifting to the right.\n\nThese pieces usually\n\nfocus on the ideology of the justices\xe2\x80\x94especially after the relatively moderate Justice Kennedy\nwas replaced with the very conservative Justice Kavanaugh. However, because of how familiar\nconservative advocates like Paul Clement and Theodore Olsen (thirty-eight appearances) are, they\nare able to get more of their cases docketed. The Supreme Court gets around eight thousand\npetitions each year and grants around eighty of them (Supreme Court 2019). So people like\nClement and Olsen who get multiple cases docketed each year have the ability to actively shape\n\n16. Examples of public discourse include Bazelon (2018) and Sherman (2018). An academic example of\nsuch discourse is Perkins et al. (2007).\n32 | Riddled with Exclusivity\n\n\x0cthe agenda of the Court. Further research should examine the ideologies of all the advocates\nbefore the Court to look for possible effects.\nFurther research could also look into the litigants and how they influence the demographics of the\nbar. This analysis focuses heavily on the \xe2\x80\x9csupply\xe2\x80\x9d side of the bar\xe2\x80\x94that is, factors that influence an\nindividual\xe2\x80\x99s ability to gain entrance. But the supply side is not the whole picture; the demand side\ncould also contain key insight into how people get into the Supreme Court Bar. Since everyone\nin the Supreme Court Bar is hired by a client, the criteria for entry are determined by a market.\nFor example, research could look into whether certain types of litigants prefer certain types of\nattorneys and how that might influence who is desirable in the market. If clients\xe2\x80\x99 demand about\nwho they want to represent them in the Supreme Court skews toward people with the traditionally\nsought after elite credentials (top-tier law school, Supreme Court Clerkship, etc.), it would help\nclarify the path to the bar and strategies to diversify the bar moving forward.\n\nReferences\nAmerican Bar Association. 2013. Enrollment and Degrees Awarded. http://www.americanbar.org/\ncontent/dam/aba/administrative/legal_education_and_admissions_to_the_bar/statistics/\nenrollment_degrees_awarded.authcheckdam.pdf (\xe2\x86\xb5 Return)\nAmerican Bar Association. 2017. A Current Glance At Women in the Law. 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(\xe2\x86\xb5 Return)\nPitkin, Hanna Fenichel. 1967. The Concept of Representation. University of California Press. (\xe2\x86\xb5\nReturn)\nPlainview, Daniel. 2017. Do Underrepresented Minority (URM) Applicants Have a Law School\nAdmissions\n\nAdvantage?\n\n38 | Riddled with Exclusivity\n\nPowerscore,\n\nMarch\n\n7,\n\nhttp://blog.powerscore.com/lsat/do-\n\n\x0cunderrepresented-minority-urm-applicants-have-a-law-school-admissions-advantage\n\n(\xe2\x86\xb5\n\nReturn)\nRandall, Vernellia. 2006. \xe2\x80\x9cThe Misuse Of The Lsat: Discrimination Against Blacks And Other\nMinorities In Law School Admissions.\xe2\x80\x9d St. John\xe2\x80\x99s Law Review, vol. 80, no. 1, pp. 107\xe2\x80\x93143,145\xe2\x80\x93151. (\xe2\x86\xb5\nReturn 1) (\xe2\x86\xb5 Return 2)\nRobinson, Kimberly. 2016. \xe2\x80\x9cSupreme Court Bar Admission Has Its Perks.\xe2\x80\x9d Big Law Business. May 16,\nhttp://biglawbusiness.com/supreme-court-bar-admission-has-its-perks/ (\xe2\x86\xb5 Return)\nRobinson, Kimberly Strawbridge, and Jordan S. Rubin. 2019. \xe2\x80\x9cWomen Argue Only a Fraction of\nSupreme Court Cases (3).\xe2\x80\x9d Bloomberg BNA News, January 30, http://news.bloomberglaw.com/\nus-law-week/women-argue-only-a-fraction-of-supreme-courtcases?f bclid=IwAR3PBu5vUTYx9VTi4g5HOdEVed2A5AMsCCQaDlOaWF8gBk72WltLGIXY3Hc (\xe2\x86\xb5\nReturn)\nSapiro, Virginia. 1981. Research Frontier Essay: \xe2\x80\x9cWhen Are Interests Interesting? The Problem of\nPolitical Representation of Women\xe2\x80\x9d The American Political Science Review (1927), vol. 75, no. 3, p.\n701. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nSarver, Tammy, et al. 2008. \xe2\x80\x9cThe ATTORNEY GENDER GAP in U.S. Supreme Court Litigation.\xe2\x80\x9d\nJudicature, vol. 91, no. 5, pp. 238\xe2\x80\x93250. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3)\nScherer, Nancy, and Brett Curry. 2010. \xe2\x80\x9cDoes Descriptive Race Representation Enhance\nInstitutional Legitimacy? The Case of the U.S. Courts.\xe2\x80\x9d The Journal of Politics, vol. 72, no. 1, pp.\n90\xe2\x80\x93104. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nSekaquaptewa, Denise. 2011. \xe2\x80\x9cDiscounting Their Own Success: A Case for the Role of Implicit\nStereotypic Attribution Bias in Women\xe2\x80\x99s STEM Outcomes.\xe2\x80\x9d Psychological Inquiry, vol. 22, no. 4,\npp. 291\xe2\x80\x93295. (\xe2\x86\xb5 Return)\nSherman, Mark. 2018. \xe2\x80\x9cSupreme Court Moves Right, but How Far, How Fast?\xe2\x80\x9d Chicago Tribune,\nChicago Tribune, October 7, http://www.chicagotribune.com/news/nationworld/politics/ctsupreme-court-future-20181007-story.html (\xe2\x86\xb5 Return)\nSpaeth, Howard J., Lee Epstein, Andrew D. Martin, Jeffrey A. Segal, Theodore J. Ruger, and Sara\nC.\n\nBenesh.\n\n2018.\n\n2018\n\nSupreme\n\nCourt\n\nDatabase,\n\nVersion\n\n2018\n\nRelease\n\n01.\n\nhttp://Supremecourtdatabase.org (\xe2\x86\xb5 Return)\nSpohn, Cassia, et al. 1985. \xe2\x80\x9cWomen Defendants in Court: The Interaction between Sex and Race in\nConvicting and Sentencing.\xe2\x80\x9d Social Science Quarterly, vol. 66, no. 1, pp. 178\xe2\x80\x93185. (\xe2\x86\xb5 Return)\nSolberg, Rorie Spill, and Jennifer Segal Diascro. 2018. \xe2\x80\x9cA Retrospective on Obama\xe2\x80\x99s Judges:\nRiddled with Exclusivity | 39\n\n\x0cDiversity, Intersectionality, and Symbolic Representation.\xe2\x80\x9d Politics, Groups, and Identities, May\n28, pp. 1\xe2\x80\x9317., doi:10.1080/21565503.2018.1478736. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3)\nStark, Debra Pogrund and Hunt, Christine, 2018. \xe2\x80\x9cRe-Imagining Law School Clinics: Leveraging\nResources to Do More, for More, Under a Hybrid Model\xe2\x80\x9d April 18. Oklahoma City University Law\nReview, Forthcoming. https://ssrn.com/abstract=3164957 (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nStrauss, Valerie. 2018. \xe2\x80\x9cThe \xe2\x80\x98Cloistered\xe2\x80\x99 Harvard-Yale Law Monopoly on the Supreme Court.\xe2\x80\x9d\nThe Washington Post, WP Company, July 10. http://www.washingtonpost.com/news/answersheet/wp/2018/07/10/the-cloistered-harvard-yale-law-monopoly-on-the-supremecourt/?utm_term=.68f43b49d262 (\xe2\x86\xb5 Return)\nSupreme\n\nCourt\n\n2018.\n\nINSTRUCTIONS\n\nFOR\n\nADMISSION\n\nTO\n\nTHE\n\nBAR.\n\nhttp://www.supremecourt.gov/bar/barinstructions.pdf (\xe2\x86\xb5 Return)\nSupreme Court 2019 \xe2\x80\x9cThe Justices\xe2\x80\x99 Caseload.\xe2\x80\x9d Home\xe2\x80\x94Supreme Court of the United States.\nhttp://www.supremecourt.gov/about/justicecaseload.aspx (inactive link as of 5/21/2020) (\xe2\x86\xb5\nReturn)\nTate, Katherine. 2003. Black Faces in the Mirror: African Americans and Their Representatives in\nthe U.S. Congress. Princeton University Press. (\xe2\x86\xb5 Return)\nTavernise, Sabrina. 2018. \xe2\x80\x9cThe Future of Abortion Under a New Supreme Court? Look to Arkansas.\xe2\x80\x9d\nThe New York Times, The New York Times, September 7, http://www.nytimes.com/2018/09/\n07/us/abortion-supreme-court-arkansas.html (\xe2\x86\xb5 Return)\nTaylor, Aaron N. 2015. \xe2\x80\x9cDiversity as a Law School Survival Strategy.\xe2\x80\x9d Saint Louis University Law\nJournal, vol. 59, no. 2, pp. 321\xe2\x80\x93383. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nTeger, Stuart H., and Douglas Kosinski. 1980. \xe2\x80\x9cThe Cue Theory of Supreme Court Certiorari\nJurisdiction: A Reconsideration.\xe2\x80\x9d The Journal of Politics, vol. 42, no. 3, pp. 834\xe2\x80\x93846. JSTOR,\nhttp://www.jstor.org/stable/2130555. (\xe2\x86\xb5 Return)\nUS Census Bureau. 1901. 1901 Census Report. http://www2.census.gov/prod2/statcomp/\ndocuments/1901-02.pdf (\xe2\x86\xb5 Return)\nVault. 2018. \xe2\x80\x9c100 Most Prestigious Law Firms.\xe2\x80\x9d Vault, Vault, http://www.vault.com/companyrankings/law/vault-law-100 (\xe2\x86\xb5 Return)\nWalker, Thomas G., and Deborah J. Barrow. 1985. \xe2\x80\x9cThe Diversification of the Federal Bench: Policy\nand Process Ramifications.\xe2\x80\x9d The Journal of Politics, vol. 47, no. 2, pp. 596\xe2\x80\x93617. (\xe2\x86\xb5 Return)\nWarren, Charles. 1911. A History of the American Bar. Cambridge University Press. (\xe2\x86\xb5 Return)\n40 | Riddled with Exclusivity\n\n\x0cWillis, Leonard. 2017. Myra Bradwell: The First Woman Admitted to the Illinois Bar. American\nBar Association, October 31, http://www.americanbar.org/groups/litigation/committees/\nminority-trial-lawyer/practice/2017/myra-bradwell-first-woman-admitted-to-illinoisbar.html (\xe2\x86\xb5 Return)\nWolf, Richard. 2016. \xe2\x80\x9cTrump\xe2\x80\x99s 21 Potential Court Nominees Are Overwhelmingly White, Male\nand from Red States.\xe2\x80\x9d USA Today, Gannett Satellite Information Network, December 2,\nhttp://www.usatoday.com/story/news/politics/elections/2016/12/01/donald-trumpsupreme-court-21-nominees-list-nomination/93964888/ (\xe2\x86\xb5 Return)\nWong, Alia. 2018. \xe2\x80\x9cAt Private Colleges, Students Pay for Prestige.\xe2\x80\x9d The Atlantic, Atlantic Media\nCompany, September 21, http://www.theatlantic.com/education/archive/2018/09/americaprivate-college-tuition/569812/ (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nWord, Zanna, & Cooper. 1974. The nonverbal mediation of self-fulfilling prophecies in interracial\ninteraction. Journal of Experimental Social Psychology, 10(2), 109\xe2\x80\x93120. (\xe2\x86\xb5 Return)\nZarya, Valentina. 2018. \xe2\x80\x9cThe Share of Female CEOs in the Fortune 500 Dropped by 25% in 2018.\xe2\x80\x9d\nFortune, Fortune, May 21, http://fortune.com/2018/05/21/women-fortune-500-2018/ (\xe2\x86\xb5\nReturn)\n\nClass Activity\n1. What would be some viable strategies for increasing the diversity of the Supreme Court Bar?\n2. If you are a client seeking to appeal to the Supreme Court, what qualifications would you look\nfor in a potential attorney?\n\nRiddled with Exclusivity | 41\n\n\x0c2. Examining Diversity, Inclusion, and\nEquity in the Legal Profession\nAn Analysis of Career Tracks and Representation\nSCOTT HOFER AND SUSAN ACHURY\n\nEntering the legal profession in the United States has been viewed by many as a ticket to financial\nstability and a fulfilling career. Unfortunately, for most of American history, the profession, either\nthrough formal or informal barriers, has been largely off-limits to everyone except White men\n(Latourette 2004; Long 2016). While recent efforts to diversify the profession have successfully\nincreased the presence of historically underrepresented groups, career outcome disparities take\na long time to alleviate, and the legal profession is still significantly whiter and more male\ndominated than the American population as a whole (Long 2016). Data collection efforts have\nrevealed some of the systemic obstacles for women and people of color (POC) to thrive in the\nlegal profession; however, these analyses often explore different sectors of the legal profession\nseparately\xe2\x80\x94representation at private practices and on the bench. These analyses also oversimplify\nthe concept of diversity, and few works have focused on assessing levels of inclusiveness and\n1\n\nequity at all. Identifying and measuring gaps in the participation of marginalized groups in the\nlegal profession is key to designing and implementing policies that effectively shrink the gap.\nIn this chapter, we compare the gender and racial gaps in representation for private-practice\ncareers versus careers in the federal courts. We advance the literature by examining these trends\ntogether rather than separately, which allows us to assess differences in career tracks. The\ndiversity, inclusion, and equity framework helps us further explore diversification efforts,\nuncovering generalizable trends for women and POC. In particular, we highlight how this\nframework allows us to identify key obstacles to an equitable justice system. We compare the\ndifferences in representation of women and racial minorities in private practice and on the federal\nbench. We determine that diversifying the bench has proven more challenging. Overall, we point\nto the intervention of political actors in the nomination process and the effect of partisanship\nand ideological preference toward diversification might cause prolonged disparities in the court\nsystem.\n\n1. See Sommerland (2014) in England using the DIE framework to assess the use of merit. In the US,\nsee, e.g., Pearce, Wald, and Ballakrishnen (2014); Rhode and Ricca (2014). Notice all these works are\nfocused exclusively on private practice.\n42 | Examining Diversity, Inclusion, and Equity in the Legal\nProfession\n\n\x0cResearch Questions\nBased on the Diversity, Inclusion, and Equity Framework, we compare the representation gap of\nwomen and POC in private practice with that on the federal bench. We offer a measurement of the\nunderrepresentation of women and racial minorities in the legal profession and point out paths\nfor future research:\n1. How diverse are the federal bench and private practice? Using diversification in law schools\nas a benchmark, we identify the gap in representation of women and POC within the entrylevel positions.\n2. How inclusive are the federal bench and private practice? Given the lack of policies in law\nschools promoting equal access to different career paths, we measure the gap in\nadvancement for women and POC from entry-level positions to the highest positions within\ntheir career tracks.\n3. How equitable are the federal bench and private practice?\n\nLiterature Review\nTo address our research questions with adequate appreciation of the obstacles facing\nunderrepresented groups pursuing a legal career, we start by examining the Diversity, Inclusion,\nand Equity Framework (hereafter, DIE framework). This conceptual framework is then applied to\npast diversification trends, historic pioneers, and the early days of the profession in America. Next,\nwe identify the extensive efforts to diversify the profession with a focus on law school admissions.\nFinally, we discuss the most common paths to a legal career and utilize the DIE framework to\npredict legal career outcomes.\n\nThe Importance of a Framework: Assessing Diversity, Inclusion,\nand Equity\nThe study of efforts to diversify the legal profession will necessitate a systematic method of\nanalysis. Otherwise, anecdotes, platitudes, and rare examples may skew our perception of\nprogress. While diversity itself is a commonly used term, its use often refers to multiple distinct\nconcepts. To better address and assess efforts to add descriptive representation to the legal\nExamining Diversity, Inclusion, and Equity in the Legal Profession | 43\n\n\x0cprofession, we must start by delineating terms. We focus on three essential concepts in our\nframework: diversity, inclusion, and equity.\nDiversity describes the entrance of women, racial minorities, and any other underrepresented\ndemographic into the profession. It means that a wide variety of socially defined groups,\nperspectives, and experiences are involved. Diversity is the lowest standard for representation\nof marginalized groups because it is limited only to their presence. It marks the first step of\nentrance into the equation but little else. Although promoting diversity has improved access\nfor underrepresented groups, this alone cannot correct disparities at the highest levels of the\nprofession; additional corrective measures are necessary to enhance inclusion and equity. It is\nessential to provide conditions for people from diverse backgrounds to thrive in the profession\nto address disparities at the highest levels. Inclusion is the intermediate corrective action, which\nrecognizes the need to construct an environment of support for underrepresented groups. While\ndiversity opens the door for underrepresented groups within the profession, there are still\nsignificant barriers to success. Inclusion is a commitment to recognizing existing biases and\nmaking efforts to confront them. Implicit biases in the profession continue after employment\nbegins, with minority associates being assigned lower-profile cases, given fewer support\nresources, and being less likely to make networking connections (Negowetti 2015). Without active\nefforts to promote inclusivity and understand the contributions to the profession among\nminoritized and marginalized groups, the status quo has been to discount their efforts when it\ncomes time for promotions or advancement (Obasogie 2017).\nFinally, the purpose of diversification and inclusion efforts is to gain equity in the profession.\nEquity is when the distribution of power, benefits, and burdens is not skewed by demographic\nfactors, such as race and gender. When racial, gender, and demographic characteristics no longer\nskew the likelihood of reaching the pinnacles of success in a legal career, the profession can\nbe called equitable. This represents a new status quo, in which discriminatory practices are so\nisolated, sporadic, and rare that they do not influence the overall balance of power. In an equitable\nprofession, all socially defined groups are included proportionally to the population at all levels of\npower. The DIE framework advances our understanding of diversification efforts by distinguishing\nthese higher and lower forms of descriptive representation. Without these distinctions, it is easy\nto conflate diversity in the ranks of law school students as equally crucial to equity at the highest\nlevels of the legal profession. Now that we have identified a suitable framework for discussion, we\nwill revisit some historical trends in diversification efforts.\n\n44 | Examining Diversity, Inclusion, and Equity in the Legal Profession\n\n\x0cHistoric Diversity Trends in the American Legal Profession\nLike much of American society, the legal profession, with few exceptions, was strictly segregated\nuntil the 1960s; this initial disparity has never been fully corrected (Moore 2007). During the early\nnineteenth century, the practice of law was a trade similar to most others. Rather than attending\nlaw schools, lawyers were taught through apprenticeships (Carp et al. 2019; Moliterno 1991; Gawalt\n1973). As a result, many lawyers attained their jobs by following in the footsteps of their fathers.\nOnce law schools replaced apprenticeships, they typically denied admittance to any applicant who\nwas not White and male, effectively refusing diversity at its most fundamental level (Barnes 1970;\nFossum 1981; Kidder 2003).\nThe story of racial diversity in the legal profession began in 1845 when Macon Allen became the\nfirst non-White lawyer licensed to practice in the United States. His license to practice law marked\na major milestone at a time when slavery was still legal in the United States and racialized justice\nwas the norm, not the exception (Smith 1993). Although formal barriers to the representation of\nracial minorities in the profession were technically broken, the impact was relatively minor, and\nthe legal profession remains one of the whitest industries in America (Rhode 2013; Rhode and\nRicca 2014; Wald 2011). Despite policies meant to promote diversity by hiring racial minorities, a\npattern of higher attrition rates among legal professionals from underrepresented backgrounds\nillustrates a lack of an inclusive environment. Even overall racial diversity levels are striking low.\nAs of 2017, roughly 13 percent of lawyers in the United States are not White; however, non-White\nresidents of the United States make up nearly 40 percent of the population (Laffey and Ng 2018).\nBlack Americans make up 13.3 percent of the population but only 5 percent of lawyers; Hispanic\nand Latino Americans make up 17.8 percent of the population but only 5 percent of the active\nattorneys in the United States (Laffey and Ng 2018). Although efforts have been made that did\nincrease access to the profession, these disparities illustrate the barriers facing racial minorities\nin the legal profession (Laffey and Ng 2018).\nInclusion of women in the legal profession began when Arabella Mansfield was admitted to the\nIowa Bar Association in 1869. Unfortunately, she was never given the opportunity to practice\nlaw (Chafa 2020). This trend of purely symbolic diversity continued in 1870, as Ada Kepley was\nadmitted to law school but repeatedly denied in her attempts to practice law (Gorecki 1990).\nWomen were systematically excluded from the profession by informal admittance processes in\nlaw schools and bar associations. Despite minuscule diversity levels, women still experienced\ndiscrimination in employment that effectively scuttled their hopes for successful careers\n(Krakauer and Chen 2003; Drachman 1989). Female lawyers began to make very modest inroads in\ndiversity starting around the time of women\xe2\x80\x99s suffrage (Bowman 2009). The first women admitted\nto the American Bar Association joined in 1918. However, female lawyers were an exception in the\nfield of law even half a century later. By 1970, only 4 percent of America\xe2\x80\x99s lawyers were female,\nExamining Diversity, Inclusion, and Equity in the Legal Profession | 45\n\n\x0cand most of them were only in entry-level positions (Bowman 2009). Most progress in diversity\nlevels for women has happened in the last fifty years, as women went from about 4 percent of\nthe legal profession to 35 percent today (Bowman 2009; Laffey and Ng 2018). This was primarily\nthe result of pioneering women who helped foster an environment of inclusion through femaleoriented networking and programs to address the frequently hostile conditions (Kay and Wallace\n2009; Kay and Gorman 2008).\nDiversity progress has been significant and time dependent; however, inclusion is still lacking.\n2\n\nWomen make up almost 50 percent of summer associates in the United States today but only\n18 to 20 percent of lawyers in the highest echelons of legal practices\xe2\x80\x94partners (Laffey and\nNg 2018). There are several reasons for the continued lack of inclusion in the legal profession.\nOne of the biggest is the exclusivity of social networks within the profession (Headworth et al.\n2016; Fernandez and Fernandez-Mateo 2006; Rider et al. 2016). Success in law careers requires\nknowing the trade but also knowing some key actors with connections to lucrative jobs. The\nlegal profession\xe2\x80\x99s origins as an exclusive White and male industry in the United States created\na homogenous network that has helped maintain the status quo through informal connections\nand implicit biases (Fernandez and Fernandez-Mateo 2006; Rider et al. 2016). Students at top law\nschools often benefit equally from the high-quality teaching at these institutions and the social\nnetworks created within the law school. The legal profession requires both hard skills\xe2\x80\x94knowledge\nof the law\xe2\x80\x94and soft skills, such as socializing and developing a clientele. Social networks are\none way for employers to vet prospective employees for the necessary soft skills (Fernandez and\nFernandez-Mateo 2006). Existing disparities mean those with the most power to hire or fire are\npredominately White and male. Ultimately, these exclusive trends are a significant factor in the\nhigher rates of attrition for women and racial minorities in the profession (Rider et al. 2016).\nIssues associated with homogeneity in the legal profession have been mainly addressed by looking\nat admissions processes to top law schools in the United States. America\xe2\x80\x99s school districts remain\nhighly racially segregated, and schools that primarily serve non-White communities are frequently\nunderfunded (Rothstein 2015). As a result, students from predominantly non-White schools do\nnot receive the same quality of primary and secondary school education and may settle for\na lesser undergraduate education. The cascading effect occurs as students from lower-ranked\nundergraduate institutions are less appealing to the top law programs (Dowd 2015). Racial wealth\ndisparity is further exacerbated by the high cost to attend law schools, which may serve as an\ninsurmountable barrier for those at or below middle-class incomes (Harper and Griffin 2010).\nSocietal-level disparities tend to impact all levels of education, but efforts to improve diversity in\n\n2. See Sommerland (2014) in England using the DIE framework to assess the use of merit. In the US,\nsee, e.g., Pearce, Wald, and Ballakrishnen (2014); Rhode and Ricca (2014). Notice all these works are\nfocused exclusively on private practice.\n46 | Examining Diversity, Inclusion, and Equity in the Legal Profession\n\n\x0cthe profession tend to converge on the admissions process and financial aid resources available\nto law school applicants from underrepresented backgrounds (Jewel 2008; Rothstein and Yoon\n2008; Kennedy 2019). By the 1970s, America\xe2\x80\x99s top law schools began to actively promote diversity\nthrough different programs, including scholarships and reserving spots expressly to encourage\ngender and racial representation (Kennedy 2019; Jewel 2008). This marked the first step toward\ndramatic change, but it has been quite limited. Without thoroughly examining diversification and\ninclusiveness as different processes, one may not realize how progress with diversification still\nmasks the disproportionate likelihood of female lawyers to hold low-seniority positions and less\npower in the profession (Kay and Gorman 2008).\n\nAddressing the Diversity Problem: Affirmative Action and\nBeyond\nStarting with Sweatt v. Painter 339 U.S. 629 (1950), which was cited in the influential Brown v.\nBoard of Education 347 U.S. 483 (1954), the courts began to side with underrepresented minority\ngroups who sought admissions to previously segregated schools (Kidder 2003). In the Sweatt case,\nTexas\xe2\x80\x99s system of supposedly \xe2\x80\x9cseparate but equal\xe2\x80\x9d law schools for black and White applicants\nwas ruled unconstitutional. While Heman Marion Sweatt was begrudgingly admitted into the\nUniversity of Texas Law School, by the mid-1960s civil rights legislation promoted efforts to either\n\xe2\x80\x9cboost\xe2\x80\x9d minority applicants or reserve spots in a \xe2\x80\x9cracetrack\xe2\x80\x9d system (Rothstein and Yoon 2008). In\nthe years between Sweatt and the Civil Rights Act of 1964, the admissions process for universities,\nincluding law schools, went from efforts to discourage non-White applicants to a system that\npromoted diversity at some level (Sander 2004; Kennedy 2019).\nAffirmative action programs faced significant backlash and were frequently undermined by\nuniversity leadership; however, there is extensive evidence that these policies did promote\ndiversity in legal training (Sander 2004; Rothstein and Yoon 2008). Legal challenges to the system\nof boosting or reserving seats for minority applicants occurred frequently, and over time, some\n3\n\nambitious programs were limited by legal actions. The US Supreme Court struck down racial\nquota systems; however, it refused to strike down nonquota systems that sought to add diversity.\nSome universities incorporated nonracial ways to promote racial diversity by offering generous\n\n3. Some famous cases dealing with these questions include Regents of Univ. of California v. Bakke, 438\nUS 265 (1978); Grutter v. Bollinger, 539 US 306 (2003); Hopwood v. University of Texas, 78 F.3d 932\n(5th Cir. 1996); Podberesky v. Kirwan, 956 F.2d 52 (4th Cir. 1992); Johnson v. Board of Regents of\nGeorgia 263 F.3d 1234 (11th Cir. 2001); and Gratz v. Bollinger 539 US 244 (2003).\nExamining Diversity, Inclusion, and Equity in the Legal Profession | 47\n\n\x0cfinancial aid provisions for low-income and disproportionately non-White applicants (Sander\n2004; Kennedy 2019).\nThere is strong evidence that these policies have promoted diversity in law schools. Rothstein and\nYoon (2008) find that without affirmative action policies, nearly 60 percent of all black law school\nstudents would not have attended law school at all; meanwhile, at the top-tier law schools, there\nwould be a nearly 90 percent decline in racial representation of black students if admissions were\nrace blind (Kennedy 2019). Even after admission, informal barriers in the profession frequently\nlimit future employment prospects as law students plan a career.\n\nLaw Career Tracks: Private Practice and Public Interest\nWhile access is a necessary step toward a representative legal profession, granting such access\nto women and POC has been insufficient to achieve equity. Within the career tracks, essential\ndifferences between private practice or public interest careers have gone unexamined. As law\nstudents work toward graduation, they generally must choose a career path defined by this\n4\n\ndichotomy. These two career tracks have a great degree of variation in working conditions, pay,\nand promotion opportunities within the chosen track (Sander and Bambauer 2012). Still, some\ngeneralizations can be made. Typically, those who choose to work in private practice start as\nassociates (entry-level positions) and eventually begin to own a part of their firm and be paid\n5\n\nin profits as well as salary. Reaching the equity partner level is no small accomplishment and\nrepresents one of the highest positions in private practice.\nLaw students who pursue the public interest path may take on entry-level positions as public\ndefenders for the indigent; however, this position usually pays significantly less than entry-level\npositions at private firms (Bacak et al. 2020). The highest levels on the public interest career\npath are generally becoming an attorney general, state supreme court justice, or federal judge.\nThese positions pay well but are especially appealing for the public esteem and security they\nprovide. These careers are the result of a lifetime of public service and come with high opportunity\ncosts. Advancing to appointment as a judge in any context is usually the high point in a public\n\n4. While there are some examples of federal appointments of judges coming from private practices,\nthis is not the most common path. Despite being an informal and nonexclusive process, there is a\nstrong norm that law school students should choose a trajectory for their career based on one of\nthese two tracks.\n5. It should be noted that this career path appears to be rarer and rarer as the legal business norm\nmoves away from this type of ownership model (Randazzo 2019).\n48 | Examining Diversity, Inclusion, and Equity in the Legal Profession\n\n\x0cinterest career. Efforts to diversify law school cohorts improved access to law schools; however,\ncorresponding gains in the profession have been slow and not always incremental in both career\npaths.\nTable 1 presents the participation percentage of women, POC, and women of color in the private\nsector and the federal bench compared to the US population and access and success in legal\neducation in 2019. Data on the participation of women and POC in private practice is based on the\nannual report of the National Association for Law Placement (NALP) showing that representation\nof people of color in associate positions in private practices has continued to increase since 2010\n(from 19.53 percent to 25.44 percent) following widespread layoffs in 2009. After a decade, the\nadverse effects of the 2008 economic crisis on diversification efforts have finally been reversed\n(NALP 2019). The percentage of African American female associates remains barely below the\n6\n\n2009 figure. The 2008 financial crisis disproportionately hurt women and people of color in the\nprofession, which illustrates that despite gains in diversity, there has been little progress made\ntoward true equity in the profession. Efforts to diversify ranks have successfully added voices\nof color and women to entry-level positions, but once in these positions, there is often limited\nsupport and limited upward mobility (Kay et al. 2016; Payne-Pikus et al. 2010).\n\nBenchmark\nSupply\n\nPrivate\npractice\n\nWomen\n(%)\n\nPOC\n(%)\n\nWomen of color\n(%)\n\nUS population*\n\n50.75\n\n31.3\n\n18.8\n\nLaw school enrollment\n\n54\n\n30.1\n\n18.8\n\nLaw graduates**\n\n52.4\n\n31\n\n18\n\n46.77\n\n25.44\n\n14.48\n\n24.17\n\n9.55\n\n3.45\n\n20.72\n\n15.92\n\n5.49\n\n5.49\n\n0.04\n\n0.90\n\n27.82\n\n13.91\n\n6.95\n\nEntry-point at private practice (associate)***\nHighest-point at private practice (equity\npartner)***\nFederal judiciary at the lowest point (district\ncourts)****\n\nFederal\nbench\n\nFederal judiciary at the middle point (circuit\ncourts)***\nFederal judiciary at the highest point (Supreme\nCourt)***\n\nTable 1. Representation of women and POC in private practice and the federal bench (2019)\n\n6. One notable area of improvement in diversity since 2009 has been that LGBT lawyers have\ncontinuously risen and are the marginalized group with the highest representation among the\nsummer associate ranks, where nearly 7 percent of all summer associates were reported as LGBT\n(NALP 2019).\nExamining Diversity, Inclusion, and Equity in the Legal Profession | 49\n\n\x0c*Data from the US Census Bureu, Annual Estimates of the Resident Population by Sex, Race, and Hispanic Origin for\nthe United States: April 1, 2010 to July 1, 2019.\n** Data from ABA Standard 509 Information Report Spreadsheets for 2019.\n***Data from National Association for Law Placement, Report on Diversity in the US, 2019.\n****Data from the Federal Judicial Center.\n\nWhile trends in private practice are best viewed in the context of business, the diversification\nof the federal bench follows political procedures. The politics of promoting diversity on the\nbench may present greater barriers for women and POC. The impact of a single president on\nthe composition of the bench can significantly increase representation. For example, the Obama\nadministration made efforts to improve diversity; however, active steps to diversify the bench did\nnot continue under the Trump administration. By July 2020, Trump had appointed a quarter of all\nthe active federal judges; 25 percent were female, compared to 45 percent of Obama appointees.\nHowever, Trump appointed women at a rate similar to previous Republican presidents, drawing\ncomparisons to the G. H. W. Bush administration (Jeknic et al., this volume). Meanwhile, only 18\npercent of Trump\xe2\x80\x99s appointments were non-White, compared to 36 percent of Obama appointees\n(Gramlich 2021). Trump did not share the same zeal for appointing diverse candidates to the\nfederal bench and failed to increase diversity in the judiciary significantly; however, due to the\npreexisting lack of diversity in race and gender, Trump\xe2\x80\x99s appointments have mostly just maintained\nthe status quo in terms of the proportion of women and POC (see Jeknic et al., this volume).\n\nData and Methods\nWe use data from the US Census Bureau, American Bar Association, National Association for Law\nPlacement, and the Federal Judicial Center to examine representation in entry-level positions all\nthe way to the highest level in private practice, to compare it with the federal judiciary. We merge\ndata as percentages to account for the differences in the size of the private practice and the\nfederal judiciary and within each of these career paths.\nUsing the DIE framework to analyze gender and racial participation patterns in private practice,\nwe analyze two categories: associate and equity partner. Diversity in private practice is measured\nas racial and gender representation as associates, the lowest ranks within the firms. For private\npractices, the hierarchy is designed for upward progression, so representation at the entry point\n(associate) signifies diversity, and inclusiveness is signified by the percentage of underrepresented\ngroups moving up the hierarchy to equity partners. By analyzing differences between associates\n50 | Examining Diversity, Inclusion, and Equity in the Legal Profession\n\n\x0cand equity partners, we can see the representation of women and POC in multiple stages of their\ncareers.\nIn the federal judiciary we look into three levels: the district judges, the circuit, and the US\nSupreme Court. The implementation of the DIE framework is challenging in the judiciary, and we\nwere only able to partially implement it due to data limitations. Diversity on the federal bench is\ndifficult to identify, as judgeships are not considered entry-level positions for those working in the\npublic sector. In this career track, positions such as clerks and public prosecutors, among others,\n7\n\nare considered the starting point for progression into judgeships. Measurements of diversity in\npublic service should be assessed by looking at racial and gender demographics in the career\nchoices of those aiming to get on the bench. Data limitations make it impossible to analyze the\nearly career choices of those aiming to access the federal bench. Federal judgeships, regardless of\nthe hierarchy, are a terminal stage in a legal career, a fact reinforced by the life tenure for all levels\nand little upward mobility (Epstein et al. 2013). Thus racial and gender diversification of the bench\nis an indicator of inclusiveness, as it means that women and POC surmounted the structural biases\nagainst them and achieved a position of influence in the policy-making process.\nThe comparison between representation of women and POC in private practice and the federal\njudiciary uses diversity at law schools as a benchmark. Law schools determine the supply of\ndiverse lawyers and to that extent their potential for a successful career. Admission marks the\nentrance into the legal profession; however, obstacles still await students from minoritized\nbackgrounds. Improved access to legal training dramatically improved the diversity numbers at\nlaw schools, yet inclusion\xe2\x80\x94the actions to support underrepresented students\xe2\x80\x94is still lacking.\nStudies illustrate that focusing on law firm practice and partnership models to respond to\nadvancement, attrition, and lack of re-engagement effectively achieves greater representation,\nparticularly of women. An example of this is reassessing the competencies necessary to the\nsuccess of law firms to value the work typically done by women (Seuffert et al. 2018). Frequently\nthe labor of underrepresented groups is underappreciated or overlooked; meanwhile, this matter\nis made worse when combined with a lack of support or networking in the profession. Our analysis\nidentifies inclusion as the percentage of racial minorities and women who progress in the legal\nprofession beyond law school admissions to successful promotion in their chosen career track.\nFor private practice, this means moving from an associate to a partner; meanwhile, in the public\ninterest track, this means any position as a judge.\nA comprehensive analysis of the cascade effect of exclusion and the glass ceiling, or the obstacles\n\n7. This varies by president and level of court (Epstein et al. 2013). However, in the aggregate, it is\npossible to identify the patterns in terms of elite law school, clerking for a federal judge, and serving\nas a state judge or US attorney (McMillion 2014). Career changes from private practices to judgeship\nare often reserved to those at top-tier law firms.\nExamining Diversity, Inclusion, and Equity in the Legal Profession | 51\n\n\x0cfor advancement in legal careers, is needed to identify why the achievements for women and\nPOC follow different patterns. This is an area of research that remains understudied and\nundertheorized. Pipeline explanations of gender and racial diversification of the legal profession\nhave previously focused on the creation of a pool of \xe2\x80\x9cqualified\xe2\x80\x9d jurists (Cook 1984; Martin 1987).\nThis approach has been challenged by empirical studies showing that access to legal education\ndoes not ensure similar gains in the participation of women and POC in the legal profession.\nFor minority groups in the profession, equity would be an equal proportion of currently\nunderrepresented groups at all positions of power in the profession. Since legal careers advance\nover time along a hierarchy in both tracks, equity can be measured by the proportion of partners\nin private practices and the proportion of federal judges. While there is still considerable work to\nbe done in creating equity, our analysis will assess the current efforts goal (Polden and Teague\n2020).\n\nResults\nA reconceptualization that differentiates between diversification and inclusiveness makes it\npossible to target specific barriers to equity in the legal profession and reveals undertheorized\npatterns of the process. Table 2 shows a snapshot of the representational gap of racial minorities\n8\n\nand women in the legal profession in 2019. First, notice that in terms of diversity in law schools,\naccess is roughly proportional to the US population and the percentage of women in law school\nis 3 percent above their proportion of the national population. In terms of inclusiveness in law\nschools, we find that there is about a 5 percent difference between women and POC entering the\nprogram and those who completed it. However, the gap significantly increased in the transition\nfrom graduation to the early stages of legal careers; this difference becomes even more striking\nwhen comparing women and POC\xe2\x80\x99s success in private practices with the federal bench.\nAccounting for this gap, further research should focus on identifying differences in the size of\nthe gap within categories of law schools, especially since recent studies show that there is no\nlonger a gap in terms of qualifications (Sen 2017). It is possible that top-tier schools are more\nsuccessful at placing racial minorities and women into private practices than into the early\nstages toward judgeship. It could also be that economic disadvantages for joining a public career\ndisproportionately affect women and POC.\n\n8. Because the data are collected by different agencies using different methodologies, comparisons\nand the estimation of the differences across the stages in the legal career may include measurement\nerrors. However, the numbers indicate patterns that should be further investigated with future data\ncollection efforts.\n52 | Examining Diversity, Inclusion, and Equity in the Legal Profession\n\n\x0cRepresentation gap across and within career paths\n\nWomen POC\n\nWomen of\nColor\n\nEquity gap in law school enrollment\n\n-3.25\n\n1.2\n\n0.0\n\nEquity gap in law school enrollment\n\n5.63\n\n5.56\n\n0.8\n\nGap between career paths (private associate vs district court)\n\n26.05\n\n9.52\n\n8.99\n\nEquity gap in the entry-point at private practice (private associate vs US\npopulation)\n\n3.98\n\n5.86\n\n4.32\n\nEquity gap in the federal judiciary at the lowest point (district courts vs.\nUS population)\n\n30.03\n\n25.44 14.48\n\nTable 2. Measuring the gaps (2019)\n\nIn terms of the differences between women and POC, we find that women have achieved greater\nlevels of representation than racial minorities in both the private and the public sectors. Even for\nwomen of color, the gap is smaller than for the aggregate of POC. The gap between the percentage\nof the population and the entry point in private practice is the smallest for women (3.98 percent)\nand the largest for POC (5.86 percent). A comparison between the early stages of women and POC\nin private practice and on the federal bench is currently impossible as we lack data on entry-level\ncareer choices that typically culminate in federal judgeships. But considering only clerkships at the\nUS Supreme Court, we can see that the percentages of gender and racial representation are lower\nthan those in private practice. For example, according to data from the National Law Journal, in\n2017, only 5.5 percent of US Supreme Court clerks were POC, and only 25 percent were women\n(Mauro 2017). While these numbers reflect a significant increase compared to those reported\nin 2005, at both points in time the rates were lower than participation in private practices. So\nwe find evidence that in terms of gender, race, and their intersection, the federal bench is less\nrepresentative than private practice. Figure 1 presents the evolution of these patterns over time.\n\nExamining Diversity, Inclusion, and Equity in the Legal Profession | 53\n\n\x0cFigure 1. Female representation in entry-level positions of private practice and the federal\ncourts\n\nFrom a historical perspective, we find women are disproportionately participating in private\npractice rather than public service. For example, we see that while enrollment in law school was at\nits peak in the early 2000s (around 33 percent), about 46 percent of the private market was made\nup of women. In contrast, women accounted for only 13 percent of district judges. Also, we see\nthat enrollment and private practices are more sensitive to economic crises such as in 2008, while\nfemale participation as district judges was not affected, due to lifetime tenure.\nAs the percentage of associate women in private firms is closer to parity, it is still necessary\nto make sure law schools address issues of gender equality that make it possible to create an\nopportunity for female legal professionals to achieve parity across different career choices. A\npaired t-test compares gender diversity using a sample of twenty-one years to determine whether\nthere was a statistically significant mean difference between the percentage of women in law\nschools and the percentage of associate lawyers in private firms. There is a higher participation\nrate of women as associates (41.6 to 43.8 percent) as opposed to law students (30.3 to 32.4 percent):\n9\n\na statistically significant gap of 11.3 percent. Notice also that inclusiveness in private practices\n\n9. Statistically significant at the 95 percent confidence level. The 95 percent confidence interval is 10.9\nto 11.8 percent\n54 | Examining Diversity, Inclusion, and Equity in the Legal Profession\n\n\x0cshows that both the gender and the racial minority gap widen when we compare the entry\nposition of associate to that of equity partner.\nThe most critical situation in terms of gender diversity is the exclusion of women in the federal\njudiciary. Figure 1 indicates a lag of almost twenty years between the beginning of female\nenrollment in law school and their inclusion in the federal district courts. While this trend can be\nin part explained by the inherent inertia of federal appointments\xe2\x80\x94once there, they are there for\nlife\xe2\x80\x94it also exemplifies the need to develop policies that protect the diversity in private practices\nfrom economic factors. This is nicely illustrated with the economic crisis in 2008. It affected\nwomen in private practices, but it coincided with the beginning of the Obama administration,\nduring which the largest number of women and people of color were appointed to the bench\n(Solberg and Diascro 2018). Different factors may explain this trend, including the role of political\nactors in determining the composition of the bench and the potential self-exclusion given the\neconomic burden of the public interest path along with the additional uncertainty of advancement\nin this path. Evidence from the state supreme courts supports this claim. Racial and gender\ndiversification of state supreme courts has been more successful where the political actors\ndetermine the composition of the bench via judicial appointments, as opposed to states where\njudicial elections determine the court\xe2\x80\x99s composition (Robbins and Bannon 2019).\nThe lack of gender representation in the private sector is greater if we measure the gap between\nwomen in leadership roles versus associate or inferior roles. This approach is necessary for\ndeveloping a perspective that can examine the conditions that make associate women less likely to\nbe promoted than men. For example, in 2019, women accounted for 24.17 percent of partners, but\njust 1 in 5 equity partners were women (20.3 percent). Figure 2 illustrates the glass ceiling in private\npractice. Notice that the pace of improvement is slower at the top compared to the associate level.\nThe difference between the percentages of female associates versus equity partners reveals that\nthe gap has proven resilient. A modest and consistent improvement of about 2 percent reduction\nin this disparity has occurred during the last five years.\nMeanwhile, the gap between female representation within firms as associates and partners\nremains steady at around 25 percent. This may introduce doubt about whether existing inclusion\npolicies have been sufficient to increase representation in the highest positions of power in private\npractices. While gender equality at the lowest levels in private practice seems achievable in the\nnear future, the lack of inclusiveness has reinforced the glass ceiling for women in this career path.\nWomen remain severely underrepresented at the highest levels of power despite dramatic gains\nat the lowest levels of private practice.\n\nExamining Diversity, Inclusion, and Equity in the Legal Profession | 55\n\n\x0cFigure 2. The glass ceiling in private practice\n\nFigure 3 shows differences in the level of inclusiveness achieved through the three levels of the\nfederal bench. Since there is minimal mobility across the judicial hierarchy and judgeships are\nseen as the terminal position for the majority of the appointments, the gap between the levels\nmay only reflect the willingness of the political actors involved in appointment and nomination to\ncreate spaces for women and POC. It relies on political actors pushing for marginalized groups\nto participate at the highest levels of the hierarchy, where they can have a greater influence on\npolicy making and the possibility of social change. The gap across the levels of the hierarchy\ndemonstrates that female participation is four times greater in district courts compared to the\ncircuit courts. It also conveys that Democratic presidents have had more success in diversifying\nthe composition of the highest court.\n\n56 | Examining Diversity, Inclusion, and Equity in the Legal Profession\n\n\x0cFigure 3. The glass ceiling in the federal bench\n\nPatterns of racial diversification are similar to those of gender diversification; the representation\nof people of color in the private sector is closer to their population percentages than their\nrepresentation in the federal court system. Estimates of population from the US Census (2010)\nsuggest that men of color represent 19 percent and women of color, another 19 percent, of the\n10\n\ntotal population.\n\nThe percentage of associates of color has been continuously increasing during\n\nthe last decade, and today they represent about 25 percent of the entry positions in private firms.\nInterestingly, the percentage of minority enrollment in law schools is lower than the participation\nin private offices, which raises some questions about the system\xe2\x80\x99s ability to create an adequate\nsupply of attorneys of color.\nWhen comparing gender diversification with racial diversification efforts, some differences are\nnoteworthy. While the gender gap in law school enrollment has been declining since 2008, there is\nstill a gap of 20 percent. For POC, there would need to be double the current rate of participation\n\n10. This is considering any non-White person to be a person of color and is the broadest interpretation\nof the term, including Asian, Black, Hispanic, Native American and any multiracial person.\nExamining Diversity, Inclusion, and Equity in the Legal Profession | 57\n\n\x0cin law school to get to proportional representation. This is particularly troublesome as we see that\nenrollment in law school has declined across all minoritized groups, including women and POC.\nFigure 4 shows that at the end of 1990, the ratio of representation of POC between the private\nsector and the federal bench was 1 to 1. Since then, the gap has grown immensely. Today, people of\ncolor are more represented in private practice than on the federal bench. The inability of political\nactors to keep up with the inclusiveness efforts of private firms may illustrate a failing of the\npolitical process to adequately recognize the accomplishments of attorneys of color. Further, it is\nalso highly dependent on which party controls political institutions as Democrats have typically\npromoted more marginalized candidates to the bench than Republicans.\n\nFigure 4. POC representation at the lowest level of private practice and federal courts\n\nWe find that the gap has actually increased in terms of the differences between POC associates\nand partners. Currently, the disparity is 10 percent greater than it was at the end of the 1990s.\nFigure 5 reveals an increase in the gap between representation at the entry level for jurists of color\nand partnership in private firms. It is clear that policies related to inclusiveness in private practices\nare needed in order to address the widening gap. Despite more well-trained attorneys of color\nthan at any point in history, the problem of attrition and a lack of career progression for racial\nminorities has kept the highest positions of power disproportionately White.\n\n58 | Examining Diversity, Inclusion, and Equity in the Legal Profession\n\n\x0cFigure 5. Racial gap in private practice\n\nFinally, figure 6 examines the relationship of power within the federal judicial hierarchy. Similar to\nthe imbalances of power in private practice, within the judicial system, jurists of color are more\nlikely to preside over the lower courts (district courts) rather than higher courts in the hierarchy.\nThe racial gap on the federal bench is larger in the circuit than in the district court, where POC\nare represented three times more often. Similar to the case for women, the gap between district\ncourts and the circuits has been widening over time. We also see that the percentage of minority\nenrollment in law school is higher than minority representation at any level of the bench. Despite\nsignificant efforts to close the qualification gap for racially minoritized people, the improved\ncredentials have not led to a correction of the disparity between people of color at the highest and\nlowest levels of the profession.\n\nExamining Diversity, Inclusion, and Equity in the Legal Profession | 59\n\n\x0cFigure 6. Racial gap in the federal bench\n\nWhat Is Needed to Achieve Gender and Racial Equity?\nAfter applying the DIE framework to measure the gaps in racial and gender representation in the\nlegal profession, it becomes obvious that optimism about gains in descriptive representation may\nbe na\xc3\xafve. While diversity itself is at or near all-time highs in almost every level of the profession,\nthe gains have been primarily at entry-level positions or in law school enrollment; meanwhile, the\nrate of attrition for women and POC in the profession is disproportionately high, and promotions\nare disproportionately low (Kay et al. 2016; Payne-Pikus et al. 2010). The DIE framework allows us\nto put this trend into context as it distinguishes that diversity in the entry levels must be met with\ninclusiveness in order to eventually achieve equity.\nOur analysis adds to the existing literature by comparing women and POC\xe2\x80\x99s lack of representation\nthroughout their careers across the hierarchies of private practice and the federal judiciary while\ndifferentiating between diversity, inclusion, and equity. We find that the increase in diversity for\nwomen and racial minorities between private practice and the federal bench has been uneven\nin terms of achievements and timing. While efforts to diversify law school cohorts have had a\nhuge impact on the number of marginalized people entering private practices, this push has\n60 | Examining Diversity, Inclusion, and Equity in the Legal Profession\n\n\x0cnot resulted in immediate shifts in the inclusiveness of the profession and has only minimally\nmoved the profession toward the ultimate goal of racial and gender equity. Through this lens,\nwe uncovered the need for inclusiveness programs at early stages in legal careers, such as\nclerkships in law schools to promote women and racial minority representation on the bench.\nWhile recognizing the progress in terms of diversity, the need for improvements in inclusiveness\nto achieve equity is patent. The analysis presented in this chapter calls for further research on why\ndiversification and inclusion efforts have been more successful for White women than for men\nand women of color.\nAttempts to remedy the considerable disparities in the legal profession must first address huge\ndisparities in the American education system and the current climate of unequal access to quality\neducation. Law schools have been a focus for advocates of diversification; however, efforts by law\nschools focused exclusively on the admission process cannot solve the current racial and gender\ngaps at the top of the profession nor can they remove the existing barriers for marginalized groups\nin the profession. The pipeline to women and POC at the higher levels of the legal profession\ncannot exclusively rely on the creation of a pool of \xe2\x80\x9cqualified\xe2\x80\x9d jurists (Cook 1984; Martin 1987).\nIncreased representation of marginalized communities in law schools is a move in the right\ndirection. Without removing obstacles and providing adequate support systems for minoritized\ncommunities in the legal profession, attrition rates will still hamper attempts at racial and gender\nequity (Kay et al. 2016; Gorman and Kay 2010). That is to say, without real efforts to remove the\nbarriers still in place in the legal profession, especially the informal barriers related to support\nstructures and social networks, the larger goal of equity will remain out of reach.\n\nReferences\nBa\xc4\x87ak, Valerio, Sarah E. 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Cambridge, UK: Cambridge University Press.\n\n62 | Examining Diversity, Inclusion, and Equity in the Legal Profession\n\n\x0cJewel, Lucille A. 2008. \xe2\x80\x9cBourdieu and American Legal Education: How Law Schools Reproduce\nSocial Stratification and Class Hierarchy.\xe2\x80\x9d Buffalo Law Review 56:1155.\nKay, Fiona, and Elizabeth Gorman. 2008. \xe2\x80\x9cWomen in the Legal Profession.\xe2\x80\x9d Annual Review of Law\nand Social Science 4 (1): 299\xe2\x80\x932332.\nKay, Fiona M., and Jean E. Wallace. 2009. \xe2\x80\x9cMentors as Social Capital: Gender, Mentors, and Career\nRewards in Law Practice.\xe2\x80\x9d Sociological Inquiry 79 (4): 418\xe2\x80\x9352.\nKay, Fiona M., Stacey L. Alarie, and Jones K. Adjei. 2016. \xe2\x80\x9cUndermining Gender Equality: Female\nAttrition from Private Law Practice.\xe2\x80\x9d Law & Society Review 50 (3): 766\xe2\x80\x93801.\nKennedy, Deseriee A. 2019. \xe2\x80\x9cAccess Law Schools and Diversifying the Profession.\xe2\x80\x9d Temple Law\nReview 92:799.\nKidder, William C. 2003. \xe2\x80\x9cThe Struggle for Access from Sweatt to Grutter: A History of African\nAmerican, Latino, and American Indian Law School Admissions, 1950\xe2\x80\x932000.\xe2\x80\x9d Harvard BlackLetter\nLaw Journal 19:1.\nKrakauer, L., and C. P. Chen. 2003. \xe2\x80\x9cGender Barriers in the Legal Profession: Implications for\nCareer Development of Female Law Students.\xe2\x80\x9d Journal of Employment Counseling 40 (2): 65\xe2\x80\x9379.\nLaffey, Allison, and Allison Ng. 2018. \xe2\x80\x9cDiversity and Inclusion in the Law: Challenges and Initiatives.\xe2\x80\x9d\nAmerican Bar Association. https://www.americanbar.org/groups/litigation/committees/jiop/\narticles/2018/diversity-and-inclusion-in-the-law-challenges-and-initiatives/.\nLatourette, Audrey Wolfson. 2004. \xe2\x80\x9cSex Discrimination in the Legal Profession: Historical and\nContemporary Perspectives.\xe2\x80\x9d Valparaiso Law Review 39:859.\nLong, Alex B. 2016. \xe2\x80\x9cEmployment Discrimination in the Legal Profession: A Question of Ethics.\xe2\x80\x9d\nUniversity of Illinois Law Review (2016): 445\xe2\x80\x9386.\nMartin, Elaine. 1987. \xe2\x80\x9cGender and Judicial Selection: A Comparison of the Reagan and Carter\nAdministration.\xe2\x80\x9d Judicature 71:136.\nMauro, Tony. 2017. \xe2\x80\x9cMostly White and Male: Diversity Still Lags Among SCOTUS Law Clerks.\xe2\x80\x9d\nLaw.com.\n\nhttps://www.law.com/nationallawjournal/sites/nationallawjournal/2017/12/11/\n\nmostly-white-and-male-diversity-still-lags-among-scotus-law-clerks/.\nMcMillion, Barry J. 2014. US Circuit Court Judges: Profile of Professional Experiences Prior to\nAppointment.\n\nCongressional\n\nResearch\n\nService.\n\nhttps://library.law.uiowa.edu/sites/\n\nlibrary.law.uiowa.edu/files/R43538.pdf.\n\nExamining Diversity, Inclusion, and Equity in the Legal Profession | 63\n\n\x0cMoliterno, James E. 1991. \xe2\x80\x9cAn Analysis of Ethics Teaching in Law Schools: Replacing Lost Benefits of\nthe Apprentice System in the Academic Atmosphere.\xe2\x80\x9d University of Cincinnati Law Review 60:83.\nMoore, Wendy Leo. 2007. Reproducing Racism: White Space, Elite Law Schools, and Racial\nInequality. Lanham, MD: Rowman & Littlefield.\nNALP. 2019. NALP Report on Diversity in U.S. Law Firms 2019. https://www.nalp.org/\nreportondiversity.\nNegowetti, Nicole. 2015. \xe2\x80\x9cImplicit Bias and the Legal Profession\xe2\x80\x99s \xe2\x80\x98Diversity Crisis\xe2\x80\x99: A Call for SelfReflection.\xe2\x80\x9d Nevada Law Journal 15 (2): 431\xe2\x80\x9360.\nObasogie, Osagie K. 2017. Review of \xe2\x80\x9cDiversity in Practice: Race, Gender, and Class in Legal and\nProfessional Careers,\xe2\x80\x9d by Robert L. Nelson, Ronit Dinovitzer, David B. Wilkins. Contemporary\nSociology 46 (6): 680\xe2\x80\x9381.\nPayne-Pikus, Monique R., John Hagan, and Robert L. Nelson. 2010. \xe2\x80\x9cExperiencing Discrimination:\nRace and Retention in America\xe2\x80\x99s Largest Law Firms.\xe2\x80\x9d Law & Society Review 44 (3\xe2\x80\x934): 553\xe2\x80\x9384.\nPearce, Russell G., Eli Wald, and Swethaa S. Ballakrishnen. 2014. \xe2\x80\x9cDifference Blindness vs. Bias\nAwareness: Why Law Firms with the Best of Intentions Have Failed to Create Diverse\nPartnerships.\xe2\x80\x9d Fordham Law Review 83:2407.\nPolden, Donald J., and Leah Jackson Teague. 2019. \xe2\x80\x9cMore Diversity Requires More Inclusive Leaders\nLeading by Example in Law Organizations.\xe2\x80\x9d Hofstra Law Review 48:681.\nRandazzo, Sara. 2019. \xe2\x80\x9cBeing a Law Firm Partner Was Once a Job for Life. That Culture Is All\nbut Dead.\xe2\x80\x9d Wall Street Journal. https://www.wsj.com/articles/being-a-law-firm-partner-wasonce-a-job-for-life-that-culture-is-all-but-dead-11565362437/.\nRhode, Deborah L. 2013. \xe2\x80\x9cDiversity and Gender Equality in Legal Practice.\xe2\x80\x9d University of Cincinnati\nLaw Review 82:871.\nRhode, Deborah L., and Lucy Buford Ricca. 2014. \xe2\x80\x9cDiversity in the Legal Profession: Perspectives\nfrom Managing Partners and General Counsel.\xe2\x80\x9d Fordham Law Review 83:2483.\nRider, Christopher I., Adina D. Sterling, and David Tan. 2016. \xe2\x80\x9cCareer Mobility and Racial Diversity\nin Law Firms.\xe2\x80\x9d In Diversity in Practice: Race, Gender, and Class in Legal and Professional Careers,\nedited by Spencer Headworth, Robert L. Nelson, Ronit Dinovitzer, and David B. Wilkins, 357\xe2\x80\x9382.\nCambridge Studies in Law and Society. Cambridge: Cambridge University Press.\nRobbins, Laila, and Alicia Bannon. 2019. \xe2\x80\x9cState Supreme Court Diversity.\xe2\x80\x9d Brennan Center for\n\n64 | Examining Diversity, Inclusion, and Equity in the Legal Profession\n\n\x0cJustice.\n\nhttps://www.brennancenter.org/our-work/research-reports/state-supreme-court-\n\ndiversity.\nRothstein, Jesse, and Albert Yoon. 2008. \xe2\x80\x9cMismatch in Law School.\xe2\x80\x9d NBER Working Paper Series,\nWorking Paper 14275, National Bureau of Economic Research. https://www.nber.org/system/\nfiles/working_papers/w14275/w14275.pdf.\nRothstein, Richard. 2015. \xe2\x80\x9cThe Racial Achievement Gap, Segregated Schools, and Segregated\nNeighborhoods: A Constitutional Insult.\xe2\x80\x9d Race and Social Problems 7 (1): 21\xe2\x80\x9330.\nSander, Richard H. 2004. \xe2\x80\x9cA Systemic Analysis of Affirmative Action in American Law Schools.\xe2\x80\x9d\nStanford Law Review 57:367.\nSander, Richard, and Jane Bambauer. 2012. \xe2\x80\x9cThe Secret of My Success: How Status, Eliteness, and\nSchool Performance Shape Legal Careers.\xe2\x80\x9d Journal of Empirical Legal Studies 9 (4): 893\xe2\x80\x93930.\nSen, Maya. 2017. \xe2\x80\x9cDiversity, Qualifications, and Ideology: How Female and Minority Judges Have\nChanged, or Not Changed, Over Time.\xe2\x80\x9d Wisconsin Law Review 2:367\xe2\x80\x9399.\nSeuffert, Nan, Trish Mundy, and Susan Price. 2018. \xe2\x80\x9cDiversity Policies Meet the Competency\nMovement: Towards Reshaping Law Firm Partnership Models for the Future.\xe2\x80\x9d International\nJournal of the Legal Profession 25 (1): 31\xe2\x80\x9365.\nSmith, J. Clay, Jr. 1993. \xe2\x80\x9cJustice and Jurisprudence and the Black Lawyer.\xe2\x80\x9d Notre Dame Law Review\n69:1077.\nSolberg, Rorie Spill, and Jennifer Segal Diascro. 2018. \xe2\x80\x9cA Retrospective on Obama\xe2\x80\x99s Judges:\nDiversity, Intersectionality, and Symbolic Representation.\xe2\x80\x9d Politics, Groups, and Identities 8 (3):\n1\xe2\x80\x9317.\nSommerland, Hilary. 2014. \xe2\x80\x9cThe Social Magic of Merit: Diversity, Equity, and Inclusion in the\nEnglish and Welsh Legal Profession.\xe2\x80\x9d Fordham Law Review 83:2325.\nWald, Eli. 2011. \xe2\x80\x9cA Primer on Diversity, Discrimination, and Equality in the Legal Profession or Who\nis Responsible for Pursuing Diversity and Why.\xe2\x80\x9d Georgetown Journal of Legal Ethics 24:1079.\n\nUnderstanding T-Tests\nIn the social sciences, researchers are always concerned that the results they find are occurring\nExamining Diversity, Inclusion, and Equity in the Legal Profession | 65\n\n\x0cbecause of real-world causes rather than merely measurement error or random chance. For\nexample, you could be an A (95 percent average) student but have a tough day and a lousy\ntest\xe2\x80\x94let\xe2\x80\x99s say you score an 85 percent on this test. While the 85 percent result may not adequately\ndescribe your abilities as an A (95 percent) student, sometimes A students do not get As on their\nassignments or tests, but they still are A students nonetheless. In statistics, this is problematic,\nbecause taking an average of any given test for the whole class might not reflect the actual\nperformance of the class, but rather that some students, for all sorts of reasons, did not perform as\nusual on their tests. Researchers need a way to determine the appropriate amount of confidence\nor trust that they can place in these results. For this reason, researchers use a concept called\nstatistical significance. Statistical significance is a way to quantify how confident researchers are\nthat the inferences they draw from their data illustrate some sort of effect rather than just random\nluck or circumstances. Generally, social scientists will declare their results to be statistically\nsignificant when they can be at least 95 percent confident that the results they are reporting are\nnot simply due to random chance or error.\nA t-test is one of the simplest ways to determine whether there are significantly significant\ndifferences between two groups. In this case, significant means the confidence we have that the\ndifferences between these two groups result from real differences and not just random chance.\nFor example, let\xe2\x80\x99s look at the average LSAT score for accepted students at Columbia Law School\ncompared to the average LSAT score for accepted students at Harvard Law School. At Columbia,\nthe average LSAT score is 172, and at Harvard, the average LSAT score is 173. At first glance, it is\nobvious that there is a difference between the two schools; however, Columbia students might\nargue that this metric doesn\xe2\x80\x99t tell the whole story. The year (2019) for which this number was\ncalculated might not be representative of all years. Or maybe by sheer random luck, a few Harvard\nstudents guessed and got correct answers, which skewed the statistics. In any measurement of\ngroup averages, in this case the average LSAT score, there is some amount of random chance.\nWhile Harvard is happy to advertise their higher scores on this metric, it is important to determine\nhow sure we can be that this difference doesn\xe2\x80\x99t reflect differences in random chance rather than\nactual real differences in performance. After all, students taking the LSAT might miss a question\nhere and there for random reasons. How positive can we be about this difference between the\nscores? Is it fair to say that the difference is caused by Harvard having superior students?\n\nHow Does a T-Test Work?\nWhen conducting a t-test, statisticians are concerned with three main concepts: absolute\ndifference, standard deviation, and sample size. First is the amount of absolute difference\nbetween the two means. The absolute difference is simply how far apart the two groups\xe2\x80\x99 averages\n66 | Examining Diversity, Inclusion, and Equity in the Legal Profession\n\n\x0care from one another. The reason for this is pretty obvious. If we are attempting to compare two\ngroups by their LSAT scores and one group averages 150 while the other group averages 175, the\nlarge amount of difference between the two groups\xe2\x80\x99 average (25 points) is a strong signal that\nthere really is a cause (or than random chance) explaining the difference. In our previous example\ncomparing Harvard and Columbia, the absolute difference is simply 173-172. An absolute difference\nof 1 point is much less likely to be significant than a 25-point difference, all things considered.\nSecond, we are concerned about the standard deviation of the group. Standard deviation is a\nmeasure of how much difference there is within each sample population. Using the Harvard versus\nColumbia example, the standard deviation would be the difference between accepted students\nwithin both schools. If there is a lot of variation within each sample, then we are not as confident\nthat the difference between the samples is really the result of a cause. A wide variety of reported\ntest scores in either class indicates that the means are less representative of the whole population.\nFor example, if the range of test scores is 120\xe2\x80\x9380 for Columbia, then the 172 average could be the\nresult of outliers. Meanwhile, if there is a very small standard deviation, we can be more confident\nthat there is a real difference. For example, if the test scores at Harvard range from 172 to 174,\nthe average of 173 is not being determined by a few high scores or a few low scores; instead, it is\nbeing determined by a large number of test scores in the same range. As a result, the smaller the\nstandard deviation between the two comparison groups, the higher the degree of certainty we can\nhave in the results.\nFinally, statisticians are always concerned with sample size. Sample size is simply the number of\nobservations\xe2\x80\x94in this case, test scores. In general, the larger the sample size, the more confident\nwe can be about the resulting trends. For example, if we were to compare Harvard and Columbia,\nbut one school\xe2\x80\x99s average was based on only five LSAT scores while the other average was based on\nfive thousand LSAT scores, we would be much more confident in the average generated from the\nlarger sample. A sample with five thousand observations cannot be easily skewed by one or two\noutlier cases; meanwhile, a sample of five observations could change dramatically if only one or\ntwo test scores are very high or very low.\n\nThe Takeaway\nT-tests are used to determine the amount of confidence that there is an actual difference between\nthe two groups not caused by random chance. Whenever we compare group averages, there is a\nrisk that some of the differences are caused simply by things like measurement error or random\nluck. For example, suppose we wanted to compare the performance of two different classes on\nthe same test. In that case, there might be random things such as unclear questions, unusual\nExamining Diversity, Inclusion, and Equity in the Legal Profession | 67\n\n\x0cattendance, grading errors, or other random events that do not tell us much about the actual\nperformance. In groups, outliers or observations that are far from the norm can drive the averages\nfor groups, especially in cases where the sample size is small. Statisticians use a t-test to assess\nhow confident they can be that there is real difference between two groups rather than simply\nmeasurement error, random chance, outliers, or other forms of uncertainty.\n\nActivity Questions\n1. True or False: It is possible to compare two groups based on their averages and assume that\ndifferences between the group averages are the result of real differences between the group\npopulations with 100 percent certainty.\n2. True or False: Larger sample size increases the certainty that group-level statistics are\nadequately summarizing the information from the group rather than a few outliers.\n3. True or False: When comparing the averages of two different population groups, small\nvariation within the groups (usually measured as standard deviation) will increase our\nconfidence that there is a statistically significant difference.\n4. True or False: Researchers use the concept of statistical significance to determine how\nconfident they are that their statistical inferences are determined by factors other than\nrandomness, luck, or measurement/sample error.\n5. True or False: The typical level of confidence used to define statistical significance is 85\npercent. It means that researchers are 85 percent confident that the results are not\nproduced by random chance.\n\n68 | Examining Diversity, Inclusion, and Equity in the Legal Profession\n\n\x0c3. On Remand\nLegal Strategies After Supreme Court Losses\nRICHARD S. PRICE\n\nSupreme Court Losses and Strategic Reactions\nLaw and courts research often overlooks an important question: What do lawyers do after an\nadverse decision? Law and courts research is dominated by a concern with winning. This naturally\ncomes with considerations of loss, but only as the other side of a dichotomous variable. When we\nask whether justices decide issues based on law, policy, strategy, or some combination (Epstein\nand Knight 1998; Graber 2006; Segal and Spaeth 2002), we are naturally asking what helps some\nparties win. The debate over legal efficacy assumes victory is a key condition; if courts reject a\nlegal claim, it would appear pointless to then inquire over whether victory has value. So winning is\nthe key variable, and subsequent questions tend to focus on the components of winning or their\neffects. Here, I take a different tack. The goal here is to understand what strategies lawyers adopt\nwhen they face the worst-case scenario: a Supreme Court of the United States (SCOTUS) loss. As\ndeveloped below, I argue that a SCOTUS loss, while certainly suboptimal, is not always the end of\nthe case. Lawyers strategically develop legal arguments based on the signals sent by courts over\ntime. When the signal changes dramatically from SCOTUS, strategic litigators on remand to the\nstate\xe2\x80\x99s highest court work to salvage their case by turning to state constitutional law as a last-ditch\neffort to preserve a victory.\nTo some degree, losses define much of the concern of law and courts research in unspoken ways.\nIf we take the common criticism that judicial review is undemocratic (Bickel 1962), it is because\nthe democratic process rejected some argument that becomes the basis for litigation. American\ngovernment is decentralized and fragmented, giving losers in one venue many opportunities to\nthwart their opponents\xe2\x80\x99 success. In other words, litigation may serve as a veto point (Krehbiel\n1998). Thus when the New York legislature legalized abortion in 1970, and the Oregon people\nlegalized physician-assisted suicide in 1996, their right-to-life opponents went to court to\ninvalidate the democratic action (Price and Keck 2015). This is the classic story of American cause\nlitigation: claimants lose in one venue and move to the courts as a means of mitigating that loss.\nThis of course works in reverse as well. A SCOTUS loss need not be the end of the legal process.\nFor example, J. Mitchell Pickerill (2004, 42) found that in 47 percent of cases of invalidated federal\nlaw from 1954 to 1997, Congress responded with either amended or new statutes often designed\nOn Remand | 69\n\n\x0cto reach the same result as the invalidated law. In his reevaluation of the New Deal constitutional\ncrisis, Barry Cushman (1998) concluded that a significant aspect of the crisis involved New Deal\nlegislators and executive branch officials adapting to SCOTUS\xe2\x80\x99s concerns.\nScholars have not ignored the nature of loss in litigation, but they have tended to focus on\nsociolegal studies of cause litigation more than what we might term regular litigation. Marc\nGalanter (1974) illustrated the value of strategic settlement for repeat players in the legal system\nbecause they avoided cases that might create adverse precedent through loss, a dynamic that\nCatharine Albiston (1999) developed further through a study of the strategic use of procedural\nmechanisms to shape the early law of a new federal statute. This line of research helps establish\nthat sometimes, powerful litigants may intentionally \xe2\x80\x9close\xe2\x80\x9d a case, such as through strategic\nsettlement, to preserve a legal environment that suits their long-term interests. The interest here,\nhowever, is with the more traditional litigation where we can presume that winning is the goal.\nDouglas NeJaime (2011) developed a theory of loss in social movement litigation. Importantly, he\nlooks at how \xe2\x80\x9cstrategies developed in the wake of loss operate as second-best alternatives\xe2\x80\x94as\nresponses to the failure of the initial tactic\xe2\x80\x9d (971). The presumed goal of such litigation, of course,\nis victory on the group\xe2\x80\x99s policy issue. Having lost, savvy organizers must strategize around their\nsecondary options. For his study of LGBT and Christian conservative activism, NeJaime concluded\nthat \xe2\x80\x9cinternally, savvy advocates may use litigation loss (1) to construct organizational identity\nand (2) to mobilize outraged constituents. Externally, these advocates may use litigation loss (1) to\nappeal to other state actors, including courts and elected officials, through reworked litigation and\nnonlitigation tactics and (2) to appeal to the public through images of an antimajoritarian judiciary\xe2\x80\x9d\n(947). In a study of loss in prosegregation litigation, Christopher Schmidt (2015, 1199\xe2\x80\x931212)\nemphasized how even litigation losses could be turned to support the message of white\nSoutherners as moderate defenders of a legitimate tradition. One key mobilizing aspect of\nlitigation losses is that they are high-profile events that \xe2\x80\x9ccan act as a lever for legislative\ncounteraction that reverses the legislative action challenge in the lawsuit, or it can instigate\nlegislation that overrules or minimizes the judicial precedent created by the litigation\xe2\x80\x9d (Depoorter\n2013, 837). One example of this dynamic is the public and legislative response to Kelo v. New\nLondon (2005), where the publicity of the Supreme Court\xe2\x80\x99s opinion led nearly all states to put some\ngreater limits on economic development takings (Somin 2015, 135\xe2\x80\x9364).\nWhile social movements may be able to turn losses into public mobilization victories, most\nlitigants are not part of broader social movements. Everyday rights claimants are more concerned\nwith their individual situation than with establishing a favorable precedent for broader social\nchange. A person who believes she was wrongfully convicted has a more traditional goal: to get\nout of prison. Most lawyers serve these traditional clients, where even if the lawyers have broader\ngoals themselves, the primary goal is to reverse some negative treatment of their client\xe2\x80\x99s rights. A\nSCOTUS loss is likely to be particularly troubling, as it is often assumed to foreclose any chance of\n70 | On Remand\n\n\x0csuccess. As I explore here, strategic lawyers have other options available to them provided by the\npeculiarities of American federalism.\nDue to a quirk of American federalism, state supreme courts have the ability to disregard federal\nrights retrenchment. While SCOTUS is the final interpreter of federal law, it has no power to\ninterpret state law (Michigan v. Long 1983). As SCOTUS retrenched away from some forms of\nliberal rights protections in the 1970s and 1980s (Keck 2004), many liberal judges and law\nprofessors turned to state constitutional law as a means of preserving liberal policy goals. The\nmost famous example is Justice William Brennan\xe2\x80\x99s (1977) invitation to litigants and state courts to\nignore new federal precedents that he saw as undermining the successes of the Warren Court.\n\n1\n\nThis led to a new form of judicial federalism: the use of state constitutions to provide rights\nprotections that are separate and beyond the minimal requirements of federal doctrine.\nJudicial federalism provides some claimants with a method of salvaging something from a SCOTUS\nloss. For a strategic litigant, turning to state supreme courts can offer an additional opportunity\nto win after her case is rejected at the federal level. Judicial federalism is a distinctly second-best\nalternative for social movements that seek broad national policy (Farole 1998, 21), but for regular\nlitigants, a win is a win. A person whose conviction is reversed because a search was found to be\nunconstitutional seems unlikely to care about the niceties of legal doctrine that achieved this goal.\nWhile judicial federalism is potentially a source of significant state court independence, empirical\nstudies routinely discovered that state courts overwhelmingly relied on federal doctrine in most\nrights disputes (Beavers and Emmert 2000; Cauthen 2000; Emmert and Truat 1992; Esler 1994;\nFino 1987; Latzer 1991). Studies of legal arguments presented to state supreme courts found that\nwithout some degree of incentive, lawyers rarely briefed issues of state constitutional rights (Price\n2013, 2015, 2017).\nThis continued dominance of federal constitutional law is unsurprising given the path-dependent\nnature of law. With the nationalization of constitutional rights law during the Warren Court\nera, state constitutional law largely disappeared from legal discussions and education. Though\nthey provide significant attention to state-level variation in common law, law schools teach\nconstitutional law as the product of SCOTUS decisions exclusively (Sutton 2009; Williams 1991).\nBecause \xe2\x80\x9ccourts\xe2\x80\x99 early resolutions of legal issues can become locked-in and resistant to change\xe2\x80\x9d\n(Hathaway 2001, 604\xe2\x80\x935), the embedding of federal constitutional doctrine to the exclusion of\nother potential sources of remedy leaves lawyers trained to respond by following the path already\nbroken. Lawrence Friedman (2011) argued that the weak development of state constitutional rights\n\n1. To be fair, this is a pessimistic reading of Brennan\xe2\x80\x99s argument. He presents his case as a faithful\nadherence to the principle of federalism, but as Earl Maltz (1988) argues, this seems difficult to\nsquare with Brennan\xe2\x80\x99s history (but see Williams 1998). For a more principled and nuanced defense of\njudicial federalism, see Linde (1970).\nOn Remand | 71\n\n\x0claw is directly related to this path dependence. Breaking from this path is difficult. It requires\nlawyers to support a new path through not only bringing cases for the court to act on (Epp 1998)\nbut also offering ideational support in the form of legal arguments that take state constitutional\nlaw seriously (Price 2013). This last form of support is complicated by the lack of a professional\ncommunity dedicated to supporting state constitutional law strategically (Hollis-Brusky 2015). As\nmost lawyers would find it daunting to \xe2\x80\x9cimagine a world in which there is no federal law\xe2\x80\x9d and make\nstate claims from scratch (Friesen 2006, 1\xe2\x80\x9364), I argue that lawyers rely on judicial signals before\nturning to state constitutional rights claims.\nThe first signal, and the most relevant to this study, comes externally from SCOTUS. When a\nfederal argument is rejected, either reversing or minimizing a rights claim, strategic lawyers\nhave little choice but to turn to alternative state claims. The problem is that they are limited\nby their training to conceptualizing constitutional law solely in federal doctrinal terms. Thus on\nremand, these lawyers are likely to engage in SCOTUS avoidance. In essence, these arguments\ninvite the state supreme court to apply the now rejected federal argument under the auspices\nof state constitutionalism to avoid review. The second signal comes from within a state. Some\nstate supreme courts decided to encourage state constitutional arguments by providing specific\nguidance or instruction to lawyers (see Price 2013, 2015). The goal of these internal signals is often\nto overcome the tendency of lawyers to speak in federal terms only. I will illustrate this theory\nwith a case study of George Upton.\n\nThe Case of George Upton\nOn September 11, 1980, an unidentified woman called the Yarmouth, Massachusetts, police\ndepartment to report that \xe2\x80\x9ca motor home full of stolen stuff [is] parked behind the home of\n2\n\n[George Upton] and his mother\xe2\x80\x9d (Commonwealth v. Upton 1983). Under questioning, the woman\ndescribed the nature of the goods and said that she had seen them personally at some unspecified\ntime and place. The woman eventually agreed to the officer\xe2\x80\x99s assertion that she was an exgirlfriend of Upton. After visually confirming that a motor home was on the property, the officer\nobtained a search warrant based on the information from the phone call. After a variety of stolen\nitems were discovered, Upton was charged with burglary and related crimes. Upton ultimately\nappealed his conviction to the Supreme Judicial Court of Massachusetts (SJC), arguing that the\nsearch warrant was invalid.\nInitially, Upton\xe2\x80\x99s lawyers argued a fairly standard Fourth Amendment claim: the warrant affidavit\n\n2. I draw the following basic case facts from this decision.\n72 | On Remand\n\n\x0clacked probable cause under Aguilar-Spinelli. In short, this doctrine required that an affidavit\ndemonstrate both the informant\xe2\x80\x99s basis for the knowledge and the veracity of the information\n(Aguilar v. Texas 1964; Spinelli v. U.S. 1969). Shortly after this brief was filed, SCOTUS decided\nIllinois v. Gates (1983). The rigid Aguilar-Spinelli test was jettisoned in favor of a more amorphous\n\xe2\x80\x9ctotality of the circumstances\xe2\x80\x9d test; determinations of probable cause were subjected to a\ndeferential standard of review, where a higher showing of veracity could overcome deficiencies\nin the informant\xe2\x80\x99s basis for knowledge and vice versa. As this issue implicated the only significant\nconstitutional issue in Upton\xe2\x80\x99s case, the SJC ordered new arguments on the effect of this change.\nUpton\xe2\x80\x99s lawyers carefully framed Gates as a minor change at most, but perhaps realizing that this\nwas a shaky argument, they argued a new theory: Article 14 of the Massachusetts Declaration of\n3\n\nRights mandates the continued application of the now discarded federal rule. Despite the fact\nthat the state constitution had been virtually ignored in the first argument, Upton now argued,\n\xe2\x80\x9cIt is obviously the province and indeed, the obligation, of [the SJC] to interpret this state\xe2\x80\x99s\n4\n\nconstitution.\xe2\x80\x9d While the brief noted textual differences between the state and federal provision\nand the prerevolutionary history of the Massachusetts Constitution, the primary argument\namounted to an attack on Gates. It cited Justice Brennan\xe2\x80\x99s dissent to show how the Fourth\nAmendment was being \xe2\x80\x9ceviscerated\xe2\x80\x9d: \xe2\x80\x9cTo allow informants to become the oracle of law\n5\n\nenforcement agencies is to decimate the Fourth Amendment.\xe2\x80\x9d With such decimation becoming a\nreality at the federal level, the SJC must enforce the prior protective rule under the state provision.\nThe SJC concluded that Gates only minimally modified Fourth Amendment doctrine and that\nthe warrant affidavit lacked sufficient probable cause. SCOTUS reversed in a short opinion that\ndemonstrated annoyance at the SJC\xe2\x80\x99s distortion of Gates (Massachusetts v. Upton 1984, 732). On\nremand to the SJC, a third brief now relied solely on the state constitution. The remand brief\nimmediately framed the issue as whether the SJC should \xe2\x80\x9caccept or reject two watershed Fourth\nAmendment decisions of the United States Supreme Court . . . as the model for interpreting\xe2\x80\x9d\n\n3. The article states, Every subject has a right to be secure from all unreasonable searches, and\nseizures, of his person, his houses, his papers, and all his possessions. All warrants, therefore, are\ncontrary to this right, if the cause or foundation of them be not previously supported by oath or\naffirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or\nto arrest one or more suspected persons, or to seize their property, be not accompanied with a\nspecial designation of the persons or objects of search, arrest, or seizure: and no warrant ought to\nbe issued but in cases, and with the formalities prescribed by the laws. [There are no pages, it is a\nconstitutional provision. It is equivalent to citing the First Amendment\n4. Commonwealth v. Upton, 458 N.E.2d 717, defendant\xe2\x80\x99s supplemental brief at 25.\n5. Upton, defendant\xe2\x80\x99s supplemental brief at 32, 34\xe2\x80\x9335.\nOn Remand | 73\n\n\x0c6\n\nthe state search provision. The claimant discussed some of the same textual and historical\ndifferences as the supplemental brief in greater detail, but again the primary concern was with\nattacking the policy of Gates. Relying on law professors\xe2\x80\x99 critiques of the new trend in Fourth\nAmendment law, the remand brief attacked the logic of Gates as both faulty and a poor basis for\na constitutional rule: \xe2\x80\x9cThe current \xe2\x80\x98totality of the circumstances\xe2\x80\x99 test . . . is so vague and formless,\nand carries with it such extreme risk of confusion and abuse, that it is incapable of protecting the\n7\n\nArticle 14 rights of the people of\xe2\x80\x9d Massachusetts.\n\nGeorge Upton\xe2\x80\x99s story illustrates the theory well. In his initial appeal, he followed the path laid\nout by decades of Fourth Amendment law. The lawyers had no real reason to expect to need\nanother argument. Only as SCOTUS shifted did they start to present an alternative and, ultimately,\nexclusive argument around the state constitution. This new argument eventually managed to win\nafter a SCOTUS loss.\n\nResearch Design\n8\n\nThe focus of this study is on rights claimants who won in a state supreme court, lost on appeal\nto SCOTUS, and then were heard on remand. While other elements of the litigation process\nprovide information to the courts, the legal briefs are the primary method of influencing appellate\ncourts. I do not consider opposing briefs or amicus curiae briefs, as the focus is on how lawyers\nrespond to losses; thus the claimant\xe2\x80\x99s brief is the most appropriate to explore that question.\nThis resulted in two types of cases. First, remand cases are those where SCOTUS issued a full\ndecision on the merits of the issue reversing the state court\xe2\x80\x99s decision. Second, consideration\ncases are those where SCOTUS issued a summary reversal and remand to consider the effect of\na recent decision. While consideration cases presented a less definitive negative signal about the\nviability of the rights claim at issue, they are likely to be instances where a recent federal doctrinal\nchange undermined the viability of the claim. I estimated that about sixty cases should have briefs\navailable, and I collected briefs from thirty-three cases for both initial and remand stages, twenty-\n\n6. Commonwealth v. Upton, 476 N.E.2d 548 (Mass. 1985), defendant\xe2\x80\x99s brief on remand at 1. The second\ndecision was United States v. Leon (1984), establishing the good-faith exception to the exclusionary\nrule.\n7. Upton, 476 N.E.2d 548, defendant\xe2\x80\x99s brief on remand at 15.\n8. State supreme court is used as a generic term for the highest appellate court even if that court uses\na different title, such as the New York Court of Appeals.\n74 | On Remand\n\n\x0cfour reversal and nine consideration cases. My sample includes briefs from fourteen states. Only\nthe issue directly reviewed by the US Supreme Court was included in my remand analysis.\nCoding constitutional arguments as either state or federal can be complicated at times, and I\nfollowed three basic rules (Price 2013, 340\xe2\x80\x9341; 2015, 1412\xe2\x80\x9313). First, briefs are typically separated\ninto different legal points, and where the point heading or point clearly identifies the argument as\neither federal or state based alone, then it is coded accordingly. This holds true even in arguments\nthat are presented as solely state constitutional issues but rely heavily on federal cases and\ndoctrines. Second, where the point cites both federal and state constitutional provisions, I follow\nFarole\xe2\x80\x99s (1998, 33) standard, with the state citation treated as filler where it is simply presented\nas part of a string cite without any independent development or rationale. However, where the\nreference to a state provision is accompanied by some kind of supporting argument, even if vague,\nit is coded as a separate state argument even if it is not included in a separate point. Third, at\ntimes an argument fails to specify a constitutional basis for an argument. Instead, a point may\nsimply refer generally to a \xe2\x80\x9cright to counsel,\xe2\x80\x9d for example, and I examined the precedents offered\nto determine the coding. Where the precedent is dominated by federal cases, I code the argument\nas federal. Where the precedent points to state cases primarily, I follow Esler\xe2\x80\x99s (1994) method of\nexamining those decisions, and if the precedents appeared to rely on independent analysis of the\nstate constitution, I code the argument as state based. Given the assumption that federal law will\ntend to dominate constitutional claims, my rules are intended to err in favor of state coding, where\narguments are vaguely presented. Additionally, I coded certain content measures, taking guidance\nfrom state constitutional theory (State v. Gunwall 1986; Tarr 1998, 182\xe2\x80\x9383). Ultimately I coded\nthe following elements for their presence or absence: textual differences between constitutions,\ndiscussion of state constitutional history, prior state constitutional precedent, examples of judicial\nfederalism from the home state, precedent from other states, examples of judicial federalism from\nother states, structural arguments, matters of state and local concern, and public attitudes. The\ntotal number of factors referenced in an argument is used as a rough idea of the complexity of\nthe legal claim. However, I make no claim that a certain number of these factors makes a \xe2\x80\x9cgood\xe2\x80\x9d\nargument or that all are strictly \xe2\x80\x9clegal\xe2\x80\x9d; it is only an indicator of the nonpolicy arguments used by\nlawyers in state constitutional claims.\n\nOn Remand | 75\n\n\x0cDiscussion\nAggregate Trends\nFederal Arguments State Arguments Total\nInitial Brief\n\n32 (84%)\n\nRemand Brief 10 (25%)\nTotal\n\n6 (16%)\n\n38\n\n30 (75%)\n\n40\n\n423678\n\nTable 1: Aggregate arguments.\n\nTable 1 demonstrates the expected breakdown in broad terms: state arguments were uncommon\nuntil the negative SCOTUS action suggested that lawyers look elsewhere for protection. Six of the\nthirty-eight arguments at the initial stage were state-based claims, and of these, only two were the\nprimary argument. In the remaining four cases, the state claim was relatively minor and secondary\nto the federal claim. Only on remand did lawyers tend to discover state constitutional claims.\nAs with George Upton\xe2\x80\x99s case, these state claims were ignored until federal retrenchment forced\nlawyers to look elsewhere. While a fairly diverse set of issues is present, two areas are dominant:\nspeech (29 percent) and search and seizure (23 percent).\n\nInitial Appeal\nThe fact that federal claims dominated at the initial appeal is unsurprising. This fits with existing\nresearch findings that state constitutional rights claims are relatively rare in both litigant\narguments as well as court decisions. Additionally, the structure of this study focuses only on cases\nwhere a federal rights claim was viable enough for a state supreme court to sustain it and thus\nset the stage for SCOTUS review. This is not to say that litigants ignored the existence of state\nconstitutions; in seventeen (53 percent) of the federal arguments, they did cite the state provision.\nThis citation, however, amounted to little more than simply noting the existence of the provision.\nLitigants in six cases did make clear state constitutional arguments.\nIn three of these initial state claims, the likely negative trend in federal protection was evident,\nand thus the arguments sought to provide an alternative path early. The clearest signal of federal\nretrenchment was present in Pap\xe2\x80\x99s A.M. v. City of Erie (1998) involving a challenge to a local\nregulation of nude dancing. While the brief argued that decisions from two decades prior\n76 | On Remand\n\n\x0csuggested a degree of protection, it had to admit that SCOTUS was moving in a different direction\ngiven the decision in Barnes v. Glen Theaters (1991) to uphold a substantially similar statute. In\nbarely a page, the claimant acknowledged that Barnes upheld a similar law but stressed that it\nlacked a majority and detailed how SCOTUS broke into three parts, with the key difference being\nover how to apply the standard for regulating symbolic conduct. The claimant turned to a recent\nfederal decision holding that the narrowest decision should control and proceeded to argue that\nthe focus of the inquiry then should turn on Erie\xe2\x80\x99s sole focus on the moral disapproval of nude\ndancing. Realizing that this argument might be a long shot, the claimant turned to a state claim\nthat developed some classic elements of constitutional arguments. This included noting the fact\nthat the Pennsylvania provision predated and influenced the First Amendment, relying on a few\n9\n\nrecent state decisions expanding some state constitutional protections. The key to this argument,\nhowever, turned not on state constitutional law but on the problematic trend toward federal\nretrenchment:\nFirst Amendment jurisprudence in this area seemed somewhat clear prior to the Supreme Court\xe2\x80\x99s\ndecision in Barnes. Although no opinion in Barnes garnered a majority, the case has muddied First\nAmendment legal waters. In interpreting the state Constitution, this Court may look to decisions\nof other state courts as well as to federal court decisions both pre- and post-Barnes. However,\nthe most cogent analysis of nude dancing as protected by freedom of expression is contained in\n10\n\nJustice White\xe2\x80\x99s dissenting opinion in Barnes.\n\nThe claimant thus invoked avoidance language: SCOTUS has retracted protection, and the state\ncourt should resist by applying the logic of the dissenting opinion. More attention is paid to\nWhite\xe2\x80\x99s logic than was given to the fractured opinions of the Barnes majority. Utilizing, in part,\ndecisions from Colorado, Oregon, and Washington, the claimant argued that this dissenting\nopinion provided the better foundation for a state constitutional rule that would treat a nude\ndancing ordinance as content-based regulation of expression.\nSimilarly, two other arguments appeared to anticipate federal retrenchment. In State v.\nHershberger (1989), the claimant asserted that the application of a vehicle signs requirement\ninfringed on the free exercise rights of the Amish. While SCOTUS had not yet resolved the case\nthat would dramatically limit federal protection (Employment Division v. Smith 1990), the claimant\nnoted that it had recently affirmed a similar Amish religious exemption issue only by an equally\ndivided vote, signaling a deep division on the issue (Jensen v. Quaring 1985). The claimant spent\nmost of the state argument demonstrating that the state court could provide greater protection,\nthat other states had done similarly in a variety of rights areas, and that the textual differences\nbetween the state and federal provisions \xe2\x80\x9ctends to cut against the strict separation of belief\n\n9. Pap\xe2\x80\x99s A.M. v. City of Erie, 719 A.2d 273 (Pa. 1998), appellant\xe2\x80\x99s initial brief at 21\xe2\x80\x9323.\n10. Pap\xe2\x80\x99s A.M., appellant\xe2\x80\x99s initial brief at 23.\nOn Remand | 77\n\n\x0c11\n\nfrom conduct\xe2\x80\x9d under the former.\n\n12\n\nSimilarly, in People v. Conyers (1980),\n\nthe claimant argued\n\na supplementary state claim that impeachment use of silence was unconstitutional, and while\nthe US Supreme Court had not ruled on the precise circumstances involved there, it had shown\napproval for the similar use of illegally obtained statements.\nBoth federal retrenchment and state encouragement played a role in State v. Recuenco (2005). The\ncase centered on whether violations of the right to have a jury determine all aspects of the charged\ncrime can be harmless error. SCOTUS had shown a history of embracing harmless-error analysis\nfor various criminal procedure rights, noting that \xe2\x80\x9cmost constitutional errors can be harmless\xe2\x80\x9d\n(Neder v. U.S. 1999, 8). In addition to this federal retrenchment, the Washington Supreme Court\nhad signaled broad interest in state constitutional law in general (Price 2013) and had issued\ndecisions noting how the state jury provision grants broader protection in some areas. Influenced\nby these signals from the Washington court, the claimant provided a well-developed independent\nstate argument that stressed the textual differences between the state and federal provisions, the\nexpansive Washington precedent, and structural differences to justify an independent state rule.\nApparently, the claimant was so confident that this original state argument was sufficient that on\nremand, the claim was simply reasserted via reference to the initial appeal.\nInterestingly, two initial arguments were solely state based, lacking any federal claim, and\nultimately only ended up before SCOTUS through the weaknesses of the state court\xe2\x80\x99s decision.\nIn Witters v. State (1984),\n\n13\n\nthe state denied funding for a course of Bible study. Instead of relying\n14\n\non the federal test (Lemon v. Kurtzman 1971), the state\n\njustified the decision based solely on\n\nthe state constitutional Blaine Amendment, which prohibited any public money from paying for a\n15\n\ncourse of religious study. The state relied on a number of Washington Supreme Court decisions\nimposing a strict prohibition of state aid to religious education under this provision even if such\n\n11. State v. Hershberger, 444 N.W.2d 282 (Minn. 1989), appellant\xe2\x80\x99s initial brief at 41.\n12. People v. Conyers, 49 N.Y.2d 174 (1980), defendant-respondent\xe2\x80\x99s initial brief.\n13. Witters v. State, Commission for the Blind, 102 Wash.2d 624 (1984), petitioner\xe2\x80\x99s initial brief.\n14. Witters is an unusual case in that the issue revolved around competing constitutional limitations\nwith the claimant asserting a free-exercise argument and the state using the establishment clause to\ncombat the issue. Because SCOTUS only dealt with the later claim, I used the state\xe2\x80\x99s establishment\nclaim for this study, as the state was arguing for a broader constitutional rule.\n15. Washington Constitution, Art. I, Sec. 11 reads in part, \xe2\x80\x9cAbsolute freedom of conscience in all matters\nof religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall\nbe molested or disturbed in person or property on account of religion. . . . No public money or\nproperty shall be appropriated for or applied to any religious worship, exercise or instruction, or the\nsupport of any religious establishment.\xe2\x80\x9d{~?~AQ: Page(s)?}As with earlier, constitutional provisions\nhave no page numbers.\n78 | On Remand\n\n\x0c16\n\nassistance was allowed under the First Amendment.\n\nDespite this fact, the Washington Supreme\n\nCourt proceeded to base its decision on federal doctrine and upheld the denial (Witters v. State,\nCommission for the Blind 1984). Similarly, in People v. Caballes (2003), the claimant carefully\npresented only a state claim that a dog sniff during a traffic stop was unconstitutional presumably\nbecause the US Supreme Court had rejected similar dog sniffs claims previously (United States\nv. Place 1983). Unlike Witters, the claimant did rely heavily on federal doctrine for the logic of\nthe argument even though it was careful to avoid reliance on the Fourth Amendment. The Illinois\nSupreme Court failed to make any clear statement as to the constitutional basis for its decision,\nand thus SCOTUS assumed jurisdiction. The experiences in these two cases highlight the fact that\nlegal framing alone cannot control how state courts deal with the issue even if it can influence\nthose courts.\nThe initial stage demonstrates the expected dominance of federal rights doctrine. Only in a few\ninstances were state arguments presented, and nearly always because the writing was on the wall,\nfederal retrenchment seemed likely. In two cases, the state court had signaled some interest in\nstate constitutional doctrine, and this likely contributed to those arguments.\n\nOn Remand\nAs table 1 illustrates, federal arguments were made on remand but at a much lower rate. Nearly all\nthese federal claims came in consideration cases, which is as expected given that SCOTUS issued\na remand to consider some new precedent but made no substantive ruling. Typically, these federal\nclaims focused on distinguishing the new precedent. For example, when SCOTUS reversed and\nremanded the Ohio Supreme Court\xe2\x80\x99s invalidation of a hate crimes enhancement statute in light of\nWisconsin v. Mitchell (1993), the claimant\xe2\x80\x99s federal analysis sought to distinguish the Ohio law from\nthat of Wisconsin. The claimant argued that unlike Wisconsin, Ohio only applied its enhancement\nstatute to five crimes, and this fact made the case a content-based statute within fighting words\n17\n\nand should be invalidated for the same reason as the law in R.A.V. v. City of St. Paul (1992).\n\nThree claimants failed to make a state argument on remand. In one, a consideration case, the\n18\n\nclaimant simply asserted that the new SCOTUS precedent did not require a different result. Two\n\n16. State Higher Educ. Assistance Auth. v. Graham, 84 Wash.2d 813 (1974); Weiss v. Bruno, 82 Wash.2d 199\n(1973).\n17. State v. Wyant, 624 N.E.2d 722 (Ohio 1994), appellant\xe2\x80\x99s brief on remand at 9\xe2\x80\x9317.\n18. Desimone v. State, 996 P.2d 405 (Nev. 2000), appellant\xe2\x80\x99s supplemental points and authorities at 1\n(\xe2\x80\x9cNothing in United States v. Ursery compels this court to reverse its decision . . . and the judgment\npreviously entered by this court should be reinstated.\xe2\x80\x9d)\nOn Remand | 79\n\n\x0cclaimants in reversal cases simply abandoned the issue, with one turning to a nonconstitutional\n19\n\nclaim around evidentiary law and the other asserting previously undecided federal constitutional\n20\n\nissues even though the state claim was not foreclosed until two months after the brief was filed.\n\nEvery other case on remand not only presented a state claim but relied almost exclusively on state\nlaw.\n\nFigure 1: Legal argument frequency\n\nFigure 1 depicts the frequency of types of legal arguments offered to support a state constitutional\nclaim. A number of factors rarely appeared in claimant arguments. For example, only one argument\nutilized a public attitude claim. A case involving whether funding of religious vocational training\nviolated the state\xe2\x80\x99s establishment clause noted that voters had overwhelmingly rejected a\nconstitutional amendment designed to bring the state constitutional language in line with the\n21\n\nfederal clause.\n\nSimilarly, state interest and structure arguments were uncommon. One example\n\n19. Fensterer v. State, 509 A.2d 1106 (Del. 1986), defendant below-appellant\xe2\x80\x99s brief on remand.\n20. Commonwealth v. Hicks, 596 S.E.2d 74 (Va. 2004), appellee\xe2\x80\x99s brief on remand; Elliot v.\nCommonwealth, 593 S.E.2d 263 (Va. 2004), declaring that the state constitution provided no greater\nprotection for speech.\n21. Witters v. State, Commission for the Blind, 112 Wash.2d 363 (1989), respondent\xe2\x80\x99s brief on remand at\n25.\n80 | On Remand\n\n\x0cof a structural argument came from a Florida case where a man was not informed that an attorney\nwas available to him. On remand, the claimant argued that the federal rule should not be applicable\nin Florida because prosecutors have unilateral power to file criminal charges and the federal rule\n22\n\nwould allow them to delay charging a defendant in order to deny access to counsel.\n\nTextual\n\ndifference arguments were found in a relatively large number of arguments, likely because such\narguments are relatively easy. State constitutional history, on the other hand, is harder to utilize\nbecause such history is not practiced widely or of general knowledge. Such arguments are made\nprimarily where state courts themselves have discussed the history in question. For example, a\nWisconsin claimant arguing for the invalidation of the state\xe2\x80\x99s hate crimes law relied heavily on a\nstate justice\xe2\x80\x99s concurring opinion establishing that the textual differences in the state constitution\nwere intended to suggest a broader level of protection.\n\n23\n\nInterestingly, other state law was not\n\ncommonly discussed.\nAs lawyers are trained to reason from legal precedents, it is unsurprising that they utilize home\nstate law most frequently. Interestingly, nearly half of the state arguments noted examples of\njudicial federalism from their state supreme court. By noting their court\xe2\x80\x99s history of rejecting\nfederal law, the claimants likely seek to reassure justices that they will not be doing anything\nwrong this time. This is particularly important in states where the court has a history of resistance\nto judicial federalism. For example, all three Ohio remand briefs, where judicial federalism was\nrare (Tarr and Porter 1988, 124\xe2\x80\x9383; Williams 2009, 197), noted a recent decision interpreting\nthe state\xe2\x80\x99s right-to-bear-arms provision as an individual right.\n\n24\n\nIn nearly two-thirds of the\n\nstate arguments, claimants discussed state decisions on point with the legal issue of concern.\nA few of these arguments took the form of examples of precedent expanding state protection\n25\n\nin the area at issue. For example, in Immuno AG v. Moor-Jankowski (1991),\n\nthe issue involved\n\nconstitutional limitations on libel law, and the remand brief noted two examples where the New\nYork Court of Appeals expanded state speech doctrine, one of which specifically related to libel\nlaw. Interestingly, both of these precedents were available at the initial stage, but no state claim\nwas made then. Other claimants noted statutory or common-law rules as a means to demonstrate\n\n22. Haliburton v. State, 514 So.2d 1088 (Fla. 1987), supplemental brief of appellant on remand at 8.\n23. State v. Mitchell, 504 N.W.2d 610 (Wis. 1993), defendant-appellant\xe2\x80\x99s memorandum of law on remand\nat 9\xe2\x80\x9311.\n24. Wyant, appellant\xe2\x80\x99s brief on remand at 8; State v. Robinette, 685 N.E.2d 762 (Ohio 1997), appellee\xe2\x80\x99s\nbrief on remand at 10; American Association of University Professors, Central State University\nChapter v. Central State University, 717 N.E.2d 286 (Ohio 1999), appellee / cross appellant\xe2\x80\x99s brief on\nremand at 13\xe2\x80\x9314. The opinion cited was Arnold v. City of Cleveland, 67 Ohio St.3d 35 (1993).\n25. Immuno AG v. Moor-Jankowski, 77 N.Y.2d 235 (1991), defendant-respondent\xe2\x80\x99s brief on remand at\n45\xe2\x80\x9346, 47\xe2\x80\x9348 (citing Arcara v. Cloud Books, Inc., 503 N.E.2d 492 [N.Y. 1986] and O\xe2\x80\x99Neill v. Oakgrove\nConstruction, Inc., 523 N.E.2d 277 [N.Y. 1988]).\nOn Remand | 81\n\n\x0ca state law commitment to the more protective rule. Often, the claimant sought to concoct a\nprecedent that supposedly provided a controlling interpretation of the state provision without\n26\n\ndiscussion. One of the clearest examples of this is in Van Arsdall v. State (1987)\n\non the issue of\n\nharmless-error analysis from the violation of a defendant\xe2\x80\x99s confrontation rights. The argument\nrested heavily on a precedent that rejected harmless error in a similar case on federal law grounds\nbut that also cited the state constitutional provision. The claimant presented this cite as creating\na controlling state precedent that harmless error was inappropriate regardless of any changes in\nfederal law.\n\nFigure 2: Total number of arguments\n\nFigure 2 provides a rough complexity measure by totaling the number of legal factors cited\nby each rights claimant. Two-thirds of the claimants noted two or fewer factors in their state\nconstitutional arguments, with the most common combinations looking to textual differences and\nhome state law, as noted above. Interestingly, of the five briefs to note four or more of the factors,\n27\n\nthree\n\nwere cases with a state argument on initial appeal, suggesting that those lawyers may have\n\n26. Van Arsdall v. State, 524 A.2d 3 (Del. 1987), defendant-appellant\xe2\x80\x99s brief on remand.\n27. People v. Caballes, 851 N.E.2d 26 (Ill. 2006), defendant-appellant\xe2\x80\x99s brief on remand; State v.\nRecuenco, 163 Wash.2d 428 (2008), petitioner\xe2\x80\x99s brief on remand; Witters, respondent\xe2\x80\x99s brief on\n82 | On Remand\n\n\x0cbeen better prepared to expand on those arguments than lawyers who had to create a whole new\nargument from scratch. Figures 1 and 2 demonstrate that legal factors are certainly present in\nstate constitutional arguments on remand, but most are utilized as an attempt to shore up the\nstate court\xe2\x80\x99s initial supportive federal decision. The clearest evidence for this claim is the fact\nthat virtually all of this same legal evidence was available on initial appeal, and yet twenty-four of\nthe thirty arguments pressing state claims on remand were not mentioned in the initial appeal.\nRemand briefs are responding not to changes in state legal factors but to changes in federal law,\nand it is the policy underlying these changes that received significant attention.\nWhile remand arguments almost always engaged in some of the legal arguments we might\ntraditionally expect lawyers to make, nine remand claimants (30 percent) attacked the Supreme\nCourt as being reckless in its actions. Some were relatively gentle and complained of how\nSCOTUS\xe2\x80\x99s decision was a \xe2\x80\x9cradically changed approach\xe2\x80\x9d or that its decisions were \xe2\x80\x9ccuriously\n28\n\ninconsistent.\xe2\x80\x9d\n\nOther claimants were more dramatic in their attacks. In a search and seizure case,\n\nthe claimant argued that recent federal decisions were \xe2\x80\x9ceviscerating the Fourth Amendment\xe2\x80\x99s\nprotection, culminating in last term\xe2\x80\x99s two rulings leaving only tattered remains of the federal\n29\n\nexclusionary rule.\xe2\x80\x9d\n\nA claimant in another search and seizure case stressed the progressive\n\ndiminution of rights at the federal level and wondered, given the major federal retrenchment,\n\xe2\x80\x9cwhat liberty interest and privacy rights have survived under the Fourth Amendment. It is thus left\nto [the Ohio Supreme Court] to determine whether any meaningful protections for Ohio citizens\n30\n\nshall remain.\xe2\x80\x9d\n\nThe single strongest attack on the Supreme Court came in a speech case from New\n\nYork:\nOver the past decades the Supreme Court of the United States has slowly retreated from the\nexpanded frontiers of liberty so painstakingly established by the \xe2\x80\x9cWarren\xe2\x80\x9d Court. The Supreme\nCourt has radically revised traditional notions about the meaning and purpose of our Bill of\nRights. Widespread inhibition of human rights resulting from a systematic repression of individual\nliberty has been seen by many of our high state courts as alarming and intolerable. Consequently,\ntoday state courts across the country are construing their own constitutions as providing broader\n31\n\nindividual protections than once afforded by their federal counterparts.\n\nremand. Part of the reason for more complex arguments may also be the fact that two of these cases\nwere influenced by the Washington Supreme Court\xe2\x80\x99s strong adherence to a specific approach to\nstate constitutional law (Price 2013).\n28. State v. Carter, 596 N.W.2d 654 (Minn. 1999), appellant\xe2\x80\x99s brief on remand at 6; People v. Belton, 55\nN.Y.2d 49 (1982), appellant\xe2\x80\x99s brief on remand at 5.\n29. Commonwealth v. Sheppard, 476 N.E.2d 541 (Mass. 1985), appellant\xe2\x80\x99s brief on remand at 16.\n30. Robinette, appellee\xe2\x80\x99s brief on remand at 19.\n31. People v. Ferber, 57 N.Y.2d 256 (1982), appellant\xe2\x80\x99s brief on remand at 6.\nOn Remand | 83\n\n\x0cSuch claims add little to the weight of a legal argument and seem intended to undermine the\nnatural deference toward SCOTUS in matters of constitutional law. If SCOTUS is acting in a\nreckless and dismissive manner, deference is undeserved and may actually be dangerous to\nthe state\xe2\x80\x99s citizens. State courts have a duty to aggressively defend their citizens against these\nirrational actions through their state constitutions. While these kinds of overt attacks on\nSCOTUS\xe2\x80\x99s legitimacy are not the norm, nearly every remand argument attacked the policy behind\nthe changes in federal law. These policy attacks form the most consistent argument in remand\ncases.\nPolicy arguments drew heavily on the logic of the US Supreme Court dissenters with secondary\nreliance on criticism from law reviews and other state courts. The most extreme example of this\npolicy dominance came in Commonwealth v. Sheppard (1985), involving the good-faith exception to\nthe exclusionary rule. The claimant argued that Mapp v. Ohio (1961) required exclusion of evidence\nto deter unconstitutional governmental behavior and, relying heavily on Justice Brennan\xe2\x80\x99s dissent\nfrom recognizing the good-faith exception (United States v. Leon 1984), that such deterrence is\nrequired for any abuse of constitutional rights regardless of whether the error was made by\nthe courts or the police. The concern of search and seizure is the protection of the individual\xe2\x80\x99s\nrights and as well as the integrity of the judiciary itself even though \xe2\x80\x9ca majority of the current\nSupreme Court has abandoned the concept of judicial integrity.\xe2\x80\x9d\n\n32\n\nBrennan\xe2\x80\x99s dissenting opinions\n\ncrop up in a number of other cases, such as People ex rel. Arcara v. Cloud Books (1986), where\nthe claimant quoted his dissenting opinion extensively to demonstrate how the SCOTUS doctrine\nwas a \xe2\x80\x9cprogressive denuding of First Amendment Rights\xe2\x80\x9d and how \xe2\x80\x9csexually explicit but nonobscene [speech] has lost all but the surface veneer of its First Amendment Protection.\xe2\x80\x9d\n\n33\n\nOther\n\ndissenting justices received similar attention. On remand in Pap\xe2\x80\x99s A.M. v. City of Erie (2002), the\nclaimant stressed an earlier dissent from Justice White and stated that \xe2\x80\x9cJustice Stevens\xe2\x80\x99 dissent [in\nthe SCOTUS reversal] is also extremely well reasoned and appropriately critical of the Supreme\nCourt\xe2\x80\x99s plurality opinion\xe2\x80\x9d to demonstrate how the Supreme Court\xe2\x80\x99s fractured rulings on regulation\nof nude dancing establishments were flawed and unpersuasive.\n\n34\n\nA claimant in a right to counsel\n\ncase from Texas similarly utilized Justice Breyer\xe2\x80\x99s dissenting opinion from the reversal to show\nhow the Supreme Court\xe2\x80\x99s new decision, which the brief described as a \xe2\x80\x9crejection of national\nconsensus of court authority\xe2\x80\x9d on the Sixth Amendment, \xe2\x80\x9cwould emasculate the protections of the\n35\n\nguarantee of a \xe2\x80\x98right to counsel.\xe2\x80\x99\xe2\x80\x9d\n\nTwo search cases complained of trends in federal search law, but in opposite directions. In one\n\n32. Sheppard, defendant\xe2\x80\x99s brief on remand at 22.\n33. People ex rel. Arcara v. Cloud Books, 68 N.Y.2d 296 (1986), appellant\xe2\x80\x99s brief on remand at 23, 24.\n34. Pap\xe2\x80\x99s A.M. v. City of Erie, 812 A.2d 591 (Pa. 2002), appellant\xe2\x80\x99s brief on remand at 16.\n35. Cobb v. State, 85 S.W.2d 258 (Tex. Crim. App. 2002), appellant\xe2\x80\x99s brief on remand at 10, 11.\n84 | On Remand\n\n\x0ccase, the claimant complained that SCOTUS decisions were based on \xe2\x80\x9clegal fictions\xe2\x80\x9d as opposed\n36\n\nto the actual facts of the case \xe2\x80\x9cso as to better enable it to draw \xe2\x80\x98bright lines.\xe2\x80\x99\xe2\x80\x9d\n\nAnother claimant,\n\nhowever, complained that the Supreme Court\xe2\x80\x99s flexible totality of the circumstances test simply\nreinforced abusive practices, that the state court should adopt bright-line tests to correct the\ndisparity of power between police and citizens, and that such a bright-line rule is easier for the\n37\n\npolice to comply with anyway.\n\nIn a case on standing to challenge searches, another claimant\n\nargued that the state court\xe2\x80\x99s original decision would lead to better policing because it would hold\npolice accountable for all illegal searches where SCOTUS had adopted a rule limiting the right to\n38\n\nchallenge a search to those with a reasonable expectation of privacy, a subjective standard.\n\nFinally, claimants invoked consequentialist arguments about the negative effects of SCOTUS\xe2\x80\x99s\n39\n\ndoctrinal shift. For example, a Florida claimant in Haliburton v. State (1987)\n\ndiscussed the\n\nstructural difference in Florida that gave broad latitude to prosecutors and how the federal rule\non when counsel attached would permit prosecutors to time the filing of charges to avoid the\npresence of counsel during the criminal investigation. After SCOTUS held that statements made\nto a probation officer were not subject to Miranda warnings, a claimant stressed the danger of this\nrule, noting that \xe2\x80\x9cdefense attorneys in Minnesota will understandably tell their probationer clients\nthat whenever they even remotely suspect that information requested by their probation officers\nmay be incriminating they should no longer discuss such information with the probation officer\nand demand to see their attorney at once.\xe2\x80\x9d\n\n40\n\nThis unfortunate outcome of SCOTUS\xe2\x80\x99s decision\n\nwould undermine the purpose of probation and complicate the duties of probation officers more\nthan necessary, something the state court could easily correct. Thus the warning was that state\ncourts had a duty to correct the negative policy effects of the changing federal doctrine.\n\nDo Courts Respond?\nWhile this chapter is focused on exploring how lawyers argue cases, some attention to outcomes\nis reasonable. After all, if state courts never accept a state argument on remand, lawyers would\nbe less inclined to offer such claims. Any implication drawn from outcomes is limited, however,\nby the fact that many variables influence judicial decisions. Of the thirty cases where the claimant\nasserted a state claim on remand, fourteen (47 percent) were accepted by the state supreme court.\n\n36. People v. Long, 359 N.W.2d 194 (Mich. 1984), defendant\xe2\x80\x99s brief on remand at 23.\n37. Robinette, appellee\xe2\x80\x99s brief on remand at 14\xe2\x80\x9329.\n38. Carter, appellant\xe2\x80\x99s brief on remand.\n39. Haliburton, supplemental brief of appellant on remand at 8.\n40. State v. Murphy, 380 N.W.2d 766 (Minn. 1986), appellant\xe2\x80\x99s brief on remand at 30\xe2\x80\x9331.\nOn Remand | 85\n\n\x0cIn two other cases, the claimant won on alternative grounds. For the purposes of this study, I treat\nany decision that did not accept a state claim as a rejection even if it was not fully considered by\nthe court.\nPerhaps surprisingly, there was little concern with the failure to raise or preserve a state\nconstitutional claim. The Michigan Supreme Court did express skepticism for the fact that the\nclaimant \xe2\x80\x9cdid not raise any state constitutional claims until he was before\xe2\x80\x9d SCOTUS, implying\nthat it was a transparent attempt to avoid federal jurisdiction (People v. Long 1984, 197n4). Most\nstate supreme court rejections expressed a preference for interpreting the state provision in\nlockstep with the federal provision, meaning that state law was identical to the federal doctrine.\nThe Illinois Supreme Court engaged in an extended analysis of its history of refusing to interpret\nstate constitutional rights independently, concluding that \xe2\x80\x9cwe reaffirm our commitment to limited\nlockstep analysis not only because we feel constrained to do so by the doctrine of stare decisis,\nbut because the limited lockstep approach continues to reflect our understanding of the intent of\nthe framers of the Illinois Constitution of 1970. This court\xe2\x80\x99s jurisprudence of state constitutional\nlaw cannot be predicated on trends in legal scholarship, the actions of our sister states, a desire\nto bring about a change in the law, or a sense of deference to the nation\xe2\x80\x99s highest court\xe2\x80\x9d (People\nv. Caballes 2006, 44\xe2\x80\x9345). The Minnesota Supreme Court similarly declared that its initial decision\nwas based on the implicit assumption that the federal and state provisions were coextensive, and it\nsaw no reason to alter that decision on remand even though it had specifically ordered briefing on\nthe state constitution (State v. Carter 1999). The Texas Court of Criminal Appeals not only rejected\nthe state argument but criticized the claimant for invoking federal dissenters: \xe2\x80\x9cAppellant must do\nmore than merely argue that the Supreme Court majority \xe2\x80\x98got it wrong,\xe2\x80\x99 the dissent \xe2\x80\x98got it right,\xe2\x80\x99\nand therefore, Texas courts should follow the dissent rather than the Supreme Court majority on\nthis constitutional issue\xe2\x80\x9d (Cobb v. State 2002, 267).\nIn nearly half of the cases, the state court accepted the state claim and at times appeared\nto embrace an argument for avoiding federal retrenchment. In siding with George Upton, the\nMassachusetts Supreme Judicial Court held that the federal totality of the circumstances test\n\xe2\x80\x9clack[ed] the precision that we believe can and should be articulated in stating a test for\ndetermining probable cause\xe2\x80\x9d (Commonwealth v. Upton 1985, 556). The Florida Supreme Court\ndirectly rejected the policy of a recent SCOTUS decision with primary reliance on Justice John Paul\nStevens\xe2\x80\x99s dissent in that decision (Haliburton v. State 1987, 1090). Twice the Washington Supreme\nCourt offered a limiting interpretation of the intervening SCOTUS decision but then turned to\nstate law as firmer ground for the decision. In one case involving a recent SCOTUS change in\nfree exercise of religion doctrine, the Washington court admitted it could distinguish this decision\nbut that it would \xe2\x80\x9ceschew the \xe2\x80\x98uncertainty\xe2\x80\x99 of [SCOTUS\xe2\x80\x99s decision] and rest our decision also on\nindependent\xe2\x80\x9d state grounds (First Covenant Church v. City of Seattle 1992, 223). Similarly, in a\ncase involving recent death penalty jurisprudence, the Washington court responded to its own\n\n86 | On Remand\n\n\x0cdissenting justice that if the majority happened to misunderstand federal doctrine, the same result\nwas required under state law (State v. Bartholomew 1984).\nThis finding suggests that state courts are open, some of the time, to direct avoidance of recent\nSCOTUS decisions. That occasionally, the policy arguments work. Of course, this is not to argue\nthat state constitutional decisions lack legal legitimacy. Policy-based arguments have always\nbeen an element of legal decision-making. Nor do I mean to imply that these decisions rely\nexclusively on such grounds. For example, the Washington and Minnesota decisions rejecting\nfederal retrenchment in free exercise engaged in an analysis of text, history, and prior judicial\nexperience in addition to any policy objections.\n\nConclusion\nThe findings here fit with the expectations. Lawyers rarely offer state constitutional arguments\nwithout some strong signal\xe2\x80\x94the strongest signal being the rejection of a federal rights argument\nby SCOTUS. As this forecloses the area completely, or nearly so, claimants have little choice but\nto either abandon the issue or turn to state constitutions as a second-best alternative. And that\nis how lawyers treat state constitutions, as second best. Lawyers on remand discover a state\nalternative that tends to focus as much or more on the policy critiques of SCOTUS as state legal\nsources.\nThis has two broader implications, first for the study of strategies after courtroom defeats. Too\noften, scholars treat a definitive SCOTUS decision as the end of a dispute. Social movements\nhave found ways to turn courtroom losses into benefits in a variety of ways. Regular claimants,\nhowever, have less use for such benefits, and understanding how they react to losses expands\nour knowledge of strategic legal action after losses. Naturally, scholars focus on the level of\ndecision-making that has the broadest potential policy impact. As federal constitutional law\napplies nationally, the focus tends to be there. Claimants, however, have a number of legal options\navailable to them, and as this study shows those claims are often viable means of achieving victory.\nThe policy impact will obviously be more limited (to within a single state), but the claimant still\nwins her narrow goal whether it be reversing an administrative decision, invalidating a state\nstatute, or reversing a criminal conviction. This suggests the value of better understanding the\nfull range of legal claims that a litigant develops to evaluate the broader context of litigation.\nThese strategies may include constitutional ones\xe2\x80\x94whether federal or state\xe2\x80\x94but also statutory,\nadministrative, or even common-law alternatives.\nThe second implication is for the study of state constitutional law. Studies have long found that\nstate constitutional rights law is underdeveloped. State courts infrequently rely on state rights\nOn Remand | 87\n\n\x0cprovisions, preferring to rely on federal doctrine. 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(\xe2\x86\xb5 Return)\nNeJaime, Douglas. 2011. \xe2\x80\x9cWinning through Losing.\xe2\x80\x9d Iowa Law Review 96: 941\xe2\x80\x931012. (\xe2\x86\xb5 Return)\nPap\xe2\x80\x99s A.M. v. City of Erie, 719 A.2d 273 (Pa. 1998). (\xe2\x86\xb5 Return)\nPeople v. Caballes, 851 N.E.2d 26 (Ill. 2006). (\xe2\x86\xb5 Return)\nPeople v. Long, 359 N.W.2d 194 (Mich. 1984). (\xe2\x86\xb5 Return)\nPickerill, J. Mitchell. 2004. Constitutional Deliberation in Congress: The Impact of Judicial Review in\na Separated System. Durham, NC: Duke University Press. (\xe2\x86\xb5 Return)\nPrice, Richard S. 2013. \xe2\x80\x9cArguing Gunwall: The Effect of the Criteria Test on Constitutional Rights\nClaims.\xe2\x80\x9d Journal of Law and Courts 1: 331\xe2\x80\x9361. (\xe2\x86\xb5 Return)\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2015. \xe2\x80\x9cLawyers Need Law: Judicial Federalism, State Courts, and Lawyers in Search and\nSeizure Cases.\xe2\x80\x9d Albany Law Review 78: 1393\xe2\x80\x93458. (\xe2\x86\xb5 Return)\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2017. \xe2\x80\x9cLinde\xe2\x80\x99s Legacy: The Triumph of Oregon Constitutional Law, 1970\xe2\x80\x932000.\xe2\x80\x9d Albany Law\nReview 80: 1541\xe2\x80\x93602. (\xe2\x86\xb5 Return)\n\n90 | On Remand\n\n\x0cPrice, Richard S., and Thomas M. Keck. 2015. \xe2\x80\x9cMovement Litigation and Unilateral Disarmament:\nAbortion and the Right to Die.\xe2\x80\x9d Law & Social Inquiry 40: 880\xe2\x80\x93907. (\xe2\x86\xb5 Return)\nR.A.V. v. City of St. Paul, 505 U.S. 377 (1992). (\xe2\x86\xb5 Return)\nSchmidt, Christopher W. 2015. \xe2\x80\x9cLitigating against the Civil Rights Movement.\xe2\x80\x9d University of\nColorado Law Review 86: 1174\xe2\x80\x93220. (\xe2\x86\xb5 Return)\nSegal, Jeffrey A., and Harold J. Spaeth. 2002. The Supreme Court and the Attitudinal Model Revisited.\nNew York: Cambridge University Press. (\xe2\x86\xb5 Return)\nSomin, Ilya. 2015. The Grasping Hand: Kelo v. New London & the Limits of Eminent Domain. Chicago:\nUniversity of Chicago Press. (\xe2\x86\xb5 Return)\nSpinelli v. U.S., 393 U.S. 410 (1969). (\xe2\x86\xb5 Return)\nState v. Bartholomew, 101 Wash.2d 631 (1984). (\xe2\x86\xb5 Return)\nState v. Carter, 596 N.W.2d 654 (Minn. 1999). (\xe2\x86\xb5 Return)\nState v. Gunwall, 106 Wash.2d 54 (1986). (\xe2\x86\xb5 Return)\nState v. Hershberger, 444 N.W.2d 282 (Minn. 1989). (\xe2\x86\xb5 Return)\nState v. Recuenco, 154 Wash.2d 156 (2005). (\xe2\x86\xb5 Return)\nSutton, Jeffrey S. 2009. \xe2\x80\x9cWhy Teach\xe2\x80\x94and Why Study\xe2\x80\x94State Constitutional Law.\xe2\x80\x9d Oklahoma City\nUniversity Law Review 34: 165. (\xe2\x86\xb5 Return)\nTarr, G. Alan. 1998. Understanding State Constitutions. Princeton: Princeton University Press. (\xe2\x86\xb5\nReturn)\nTarr, G. Alan, and Mary Cornelia Porter. 1988. State Supreme Courts in State and Nation. New\nHaven: Yale University Press. (\xe2\x86\xb5 Return)\nUnited States v. Leon, 468 U.S. 897 (1984). (\xe2\x86\xb5 Return)\nUnited States v. Place, 462 U.S. 696 (1983). (\xe2\x86\xb5 Return)\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 1991. \xe2\x80\x9cState Constitutional Law: Teaching and Scholarship.\xe2\x80\x9d Journal of Legal Education 41:\n243\xe2\x80\x9349. (\xe2\x86\xb5 Return)\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2009. The Law of American State Constitutions. New York: Oxford University Press. (\xe2\x86\xb5\nReturn)\n\nOn Remand | 91\n\n\x0cWisconsin v. Mitchell, 508 U.S. 476 (1993). (\xe2\x86\xb5 Return)\nWitters v. State, Commission for the Blind, 102 Wash.2d 624 (1984). (\xe2\x86\xb5 Return)\n\nClass Activity\nExamine your state constitutional bill of rights. What provisions are most surprising to you? How\ndoes it differ from the federal Bill of Rights? What makes those differences meaningful?\nMany first-generation constitutions in the 1780s and 1790s have provisions like this one from\nVermont (Ch. I Art. 13): \xe2\x80\x9cThat the people have a right to freedom of speech, and of writing\nand publishing their sentiments, concerning the transactions of government, and therefore the\nfreedom of the press ought not to be restrained.\xe2\x80\x9d Why do you think it uses ought instead of shall\nas in the First Amendment?\n\nOn Remand by Richard S. Price is licensed under a Creative Commons Attribution-NonCommercial 4.0 International License,\nexcept where otherwise noted.\n\n92 | On Remand\n\n\x0cJudges\nTo what extent is the American bench representative of the US population? And do the lived\nexperiences that women and racial or ethnic minorities bring to the bench make a difference?\nThe bench is a political institution in a democratic republic, so there is a broad interest in\nensuring that these agents of government are representative of their principal\xe2\x80\x94the citizens. In\nthis section, we present six chapters that examine the nature and/or effect of the representation\nof the judges sitting on the American bench. Professor Greg Goelzhauser\xe2\x80\x99s chapter explores\nthe connection between state judicial selection systems and the intersectional diversity of their\ncourts. He finds there are systematic patterns\xe2\x80\x94namely, appointive systems are more apt to result\nin benches with intersectional diversity than are elective systems. Professor Jeanine Kraybill takes\nup the question of whether women US Supreme Court justices use different principles of legal\nreasoning (a women\xe2\x80\x99s voice) in their written opinions than do their male counterparts. Using\ncomputer-assisted text analysis, she finds some differences between female and male justices\nin the use of legal reasoning, but not of the nature she expected. In the end, she shows there\nare patterns of differences in the use of legal principles in the justices\xe2\x80\x99 written opinions and\nthat the female justices do not have a monolithic writing style. Professor Kraybill continues this\nfocus and examines whether male and female judges perceive their treatment as members of\nthe judiciary and their role and place in the legal profession differently. Using the California\nstate judiciary as her potential subject pool, she surveys judges and finds that male and female\njudges do indeed have different perceptions and experiences, and this is, indeed, related to their\ngender. Professors Shane Gleason, Scott Comparato, and Christine Bailey explore whether the\ncitation of precedent from one state to another is affected by the gender of the author and thus\nwhether a different voice inhibits (or not) the diffusion of precedent and its influence on policy\nbeyond immediate state borders. Professor Kristen Renberg examines a similar question at the\nUS Courts of Appeals. Also examining the voluntary citation of precedent, Renberg considers\njudicial attributes beyond gender and court-level characteristics to determine what factors again\ninfluence the flow of precedent across the regional appellate courts. Next, Jeknic et al. examine\nthe judicial selections of President Trump through the lens of diversity and inclusion. They find\nthat Trump\xe2\x80\x99s judicial cohort was paler and more testosterone-driven than the cohorts of more\nrecent presidents (Obama, G. W. Bush, and Clinton). In other words, Trump appointed judges as if\nit was 1980 rather than 2020. Despite the record number of judges placed on the bench, the overall\nimpact was somewhat blunted by the larger number of active and senior-status judges continuing\nto serve. They discuss the significant implications of this lack of descriptive representation on\nthe legitimacy and support for the courts, as do other authors in this section. Finally, Professor\nCraig Smith looks at the more toxic side of representation\xe2\x80\x94specifically, those instances when a\njustice\xe2\x80\x99s association with an interest in or party to a case is so close that the justice\xe2\x80\x99s objectivity and\nJudges | 93\n\n\x0cimpartiality are brought into question. It is under these circumstances that recusal is considered.\nUsing Justice Tom Clark\xe2\x80\x99s recusal decisions as a case study, Professor Smith seeks to unpack the\nset of conditions that moved Justice Clark to recuse himself. In his analysis, Professor Smith shows\nthe recusal decision to be a highly personal one that is affected by the stakes of the case and the\njustice\xe2\x80\x99s preferences. When the stakes are high and justices\xe2\x80\x99 preferences are engaged, they will\nrarely recuse themselves. Once again, then, we see the importance of judicial attitudes coming to\nthe fore.\nGoelzhauser, Greg. \xe2\x80\x9cIntersectional Representation on State Supreme Courts.\xe2\x80\x9d\nKraybill, Jeanine. \xe2\x80\x9cWomen of SCOTUS: An Analysis of the Different Voice Debate.\xe2\x80\x9d\nKraybill, Jeanine. \xe2\x80\x9cIn a Different Voice: An Analysis of How California State Judicial Officers View\nGender Dynamics on the Bench.\xe2\x80\x9d\nGleason, Shane, Scott A. Comparato & Christine M. Bailey. \xe2\x80\x9cWalking on Broken Glass: Justice\nGender in State Supreme Court Citations.\xe2\x80\x9d\nRenberg, Kristen. \xe2\x80\x9cThe Transmission of Legal Precedent in the US Court of Appeals.\xe2\x80\x9d\nJeknic, Petar, Rorie Spill Solberg, Eric N. Waltenburg, and Christopher Stout. \xe2\x80\x9cTrump\xe2\x80\x99s Judges and\nDiversity: Regression to the Mean or Remaking the Judiciary?\xe2\x80\x9d\nSmith, Craig A. \xe2\x80\x9cThe Appearance of Justice.\xe2\x80\x9d\n\n94 | Judges\n\n\x0c4. Intersectional Representation on State\nSupreme Courts\nGREG GOELZHAUSER\n\nThe legal profession\xe2\x80\x99s history of discrimination against women and people of color is well\ndocumented. But women of color face unique hurdles to equal professional treatment (see, e.g.,\nBlackburne-Rigsby 2010; Burleigh 1988; Collins, Dumas and Moyer 2017; Smith 1997). An American\nBar Association (2006) survey reports, for example, that lawyers who are women of color are more\nlikely to face workplace harassment, receive insufficient professional mentoring, be denied highprofile client assignments, and receive negative performance evaluations. As one state judge put it,\n\xe2\x80\x9cWomen of color in the justice system of our nation, whether judge, attorney, or court staff suffer\na double disadvantage\xe2\x80\x94gender discrimination and ethnic bias\xe2\x80\x9d (Aranda 1996, 29).\nAlthough the study of state judicial diversification is thriving (e.g., Arrington 2018; Bratton and Spill\n2002; Goelzhauser 2016; Graham 1990; Hurwitz and Lanier 2003; Reddick, Nelson, and Caufield\n2009), much of it emphasizes single-axis representation, particularly the separate seating of\nwomen and people of color. In contrast, intersectionality research \xe2\x80\x9cemphasizes the interaction of\ncategories of difference (including but not limited to race, gender, class, and sexual orientation\xe2\x80\x9d\n(Hancock 2007, 63\xe2\x80\x9364). Scholars have noted in other contexts that the double disadvantage\nwomen of color experience conditions the relationship between institutions and representation.\n\n1\n\nAs Scola concludes in a study of intersectional legislative representation, \xe2\x80\x9cThe process seems to be\nmore complex than what is captured by race/ethnicity or gender separately\xe2\x80\x9d (2013, 344). Thus it\nis imperative to examine whether institutional design choices differentially impact intersectional\nrepresentation.\nThis chapter considers the relationship between judicial selection institutions and the\nrepresentation of women of color on state supreme courts. It begins with an overview of\nintersectionality and the law and continues with a theoretical consideration of the connection\nbetween selection institutions and diversification. The subsequent empirical analysis offers two\ncontributions. First, I highlight the groundbreaking women of color who diversified state supreme\ncourts\xe2\x80\x94a group of people who have largely not been recognized for their achievement. Second,\nusing data from 1960 through 2016, I examine whether selection institutions are associated with\nintersectional differences in seating new state supreme court justices. The results suggest that\n\n1. For broader discussions of intersectionality and politics, see Collins and Bilge (2016), Grabham et al.\n(2008), and Hancock (2016).\nIntersectional Representation on State Supreme Courts | 95\n\n\x0cwomen of color are more likely to be seated through appointment mechanisms. The results are\nsimilar for men of color, but white men are more likely to be seated through elections. Selection\nsystem differences are not associated with changes in the probability of seating white women.\nThese findings contribute to the nascent literature on intersectional judicial representation (see,\ne.g., Collins and Moyer 2008; Haire and Moyer 2015; Hurwitz and Lanier 2008, 2017; Solberg\nand Diascro 2019). They also have important policy implications for designing judicial selection\ninstitutions.\n\nDiversity, Intersectionality, and the Courts\nUnderstanding judicial diversification is important for several reasons. As an initial matter, the\ndescriptive representation of women and people of color in political institutions can increase\ntrust, engagement, and perceptions of legitimacy (see, e.g., Bobo and Gilliam 1990; Broockman\n2\n\n2014; Gay 2002; Mansbridge 1999; Reingold and Harrell 2010; Wolak 2015). With respect to the\ncourts, for example, support for the judiciary increases among black respondents with the number\nof black judges (Scherer and Curry 2010). And regarding intersectional judicial representation in\nparticular, scholars have suggested that increasing the number of women of color on the bench\nwill \xe2\x80\x9chold strong symbolic meaning, instill greater confidence in the courts for all the litigants who\ncome before them, and increase general confidence in the system of democracy in the country\xe2\x80\x9d\n(Fricke and Onwuachi-Willig 2012, 1542).\nGreater representation can also influence judicial decision-making. Crenshaw\xe2\x80\x99s (1989) seminal\narticle on the difficulty of proving intersectional discrimination claims highlights how a lack of\nperspective can shape legal doctrine. In one case involving alleged employment discrimination\nbrought \xe2\x80\x9con behalf of black women,\xe2\x80\x9d a federal district court held that plaintiffs were \xe2\x80\x9cnot . . .\nallowed to combine [gender- and race-based] statutory remedies to create a new \xe2\x80\x98super-remedy\xe2\x80\x99\nwhich would give them relief beyond what the drafters of the relevant statutes intended\xe2\x80\x9d\n(DeGraffenreid v. General Motors 1976, 143). Thus plaintiffs could raise separate gender and race\ndiscrimination claims but could not base a cause of action on intersectional discrimination.\nAs a result, evidence of nondiscrimination against women (even if that evidence involved, for\nexample, only white women) could be used to defeat gender discrimination claims, and evidence of\n\n2. Although much of the literature on the effects of descriptive representation focuses on the presence\nof either women or people of color, studies exploring the consequences of intersectional\nrepresentation are increasing (see, e.g., Stokes-Brown and Dolan 2010).\n96 | Intersectional Representation on State Supreme Courts\n\n\x0cnondiscrimination against people of color (even if that evidence involved, for example, only black\nmen) could be used to defeat race discrimination claims.\nEmpirical evidence also suggests that women of color fare worse in court. One early study of\nemployment discrimination claims in California finds that win rates and damage awards are\nlower in cases brought by black women than by black men or other women (Oppenheimer 2003,\n544\xe2\x80\x9345). Analyzing a national sample of federal equal employment opportunity cases from 1965\nthrough 1999, another study finds that intersectional discrimination claims are increasing but only\nabout half as likely to succeed; moreover, women of color are less likely to win (Best et al. 2011).\nFurthermore, the results indicate that women of color are the least likely gender-race intersection\nto win. Although win rates are similar for men and women generally, the \xe2\x80\x9cintersectionality penalty\xe2\x80\x9d\n(1009) results in women of color faring worse than expected when examining the data through a\nsingle-axis framework.\nThere is mixed single-axis evidence on whether judges who are women (e.g., Gryski, Main, and\nDixon 1986; Martin and Pyle 2005; Songer, Davis, and Haire 1994) or people of color (e.g., Farhang\nand Wawro 2004; Scherer 2005; Welch, Combs, and Gruhl 1988) decide cases differently. At the\nfederal level, black circuit court judges are more likely to support affirmative action policies,\nas are white judges assigned to a panel with a black judge (Kastellec 2013). A study exploring\nthe relationship between gender and judicial decision-making on federal circuit courts finds few\ndifferences between men and women overall but notes that women are more likely to support\nplaintiffs in gender discrimination cases, as are white judges assigned to a panel with a woman\n(Boyd, Epstein, and Martin 2010). At the state level, supreme court justices of color are more likely\nthan white justices to overturn convictions (Bonneau and Rice 2009).\nRace and gender differences are also manifest in other aspects of judicial behavior. For example,\nthere are gender-based differences in the types of experience men and women bring to the bench\n(Martin 1990), state apex court justices who are women or people of color are more likely to\ndissent in cases that are salient to members of those groups (Szmer, Christensen, and Kaheny\n2015), men and women have different opinion-writing styles (Davis 1992), federal circuit court\npanels that include women or people of color produce opinions with different characteristics\nregardless of whether a woman or person of color writes the opinion (Gill and Hall 2015), and\njudges of color are more likely \xe2\x80\x9cto adopt a nonmainstream approach\xe2\x80\x9d and \xe2\x80\x9cexperiment with\nalternative theories\xe2\x80\x9d in sentencing guideline cases (Sisk, Heise, and Morriss 1998, 1459). Although\nmuch of this literature adopts a single-axis perspective, findings of difference are prominent.\nAs more women of color join the bench, scholars are increasingly studying the link between\n3\n\nintersectionality and substantive judicial representation. One study of judicial behavior in federal\n\n3. Studies of intersectional legislative representation are more prominent (see, e.g., Barrett 1995;\nIntersectional Representation on State Supreme Courts | 97\n\n\x0ccircuit court criminal cases finds that women of color are more likely than judges with other\ngender-race combinations to vote for defendants (Collins and Moyer 2008). Another study reports\nthat black women exhibit distinct tendencies to dissent from majority dispositions on state\nhigh courts (Szmer, Christensen, and Kaheny 2015). And an analysis of opinion content finds\nthat intersectional representation has important implications for how many points of law judicial\nopinions cover (Haire, Moyer, and Treirer 2013). Furthermore, black women are more likely than\nwhite men to vote liberally in gender discrimination cases decided by federal circuit courts (Haire\nand Moyer 2015).\n\nSelection Institutions and Judicial Diversification\nThe literature on state court diversification emphasizes the potential importance of judicial\nselection institutions. While Article III judges are seated by presidential nomination and Senate\nconfirmation, state judicial selection mechanisms vary considerably. The primary selection\nmethods include unilateral gubernatorial or legislative appointment, commission-aided\ngubernatorial appointment, and contestable nonpartisan or partisan elections. Along with\ndiversity, selectors emphasize characteristics such as experience, temperament, and ideology.\nGiven that selection institutions are designed for myriad reasons, there is no strong a priori\ntheoretical justification for rank ordering them with respect to success in promoting\ndiversity\xe2\x80\x94much less the representation of women of color in particular. The existing empirical\nevidence on the relationship between selection institutions and diversification offers some a\nposteriori guidance but is mixed.\nUnder commission-aided gubernatorial selection, interested lawyers apply to fill a judicial\nvacancy, a commission typically comprising lawyers and nonlawyers selects a short list of\nnominees from the applicant pool, and the governor appoints one of the nominees. Early\nproponents of \xe2\x80\x9cmerit selection\xe2\x80\x9d argued that it would prioritize qualifications over political\nconnections. After President Carter experimented with commissions to help diversify the federal\nbench, supporters argued that use of the system would enhance representation for historically\ndisadvantaged groups at the state level. The core argument is that emphasizing qualifications over\npolitical connections increases opportunities for marginalized groups. Capturing the prevailing\nsentiment among many merit selection proponents, one scholar argues, \xe2\x80\x9cThere is no question but\nthat the merit selection system affords greater opportunities for women and minorities to find\n\nBratton, Haynie, and Reingold 2006; Brown 2014; Darcy, Hadley, and Kirksey 1993; Hardy-Fanta et al.\n2006; Hughes 2011, 2013; Scola 2006, 2013).\n98 | Intersectional Representation on State Supreme Courts\n\n\x0ctheir way to the bench\xe2\x80\x9d (Krivosha 1987, 19). Although arguments concerning merit selection rarely\nfocus on intersectional representation in particular, perhaps the broader emphasis on diversity\nincreases opportunities for women of color.\nProponents of other selection systems are typically less explicit about whether or how their\nfavored mechanisms impact diversity. A possible benefit of unilateral elite appointment systems is\nthat selectors are free to seek out prospective judges from the broader pool of qualified attorneys.\nWhereas choice is constrained under merit selection by applicant and nominee pools, and in\nelections by who runs for office, unilateral appointers can reach out to individuals who may\nnot otherwise seek judgeships. This may be particularly important for attracting members of\ndoubly disadvantaged groups. Unilateral appointment systems also facilitate holding stakeholders\naccountable for a lack of diversity. In merit selection systems, for example, it may be difficult to\nobserve the extent to which a lack of diversity is due to pool imbalance, nomination decisions,\nor appointment decisions. In election systems, responsibility for a lack of diversification is likely\nto be more diffuse. Conversely, critics of unilateral elite appointment contend that unconstrained\nselectors use their power for patronage, in which case women of color may be disfavored due to\ntheir historical political underrepresentation.\nNumerous arguments have been made for (e.g., Bonneau and Hall 2009) and against (e.g., Geyh\n2003) judicial elections. However, this debate typically emphasizes issues such as voter knowledge,\ncampaign dynamics, and legitimacy rather than diversity (see, e.g., Bonneau and Cann 2015; Cann\nand Yates 2016; Gibson 2012; Hall 2015). Two features of the broader political landscape drive\nconcerns about elections and diversity. First, women and people of color may be more reluctant\nto run for office (e.g., Fox and Lawless 2005). Second, implicit bias may suppress support for\nunderrepresented candidates (e.g., Weaver 2012). One scholar offered a hypothetical rebuttal to\ndiversity arguments against judicial elections, suggesting that appointments \xe2\x80\x9cwill often be whiteshoe affairs subject to capture and cronyism and liable to scant diversity along any number of\ndimensions,\xe2\x80\x9d while \xe2\x80\x9celections, at least, are covered by the Voting Rights Act\xe2\x80\x9d (Pozen 2008, 295).\nMore practically, judicial elections may be uniquely suited to generate quick and sizeable increases\nin diversity. In 2018, for example, seventeen black women were elected to the bench in Harris\nCounty, Texas (encompassing Houston), representing an 850 percent increase in the number\nserving (Schneider 2019).\nThe existing empirical literature offers insight into the relationship between selection institutions\nand state court diversification. Using a variety of samples and modeling strategies, numerous\nstudies find no relationship between selection system choice and judicial diversity (e.g., Alozie\n1990, 1996; Graham 1990; but see Martin and Pyle 2002). For example, selection system choice is\nlargely unassociated with the pace at which states first diversified their apex courts (Goelzhauser\n2011). And there is no consistent relationship between selection institutions and the number of\n\nIntersectional Representation on State Supreme Courts | 99\n\n\x0cwomen or people of color serving on state supreme courts in 1985, 1999, or 2005 (Hurwitz and\nLanier 2003, 2008).\nThe most comprehensive studies leverage decades of data on state supreme court seatings to\nbetter understand the relationship between selection institutions and diversification. Examining\nseatings from 1980 through 1997, Bratton and Spill (2002) find that appointment systems are more\nlikely to produce justices who are women. And data on seatings from 1960 through 2014 suggest\nthat women are more likely to be seated under unilateral elite appointment than merit selection,\nwith no meaningful difference between merit selection or unilateral appointment and elections;\nfurthermore, people of color are more likely to be seated under unilateral elite appointment\nor merit selection than elections, with no discernable difference between appointment systems\n(Goelzhauser 2016).\nOther research streams yield important insights about specific selection mechanisms and\ndiversity. Under merit selection, for example, there is evidence that commissions are less likely\nto nominate women (Goelzhauser 2018a). Survey evidence reveals that attorneys who are women\nexpress more interest in seeking judgeships under merit selection while there is no race\ndifferential (Jensen and Martinek 2009). Evidence from submitted applications, however, finds no\ngender differential with respect to expressive ambition and no gender or race differential with\nrespect to progressive ambition (Goelzhauser 2019). Furthermore, the extent to which the design\nof merit selection systems facilitates commission capture is not associated with diversification\n(Goelzhauser 2019).\nUnder elections, survey evidence reveals that attorneys who are women express more interest\nin running for office while there is no race differential (Williams 2008). Evidence from other\ninstitutional contexts suggests that members of historically underrepresented groups exhibit\nmore election aversion (e.g., Kanthak and Woon 2015), receive less elite encouragement to run\nfor office (e.g., Lawless and Fox 2010), and suffer from stereotyped perceptions that discourage\nentry (e.g., Dolan 2010). Contrary to appointers, though, voters are no less likely to support the\nselection of women with other women in office (Solberg and Stout n.d.; Bratton and Spill 2002).\nAnd there is evidence that once on the bench, members of underrepresented groups do not suffer\nan electoral penalty (Frederick and Streb 2008; Gill and Eugenis 2019; Hall 2001; Solberg and Stout\nn.d.). Members of marginalized groups do, however, receive biased performance ratings leading up\nto retention elections (Gill 2014; Gill, Lazos, and Waters 2011).\n\nEmpirical Analysis\nAre women of color more likely to be seated under certain judicial selection systems? The\n100 | Intersectional Representation on State Supreme Courts\n\n\x0cempirical analysis proceeds in two steps. First, I provide descriptive information on the first\nwomen of color seated on state apex courts. Although the first women of color to serve in the\nfederal judiciary are well known, no systematic information exists about women of color on state\ncourts. As a result, these groundbreaking women have not been collectively recognized, and\nmany of their stories are largely unknown. To recover this history, I gathered information on all\nstate supreme court justices seated from 1960 through 2016 from a variety of sources, including\nbiographies, press releases, and newspaper articles (see Goelzhauser 2016). Second, I analyze the\nrelationship between selection institutions and the seating of women of color on state supreme\ncourts. While emphasizing women of color, the analysis provides comparable results for other\ngender-race combinations.\n\nThe First Women of Color on State Supreme Courts\nThe history of women of color on the federal bench is comparatively well known. Constance Baker\nMotley became the first woman of color to hold an Article III judgeship and serve on a district\ncourt when she was nominated to the US District Court for the Southern District of New York by\nPresident Johnson in 1966\xe2\x80\x94seventeen years after the first woman (Burnita Shelton Matthews) and\ntwenty-nine years after the first person of color (William Henry Hastie Jr., who was also the first\nperson of color to hold an Article III judgeship). Amalya Lyle Kearse was the first woman of color\nseated on a federal circuit court after being nominated to the US Court of Appeals for the Second\nCircuit by President Carter in 1979\xe2\x80\x94forty-five years after the first woman (Florence Ellinwood\nAllen, also the first woman to hold an Article III judgeship) and twenty-nine years after the first\nperson of color (William Henry Hastie Jr.). And Sonia Sotomayor became the first woman of color\nseated on the US Supreme Court after being nominated by President Obama in 2009\xe2\x80\x94twentyeight years after the first woman (Sandra Day O\xe2\x80\x99Connor) and forty-two years after the first person\nof color (Thurgood Marshall). It is notable that in each instance, seating the first woman of color\ntook considerably longer than seating either the first white woman or man of color.\nIn the states, Dorothy Comstock Riley, who was Hispanic, may have been the first woman of\ncolor seated on a state apex court when governor William Milliken appointed her to the Michigan\nSupreme Court in December 1982. For comparison, Florence Ellinwood Allen, who as noted\npreviously was the first woman to hold an Article III judgeship, was the first woman to serve as a\nstate supreme court justice with her election by Ohio voters in 1922. And Jonathan Jasper Wright,\nan African American appointed to the South Carolina Supreme Court by the state legislature\nduring Reconstruction in 1870, may have been the first man of color seated on a state apex court.\nThe next black justice was not seated until Otis M. Smith was appointed to the Michigan Supreme\n\nIntersectional Representation on State Supreme Courts | 101\n\n\x0cCourt in 1961 (see Goelzhauser 2011, 762\xe2\x80\x93763). Thus as with federal firsts, the first woman of color\nto sit on a state high court did so well after the first white woman and man of color.\nJustice Riley spent her career in private practice before serving as a trial and appellate court\njudge. Riley lost an electoral bid for the Michigan Supreme Court in November 1982, but outgoing\nRepublican governor William Milliken appointed her to an interim position when an incumbent\njustice named Blair Moody died a few weeks after being reelected. To prevent the incoming\nDemocratic governor James Blanchard from filling the seat, Milliken appointed Riley to serve\nMoody\xe2\x80\x99s new term even though it had not started. After this maneuver was challenged by the\nBlanchard administration, the Michigan Supreme Court (with Justice Riley recused) ruled that\nJustice Riley\xe2\x80\x99s interim appointment was only valid through the end of Blair\xe2\x80\x99s previous term\n(Attorney General v. Riley 1983). As a result, Riley\xe2\x80\x99s initial tenure lasted from December 9, 1982,\nthrough 12:00 p.m. on January 1, 1983. In 1984, however, Riley was elected to the court for a full\n4\n\nterm and served until 1997, when she resigned due to the onset of Parkinson\xe2\x80\x99s disease. Despite\nperhaps being the first woman of color seated on a state high court and the only woman of color\nseated twice during the sample period, her racial identity was seldom mentioned at the time of\ninitial appointment, subsequent election, or death (see, e.g., Associated Press 2004).\nBernette Joshua Johnson was the only other woman of color to be initially seated on a state\napex court through election during the sample period. In 1988, the US Court of Appeals for the\nFifth Circuit held that Louisiana violated the Voting Rights Act by combining Orleans Parish and\nits large percentage of black voters with three predominantly white parishes for the purpose\nof electing two state supreme court justices while other parishes elected a single justice each;\nthe court found it \xe2\x80\x9cparticularly significant that no black person has ever been elected to the\nLouisiana Supreme Court\xe2\x80\x9d (Chisholm v. Edwards 1988, 1058). To remedy black vote dilution in\nOrleans Parish, Louisiana entered into a consent decree, deferring redistricting but agreeing to\ncreate an intermediate appellate court judgeship for Orleans Parish that would immediately be\nassigned to the state supreme court, thereby increasing the latter\xe2\x80\x99s size from seven to eight\njustices (see Perschall v. Louisiana 1997). Johnson, who had been a trial court judge, finished second\nin a three-way Democratic primary race, which would have resulted in a runoff election except\nthat the white first-round winner withdrew, claiming her presence \xe2\x80\x9cthreatened to \xe2\x80\x98permanently\nscar\xe2\x80\x99 race relations in New Orleans\xe2\x80\x9d amid arguments by Johnson and another black candidate that\nthe position should be filled by a black judge in light of the reason for its creation (Orlando Sentinel\n1994). After redistricting in 2000, Justice Johnson ran unopposed for reelection to a regular seat,\n\n4. For biographical details from the Michigan Supreme Court Historical Society, see\nhttp://www.micourthistory.org/justices/dorothy-riley/.\n102 | Intersectional Representation on State Supreme Courts\n\n\x0cand the court was reduced in size back to seven seats. Johnson was reelected unopposed again in\n5\n\n2010.\n\nJuanita Kidd Stout became the first black woman to sit on a state\xe2\x80\x99s highest court when governor\nRobert Patrick Casey Jr. appointed her to the Pennsylvania Supreme Court in 1988. Stout was a\nmusic teacher in her home state of Oklahoma before pursuing a career in law after working as a\nlegal stenographer during World War II (Thomas 1998). Stout\xe2\x80\x99s legal experience included private\npractice and service as an assistant district attorney before receiving an interim appointment to\nthe municipal bench in 1959 (Adams 2015). By retaining her position in a subsequent election,\nshe became the first black woman elected to any court in the United States (Thomas 1998). After\nStout\xe2\x80\x99s 1988 appointment to the Pennsylvania Supreme Court, she was forced off the bench in 1989\nupon reaching the mandatory retirement age. In 1998, Justice Stout died of leukemia.\nJoyce Kennard may have been the first Asian American woman to sit on a state\xe2\x80\x99s apex court when\ngovernor George Deukmejian appointed her to the California Supreme Court in 1989. Kennard was\nborn in Indonesia, where her family was detained in a Japanese internment camp before moving\nto the Netherlands after World War II (Dolan 2014). With English as a third language, Kennard later\nimmigrated to the United States, where after law school she worked as a deputy attorney general\nand research attorney for a state appellate court. Her judicial career progressed swiftly; she served\nas a municipal court judge, superior (trial) court judge, and appellate court judge before joining the\nCalifornia Supreme Court (Kort 1993). In 2014, at the age of seventy-two, Justice Kennard retired\non the twenty-fifth anniversary of her appointment to California\xe2\x80\x99s high court, declaring, \xe2\x80\x9cI\xe2\x80\x99d like\nto finally make time for my long-neglected friends\xe2\x80\x9d (Egelko 2014).\n\n5. For additional details on the aftermath of the consent decree, see Chisom v. Jindal (2012). There is\nsome dispute concerning whether Justice Johnson was first elected to the Louisiana Supreme Court\nin 1994 or 2000 given that the initial position was a specially created intermediate appellate court\nseat assigned to the state supreme court. This question resulted in litigation when a disagreement\narose as to who was next in line by seniority to become chief justice, Johnson or an individual who\nwas first elected in 1995. In creating the redistricted position Johnson secured in 2000, Louisiana\nlaw stipulated that \xe2\x80\x9cany tenure on the supreme court gained by [the judge elected to fill this\nposition] while so assigned to the supreme court shall be credited to such judge\xe2\x80\x9d (706). Referencing\nthis provision and parts of the consent decree stating that the position would effectively be\nequivalent to a supreme court seat, a federal district court held that Justice Johnson\xe2\x80\x99s time on the\nstate supreme court began in 1994, and she ultimately became chief justice in the disputed contest.\nAs a result of these factors, I classify Justice Johnson as being first seated in 1994.\nIntersectional Representation on State Supreme Courts | 103\n\n\x0cFigure 1: Women of Color Seated on State\nSupreme Courts, 1960-2016.\n\nOverall, women of color accounted for 2 percent of state supreme court seatings from 1960\nthrough 2016. During the same period, women and men of color, respectively, accounted for 17\npercent and 9 percent of seatings. After 1982, when the first woman of color was seated on a state\napex court, 4 percent of the seatings through 2016 were women of color compared to 26 percent\nand 13 percent for women and men of color, respectively. Figure 1 plots the name and year seated\nfor each woman of color to join a state high court during the sample period. In total, twenty-two\nstates seated women of color on their apex courts during this time. Women of color secured 2\npercent of seatings in the 1980s, 3 percent in the 1990s, 1 percent in the 2000s, and 11 percent from\n2010 through 2016. For comparison, figure 2 plots the percentage of seats obtained by decade for\nwomen of color, men of color, white women, and white men. Of the seatings on state supreme\ncourts involving women of color, 57 percent of the justices were black, 24 percent were Hispanic\nor Latina, 16 percent were Asian or Pacific Islander, and 3 percent were Asian and Latina.\n\n104 | Intersectional Representation on State Supreme Courts\n\n\x0cFigure 2: Seatings by Decade\n\nQuantitative Analysis\nThe quantitative analysis employs justice-level data on all new seatings to state supreme courts\nfrom 1960 through 2016. The primary dependent variable is scored 1 when a newly seated justice\nwas a woman of color and 0 otherwise. For comparison, I fit separate models for seating men of\ncolor, white men, and white women. Combining women from different race and ethnic categories\nis inconsistent with the overarching emphasis of intersectionality research on treating members\nof different disadvantaged statuses separately. However, this approach is necessary at this time\ndue to the few women of color to be seated on state high courts. As Scola explained when\ncombining race and ethnic categories in a study of intersectional legislative representation, \xe2\x80\x9cWhile\nthis justification may not be wholly satisfying (for the reader or the author), collapsing the data was\nnecessary to have a sufficient number of cases to test the model\xe2\x80\x9d (2013, 341). The key explanatory\nvariables are indicators for whether justices were seated under unilateral elite appointment\n6\n\n(gubernatorial or legislative), merit selection, or contestable elections (partisan or nonpartisan).\n\nThis categorization reflects core institutional similarities but is also driven by the paucity of\nwomen of color seated across more finely delineated classifications.\n\n7\n\n6. It is notable that women of color are regularly seated through interim appointments. Of the twentysix women of color appointed to state supreme courts during the sample period, fifteen (58 percent)\nreceived interim appointments.\n7. Measurement of the key explanatory variables is straightforward with the exception of merit\nselection (see Goelzhauser 2018b). States are classified as employing merit selection if they have a\nstatute or constitutional provision mandating that a commission winnow applications and nominate\na short list of individuals from which the governor makes an appointment.\nIntersectional Representation on State Supreme Courts | 105\n\n\x0cOmitted variable bias occurs when excluding predictors that are correlated with the dependent\nvariable and key explanatory variables. As a result, the models include several control variables\nthat may be associated with state selection system choice and diversification. Previous research\nindicates that members of underrepresented groups may be more disadvantaged as position value\nincreases. To capture position value, I include an index of state court professionalism (Squire\n2008), term length in years, number of court seats, and an indicator for use of a mandatory\n8\n\nretirement rule. While each measure captures position value, having shorter terms, more seats,\nand mandatory retirement may also induce turnover, thereby increasing opportunities for\nmembers of disadvantaged groups. Eligibility pool controls account for the number of attorneys\n9\n\nin a state who are women or people of color. Since the effect of pool size may be nonlinear, with\nincreases at the low end in the number of attorneys from underrepresented groups mattering\nmore than at the high end, I take the natural log transformation of the raw counts. Given that\nwomen of color are generally more likely to secure political office as state liberalism increases\n(e.g., Scola 2006), I include a dynamic measure of citizen ideology (Berry et al. 1998). Last, because\nof changes in the likelihood of seating women of color over time, I account for time dependence by\nincluding variables counting the number of years since the start of the sample period, the number\nof years squared, and the number of years cubed (Carter and Signorino 2010).\nLogistic regression can be used to model binary outcomes, such as whether a woman of color\nis seated on an apex court. Due to the infrequency of seating women of color, which can bias\nsubstantive effects downward, the models are fit using a rare event correction for logistic\nregression (King and Zeng 2001a, 2001b). Standard errors are clustered by state to account\nfor the fact that observations within a state are not independent, which can lead to incorrect\nstandard errors (Primo, Jacobsmeier, and Milyo 2007). Table 1 in the appendix displays the full\nresults. Table 2 in the appendix displays the results using a multinomial choice model as an\nalternative estimation strategy. The results are consistent across specifications. Focusing on\nsubstantive effects, figure 3 plots first differences for pairwise comparisons of gender and race\nacross selection methods. The effects seem small, but this is often the case with rare event data. To\nbetter examine substantive impact with rare event data, King and Zeng suggest examining relative\nrisks, which \xe2\x80\x9care typically considered important in rare event studies if they are at least 10\xe2\x80\x9320\npercent\xe2\x80\x9d (2001a, 152).\n\n8. The term length variable takes a value of thirty in state years with no applicable terms.\n9. The attorneys of color variable combines census information on the number of black and Hispanic\nattorneys in a state. Census data are not as extensive with respect to the number of Asian American\nattorneys by state.\n106 | Intersectional Representation on State Supreme Courts\n\n\x0cFigure 3: Predicted Probabilities\n\nOverall, the results indicate that selection system choice is associated with the likelihood of\nseating women of color on state supreme courts. As an initial matter, the difference between\nelite appointment and merit selection is not statistically distinguishable from zero. However, both\nappointment systems are more likely than elections to produce justices who are women of color.\nMoving from elite appointment to election is associated with an \xe2\x88\x9288 percent (\xe2\x88\x9297 percent, \xe2\x88\x9240\n10\n\npercent) decrease in the relative risk of seating a woman of color.\n\nMoving from election to merit\n\nselection is associated with a 316 percent (5 percent, 1,692 percent) increase in the relative risk of\nseating a woman of color.\nCompared to other gender-race combinations, the results for women of color are most similar to\nthose for men of color. The results are more distinct when compared to white men and women,\n\n10. All quantities of interest are calculated by setting mandatory retirement to its mode (yes) and other\nvariables to their means. Parentheses include 95 percent confidence intervals.\nIntersectional Representation on State Supreme Courts | 107\n\n\x0cwhich in turn are distinct from each other. Moving from elite appointment to election is associated\nwith an \xe2\x88\x9282 percent (\xe2\x88\x9292 percent, \xe2\x88\x9265 percent) decrease in the relative risk of seating a man of\ncolor. Unlike with women of color, elections are also associated with a change in the likelihood of\nseating men of color relative to merit selection, with the relative risk increasing by 327 percent\n(78 percent, 901 percent) moving from the former to the latter. No pairwise selection institution\ncomparison is associated with a statistically significant difference in the likelihood of seating\nwhite women. For white men, moving from unilateral elite appointment to election is associated\nwith a 14 percent (7 percent, 22 percent) increase in the relative risk of being seated. Moving\nfrom unilateral elite appointment to merit selection is associated with a 9 percent (3 percent, 18\npercent) increase in the risk of being seated. While moving from election to merit selection is\nassociated with a \xe2\x88\x924 percent (\xe2\x88\x928 percent, 1 percent) decrease, the confidence interval overlaps\nzero, indicating that we cannot reject the null hypothesis of no relationship.\nPool size and time are the most notable control variables. Increasing the natural log of the number\nof attorneys of color in a state from its twenty-fifth to seventy-fifth percentile is associated with\na 488 percent (55 percent, 1,953 percent) increase in the relative risk of seating a woman of color.\nHowever, the same increase in the natural log of the number of attorneys who are women is\nassociated with a \xe2\x88\x9269 percent (\xe2\x88\x9290 percent, \xe2\x88\x9214 percent) decrease in the relative risk of seating\na woman of color. The results are similar for men of color. Increasing the natural log of the\nnumber of attorneys of color from its twenty-fifth to seventy-fifth percentile is associated with\nan 860 percent (329 percent, 2,291 percent) increase in the relative risk of seating a man of color.\nThe same increase in the natural log of the number of attorneys who are women, however, is\nassociated with an \xe2\x88\x9282 percent (\xe2\x88\x9292 percent, \xe2\x88\x9261 percent) decrease in the relative risk of seating\na man of color. For white women, increasing the natural log of the number of attorneys of color\nfrom its twenty-fifth to seventy-fifth percentile is associated with a \xe2\x88\x9234 percent (\xe2\x88\x9250 percent,\n\xe2\x88\x9211 percent) decrease in the relative risk of being seated. The same increase in the natural log of\nthe number of attorneys who are women is associated with a 47 percent (\xe2\x88\x921 percent, 109 percent)\nincrease in the relative risk of being seated, though the confidence interval overlaps zero. For\nwhite men, increasing the natural log of the number of attorneys of color from its twenty-fifth\nto seventy-fifth percentile is associated with a \xe2\x88\x927 percent (\xe2\x88\x9215 percent, 3 percent) decrease in the\nrelative risk of being seated, but this confidence interval also includes zero.\nThe eligibility pool results have important implications. Consistent with existing research on\npolitical institutions and intersectionality, eligibility pools for women and people of color can have\ndisparate effects on representation. Relatedly, there appears to be a tradeoff in seating women\nand people of color on state apex courts. An increase in the supply of attorneys who are women,\nfor example, decreases the likelihood of seating a person of color. Last, many of the substantive\neffects are large relative to the effects associated with selection institution choice, suggesting that\nstakeholders who value diversity should emphasize increasing candidate pools and doing more to\nencourage and facilitate inclusive access to the bench.\n108 | Intersectional Representation on State Supreme Courts\n\n\x0cFigure 4 plots the probability of seating justices from various gender-race combinations over time.\nThe probability of seating women of color remains flat and near zero through much of the sample\nperiod, with a slight uptick this decade. After remaining relatively flat and near zero through\nthe 1960s, there is a noticeably higher probability of seating men of color and white women\nbeginning in the mid- to late 1970s, corresponding with President Carter\xe2\x80\x99s efforts to diversify the\nfederal judiciary. The uptick for white women, however, is more persistent. In recent years, the\nprobability of seating men of color drops below that of seating women of color. White men held a\nvirtual monopoly in obtaining state supreme court positions at the beginning of the sample period\nwith a declining probability of being seated as members of underrepresented groups joined the\nbench more regularly. Overall, in the sample period\xe2\x80\x99s later years the probability of being seating is\nincreasing for women of color and white men but decreasing for men of color and white women.\n\nFigure 4: Hazard Rates\n\nConclusion\nFacing the double disadvantage of gender and race bias, women of color endure discrimination\nin the legal profession, manifested in part by a lack of representation. This chapter makes two\ncontributions to the existing literature on state court diversity. First, it offers a descriptive\naccount of the women of color who have served on state high courts from 1960 through 2016.\nWhile historic federal firsts are widely recognized, this group of groundbreaking women has\nreceived comparatively little attention. Second, I examine the relationship between selection\nIntersectional Representation on State Supreme Courts | 109\n\n\x0cmechanism choice and seating women of color. The results indicate that newly seated women of\ncolor are less likely to arrive through election than unilateral elite appointment or merit selection.\nThe results are similar for men of color, while newly seated white men are more likely to arrive\nthrough election. Selection system choice is not associated with differences in seating white\nwomen.\nThe results have important policy implications. Scholars have amassed a wealth of empirical\nevidence on the performance of various judicial selection and retention institutions (see, e.g.,\nBonneau and Cann 2015; Bonneau and Hall 2009, 2017; Cann and Yates 2016; Geyh 2019; Gibson\n2012; Goelzhauser 2016, 2019; Hall 2015; Kritzer 2015; Streb 2007). Albeit just one part of the\nbroader debate, the extent to which institutional design choices impact judicial diversification\nhas important consequences for descriptive and substantive representation. With respect to\nseating women of color in particular, the results presented here suggest that appointment systems\noutperform elections. While the mechanism is unclear, evidence from a variety of institutional\ncontexts suggests that members of underrepresented groups may be disadvantaged in election\nsystems due to factors such as contest aversion, lack of party support, having fewer political\nconnections, and implicit stakeholder bias. Given increasing evidence that appointment systems\ntend to outperform elections with respect to diversification, one option for promoting diversity\nwhile enjoying the benefits of elections is to increase the use of short-term appointments.\nBy emphasizing women of color on state supreme courts, this chapter advances our\nunderstanding of how marginalized groups secure political representation. But it is important to\nstress that the broader study of intersectionality is complex, requiring scholars to leverage varied\nanalytical approaches to shed light on the relationship between intersectionality and political\naction (see, e.g., Cho, Crenshaw, and McCall 2013; Hancock 2013; Holman and Schneider 2018;\nMcCall 2005). These varied approaches are necessary in part because it is important to address\nother intersections of disadvantage in future research. Discrimination based on marginalized\nstatuses such as religion, sexual orientation, and social class interacts with dimensions such as\ngender and race in complex ways (see, e.g., Beckwith 2014; Htun and Ossa 2013). One recent\nstudy, for example, examined evaluations of political candidates on the basis of gender and sexual\norientation (Doan and Haider-Markel 2010). Moving forward, it is imperative to better map this\ncomplexity onto theories and empirical tests concerning intersectionality and the study of law and\ncourts.\n\n110 | Intersectional Representation on State Supreme Courts\n\n\x0cReferences\nAdams, Brandon. 2015. \xe2\x80\x9cAfrican American History Spotlight: Juanita Kidd Stout.\xe2\x80\x9d Savanna Herald,\nApril 15. (\xe2\x86\xb5 Return)\nAlozie, Nicholas O. 1996. \xe2\x80\x9cSelection Methods and the Recruitment of Women to State Courts of\nLast Resort.\xe2\x80\x9d Social Science Quarterly 77(1): 110\xe2\x80\x93126. 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Schneider. 2018. \xe2\x80\x9cGender, Race, and Political Ambition: How\nIntersectionality and Frames Influence Interest in Political Office.\xe2\x80\x9d Politics, Groups, and Identities\n6(2): 264\xe2\x80\x93280. (\xe2\x86\xb5 Return)\nHtun, Mala, and Juan Pablo Ossa. 2013. \xe2\x80\x9cPolitical Inclusion of Marginalized Groups: Indigenous\nReservations and Gender Parity in Bolivia.\xe2\x80\x9d Politics, Groups, and Identities 1(1): 4\xe2\x80\x9325. (\xe2\x86\xb5 Return)\nHughes, Melanie M. 2013. \xe2\x80\x9cThe Intersection of Gender and Minority Status in National\nLegislatures: The Minority Women Legislative Index.\xe2\x80\x9d Legislative Studies Quarterly 38(4):\n489\xe2\x80\x93516. (\xe2\x86\xb5 Return)\nHughes,\n\nMelanie\n\nM.\n\n2011.\n\n\xe2\x80\x9cIntersectionality,\n\nQuotas,\n\nand\n\nMinority\n\nWomen\xe2\x80\x99s\n\nPolitical\n\nRepresentation Worldwide.\xe2\x80\x9d American Political Science Review 105(3): 604\xe2\x80\x9320. 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(\xe2\x86\xb5 Return)\nStokes-Brown, Atiya Kai, and Kathleen Dolan. 2010. \xe2\x80\x9cRace, Gender, and Symbolic Representation:\nAfrican American Female Candidates as Mobilizing Agents.\xe2\x80\x9d Journal of Elections, Public Opinion\nand Parties 20(4): 473\xe2\x80\x9394. (\xe2\x86\xb5 Return)\nStreb, Matthew J., ed. 2007. Running for Judge: The Rising Political, Financial, and Legal Stakes of\nJudicial Elections. New York, NY: New York University Press. (\xe2\x86\xb5 Return)\n\n118 | Intersectional Representation on State Supreme Courts\n\n\x0cSzmer, John, Robert K. Christensen, and Erin B. Kaheny. 2015. \xe2\x80\x9cGender, Race, and Dissensus on\nState Supreme Courts.\xe2\x80\x9d Social Science Quarterly 96(2): 553\xe2\x80\x9375. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nThe Associated Press. 2004. \xe2\x80\x9cObituaries in the News: Dorothy Comstock Riley.\xe2\x80\x9d AP Online, October\n25. (\xe2\x86\xb5 Return)\nThomas, Robert, Jr. 1998. \xe2\x80\x9cJ.K. Stout, Pioneering Judge in Pennsylvania, Is Dead at 79.\xe2\x80\x9d New York\nTimes, August 24. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nWeaver, Velsa M. 2012. \xe2\x80\x9cThe Electoral Consequences of Skin Color: The \xe2\x80\x98Hidden\xe2\x80\x99 Side of Race in\nPolitics.\xe2\x80\x9d Political Behavior 34(1): 159\xe2\x80\x93192. (\xe2\x86\xb5 Return)\nWelch, Susan, Michael Combs, and John Gruhl. 1988. \xe2\x80\x9cDo Black Judges Make a Difference?\xe2\x80\x9d\nAmerican Journal of Political Science 32(1): 126\xe2\x80\x9336. (\xe2\x86\xb5 Return)\nWilliams, Margaret S. 2008. \xe2\x80\x9cAmbition, Gender, and the Judiciary.\xe2\x80\x9d Political Research Quarterly 61(1):\n68\xe2\x80\x9378. (\xe2\x86\xb5 Return)\nWolak, Jennifer. 2015. \xe2\x80\x9cCandidate Gender and the Political Engagement of Women and Men.\xe2\x80\x9d\nAmerican Politics Research 43(5): 872\xe2\x80\x9396. (\xe2\x86\xb5 Return)\n\nIntersectional Representation on State Supreme Courts | 119\n\n\x0cAppendix\nWomen of Color Men of Color White Women White Men\nElection\n\nMerit Selection\n\nCourt Professionalism\n\nSeats\n\nTerm Years\n\nMandatory Retirement\n\nIn(Lawyers: Women)\n\n-2.045***\n\n-1.805***\n\n0.024\n\n0.801***\n\n(0.737)\n\n(0.390)\n\n(0.194)\n\n(0.170)\n\n-0.601\n\n-0.332\n\n-0.255\n\n0.501***\n\n(0.380)\n\n(0.271)\n\n(0.169)\n\n(0.172)\n\n1.970\n\n1.094\n\n0.002\n\n-0.613\n\n(1.280)\n\n(1.017)\n\n(0.586)\n\n(0.669)\n\n0.100\n\n0.023\n\n0.018\n\n-0.018\n\n(0.195)\n\n(0.156)\n\n(0.071)\n\n(0.074)\n\n0.031\n\n-0.055*\n\n-0.007\n\n0.023*\n\n(0.031)\n\n(0.032)\n\n(0.013)\n\n(0.014)\n\n0.671*\n\n0.114\n\n0.130\n\n-0.156\n\n(0.382)\n\n(0.248)\n\n(0.145)\n\n(0.173)\n\n-0.618**\n\n-0.933***\n\n0.221***\n\n0.105\n\n(0.296)\n\n(0.222)\n\n(0.110)\n\n(0.126)\n\n0.914***\n\n-0.168***\n\n-0.167*\n\n0.015\n\n0.028**\n\n0.004\n\n-0.014**\n\n(0.014)\n\n(0.014)\n\n(0.005)\n\n(0.006)\n\n0.807**\n\n0.013\n\n0.069\n\n-0.045\n\n(0.398)\n\n(0.073)\n\n(0.112)\n\n(0.062)\n\n-0.020*\n\n0.003\n\n0.002\n\n-0.003\n\n(0.011)\n\n(0.003)\n\n(0.003)\n\n(0.002)\n\n<0.001**\n\n<-0.001\n\n<-0.001\n\n<-0.001\n\n(<0.000)\n\n(<0.001)\n\n(<0.001)\n\n(<0.001)\n\n(4.788)\n\n(1.675)\n\n(1.206)\n\n(1.197)\n\n1,609\n\n1,609\n\n1,609\n\n1,609\n\nIn(Lawyers: People of Color) 0.669***\nCitizen Liberalism\n\nTime\n\n2\n\nTime\n\n3\n\nTime\n\nObservations\n\nTable 1: State Supreme Court Seatings, 1960-2016.\n*** p<.01, ** p<.05, ** p<.10. Standard errors clustered by state are in parentheses. Unilateral elite appointment is the\nexcluded selection system baseline.\n120 | Intersectional Representation on State Supreme Courts\n\n\x0cMen of Color White Women White Men\nElection\n\nMerit Selection\n\nCourt Professionalism\n\nSeats\n\nTerm Years\n\nMandatory Retirement\n\nIn(Lawyers: Women)\n\nIn(Lawyers: People of Color)\n\nCitizen Liberalism\n\nTime\n\n2\n\nTime\n\n3\n\nTime\n\nObservations\n\n1.772\n\n10.149***\n\n13.069***\n\n(1.493)\n\n(7.112)\n\n(10.060)\n\n1.419\n\n1.549\n\n2.281**\n\n(0.520)\n\n(0.650)\n\n(0.916)\n\n0.356\n\n0.123\n\n0.100\n\n(0.330)\n\n(0.186)\n\n(0.149)\n\n0.920\n\n0.912\n\n0.895\n\n(0.170)\n\n(0.185)\n\n(0.191)\n\n0.922***\n\n0.968\n\n0.982\n\n(0.026)\n\n(0.031)\n\n(0.033)\n\n0.516*\n\n0.495*\n\n0.423**\n\n(0.178)\n\n(0.206)\n\n(0.174)\n\n0.811\n\n2.441***\n\n2.087**\n\n(0.288)\n\n(0.745)\n\n(0.663)\n\n1.141\n\n0.407***\n\n0.444***\n\n(0.327)\n\n(0.102)\n\n0.119\n\n1.010\n\n0.986\n\n0.979\n\n(0.013)\n\n(0.016)\n\n(0.015)\n\n0.351***\n\n0.381***\n\n0.351***\n\n(0.142)\n\n(0.153)\n\n(0.141)\n\n1.029***\n\n1.027**\n\n1.025**\n\n(0.011)\n\n(1.011)\n\n(0.011)\n\n1.000***\n\n1.000***\n\n1.000***\n\n(<0.001)\n\n(<0.001)\n\n(<0.001)\n\n1,609\n\n1,609\n\n1,609\n\nTable 2: Multinomial Choice Model of State Supreme Court Seatings, 1960-2016.\n***p<.01, ** p<.05, ** p<.10. The results display relative risk ratios. Standards errors clustered by state are in\nparentheses. Unilateral elite appointment is the excluded selection system baseline. Women of color is the excluded\nreference category.\n\nIntersectional Representation on State Supreme Courts | 121\n\n\x0cClass Activity\nAssume the role of a policy maker and consider the following questions:\n1. What characteristics should judges possess?\n2. How should we design judicial selection institutions to facilitate the selection of individuals\nwith these characteristics?\n3. How might these institutional design choices impact diversification and the selection of\nwomen of color in particular?\nSelect a state and research the history of its supreme court diversity. When and how was the first\nwoman, woman of color, and man of color seated?\n\n122 | Intersectional Representation on State Supreme Courts\n\n\x0c5. Women of SCOTUS\nAn Analysis of the Different Voice Debate\nJEANINE E. KRAYBILL\n\nA Different Voice\nAs more women in the 1980s and 1990s attained judicial positions on federal and state courts,\nsome social scientists and feminist scholars began to question if female judicial officers would\nadjudicate differently than their male counterparts (Kenney 2013). This potential difference spurs\na series of important research questions whose answers provide valuable insight into judicial\ndecision-making. For example, would gender diversity on the bench lead to differences in case\noutcomes, legal reasoning, and the judicial decision-making process? Drawing on the work of\nCarol Gilligan (1982), would women judges rule in a different voice than their male counterparts?\nWould women judges employ an ethics of care, prioritizing social relationships and context?\nWould male judges use more of an ethics of justice, focusing on competing rights, choice, and\nindividual autonomy? Or would there be little difference between male and female judges because\nthey operate under principles of judicial independence and impartiality and employ wellestablished legal norms (Hunter 2015)?\nThese unsettled questions continue to be examined by scholars via interviews, case rulings, and\noutcomes, with much attention given to the lower levels of federal and state courts, where\ndiversity is increasing at a faster clip and there are larger number of judges overall, leaving the\nSupreme Court of the United States (SCOTUS) in need of further exploration. Therefore, I raise\nthe question of whether there is evidence of Gilligan\xe2\x80\x99s (1982) different voice among the women of\nSCOTUS and if their \xe2\x80\x9cvoice\xe2\x80\x9d in legal opinions varies from their male counterparts. In particular,\ndo female justices employ particular language characteristics associated with the ethics of care\nand the ethics of justice, as suggested by Gilligan (1982)? While ideally, all SCOTUS cases would be\nexamined, this is beyond the scope of this study. Therefore, I focus on cases where issues relating\nto gender matter and/or may be a factor and where a different voice is most likely to manifest. To\nthat end, this study centers on court opinions pertaining to gender, health care, LGBTQ+ issues,\nand religious liberty over the course of thirty-six years, beginning with the October term 1981 (and\nthe appointment of the first female justice) through October term 2017, using a computer-assisted\ntext analysis (CATA) program called Linguistic Inquiry and Word Count (LIWC). The findings\nfrom this study suggest some evidence of the different voice debate on the Supreme Court\xe2\x80\x94but\nWomen of SCOTUS | 123\n\n\x0cnot necessarily in the expected direction. Overall, this research provides more insight into the\ndifferent voice debate at the highest level of power and justice and finds that the parameters of\nthe debate as spelled out by Gilligan (1982) do not seem to apply to the High Court.\n\nIssues of Gender and Justice\nSymbolic Influence and the Judiciary\nSome advocates for an increase in the number of female jurists center their arguments on the\npower of symbolism. For example, Kenney (2013) argues that the presence of women judges fosters\na sense of democratic legitimacy in legal institutions because by including women, the courts\nare more representative of the wider fabric of society and the populations they serve. Similarly,\nHunter (2015) argues that women should be represented in equal numbers on the bench, as\nthis would better reflect their portion in terms of the general population and also among law\nschool graduates. George and Yoon (2018) argue that judges\xe2\x80\x99 backgrounds not only have important\ninternal implications for the inner workings of the courts but also impact external perceptions\nof legal institutions. George and Yoon pay particular attention to this dynamic at the state court\nlevel, since these courts hear over 90 percent of all court cases. They refer to this symbolic\nunderrepresentation as the \xe2\x80\x9cgavel gap,\xe2\x80\x9d which is measured by the proportional difference between\nthe number of women and minorities serving as judges and the number of women and minorities\nin the general population. These scholars argue that as a way to cultivate trust and legitimacy\nin the courts and legal system, judges must be more demographically representative in terms of\ngender, race, and ethnicity.\nAdditionally, Kenney (2013) argues that an increase of female judges signals a sense of equal\nopportunity for women lawyers who are looking to become judicial officers, demonstrating the\nprocess of becoming a judge is what it purports to be: merit based, nondiscriminatory, and\nimpartial. The law, like many institutions, has been designed by men and has worked to promote a\nmale leadership and mentorship model. Therefore, having more female judges not only provides a\nsense of encouragement to other women who aspire to become lawyers and judges but facilitates\nmentorship between and among women already serving on the bench. Moreover, an increased\npresence of women judges can build mentorship opportunities with female law students as well as\nyounger women and girls who are looking to become judges (Hunter 2015).\nIn addition to the symbolic arguments advocating for more female judges, scholars also argue for\nincreased representation on practical grounds. For example, some argue that women judges may\n124 | Women of SCOTUS\n\n\x0chave a heightened empathy for female litigants, witnesses, and victims; therefore, they cultivate\na more positive courtroom experience for them. Moreover, women judges may bring a sense\nof \xe2\x80\x9cgendered sensibility\xe2\x80\x9d to judicial decision-making by considering their unique perspectives as\nwomen and mothers, balancing work and family responsibilities, and dealing with various forms\nof sexism and discrimination (Hunter 2015; Hale and Hunter 2008). Gendered sensibility is also\nin line with feminist standpoint theory (FST), which Martin, Reynolds, and Keith (2002) use to\nadvocate for more women judges. Stemming from Marxism, FST is the idea that one\xe2\x80\x99s social\nlocation and experience matter, and hence women as a minority are aware of how the world (or in\nthis case, the law) can be structured to favor some groups and disfavor others, producing a female\nconsciousness in some judicial officers. This is also in line with Gilligan\xe2\x80\x99s (1982) different voice\nargument, as she emphasizes that an ethics of care places a premium on relationships, stressing\nthe importance of everyone having a voice.\n\nGender Differences and Judicial Outcomes\nAs women began to enter the judiciary in more appreciable numbers, scholars began to ask if\ntheir gender would impact their decision-making and if their presence would influence their male\ncolleagues on the bench. Thus far, studies report mixed findings regarding if having women on the\nbench results in different judicial outcomes. For example, in looking at trial proceedings in urban\nareas, studies found differences in rulings between male and female judges (Gruhl, Sophn, and\nWelch 1981; Kritzer and Uhlman 1977). Yet at the federal level, Gottschall (1983) found little effect of\ngender among appellate judges, and Segal (2000) found that female Clinton appointees in district\ncourts were less likely than their male counterparts to rule in favor of female plaintiffs making\nsexual discrimination claims. However, Peresie (2005) finds that the presence of women on three\njudge panels affects the collegial decision-making process and that male judges are more likely to\nfind for the plaintiff when there is at least one female judge on the panel. And still other scholars\nfind and argue that differences between male and female judges appear to be most pronounced\nin cases where gender is a salient factor, such as those involving discrimination and harassment\n(Allen and Wall 1987; Boyd, Epstein, and Mark 2010; Peresie 2005).\nThere are several factors that scholars argue may explain the mixed findings regarding gender\ndifferences and judicial outcomes. First, earlier work focused on a small sample of female judges\nthat was not large enough to allow scholars to pick up differences between them and their male\ncounterparts. Second, because female judges were once viewed as \xe2\x80\x9cnovelties\xe2\x80\x9d or \xe2\x80\x9ctokens,\xe2\x80\x9d they\nfelt pressure to rule in cases the way their male counterparts did (Davis 1986). This also speaks\nto the literature that argues that regardless of a judges\xe2\x80\x99 background, he or she is superseded by\nlong-standing norms of judicial behavior and reasoning and that exhibiting differences is inimical\nto the role of the judiciary; therefore, the law is impervious to a feminist judicial decision-making\nWomen of SCOTUS | 125\n\n\x0capproach (Hunter 2015; Thornton 1996). Third, previous studies examined a range of issues, some\nof which did not include disputes where gender was a primary factor, which may have caused\ndifferences among male and female judges (Davis 1986; Walker and Barrow 1985). Fourth, former\nanalyses did not include proper controls that may impact judicial outcomes, such as the ideology,\nprevious careers, and experience of judges (Rhode 2001).\n\nThe Different Voice Debate\nBeyond symbolism, it has been argued that more female judges will improve the judicial system\nby bringing a different voice to the bench and changing the position of women in the law more\ngenerally. Up until the 1990s, there had been little attempt to work through this argument.\nAs previously noted, an unresolved debate has ensued on whether women make a qualitative\ndifference in court case outcomes and if they rule from a different perspective then their male\ncounterparts (Feenan 2008). In part, this debate gained more attention when Bertha Wilson,\nthe first female justice of the Supreme Court of Canada, wrote her 1990 piece \xe2\x80\x9cWill Women\nJudges Really Make a Difference?\xe2\x80\x9d Wilson argues that if one holds to the tenants of judicial\nindependence and impartiality, then the increased number of women judges should not make a\ndifference. However, Wilson also calls attention to Carol Gilligan\xe2\x80\x99s (1982) argument that women\nand men think differently about ethical and moral dilemmas and that women view themselves\nas connected to a community, whereas men see themselves as more autonomous. Wilson notes\nthat Gilligan (1982) lays out the possibility that these differing perspectives may be a result of the\nchildhood socialization process, arguing that female children are more attached to their mothers\nand hence prioritize relationships, whereas male children may be less connected and hence are\ndefined through separation and individualism. Paralleling this to court cases, for women, it is\nnot about winning or losing but about preserving relationships and developing an ethics of care\nthat takes into account circumstance and context. Wilson (1990) argues that there is merit in the\nethics of care perspective, as it helps explain the reluctance of courts (whose judicial officers are\npredominately male) to consider the circumstances of cases along with the courts\xe2\x80\x99 propensity\nto reduce disputes to their essential components and rules. Here, Wilson emphasizes Gilligan\xe2\x80\x99s\nethics of justice perspective, which argues that men see moral dilemmas as arising from competing\nrights, welcome the adversarial process, and view disputes in terms of winners and losers, whereas\nwomen are more likely to reconcile competing obligations and hence view cases in a broader\ncontext. Therefore, Wilson concludes that from their different perspectives, women judges have\nthe potential to bring a \xe2\x80\x9cnew humanity\xe2\x80\x9d to court decisions and can make a difference by viewing\nand ruling on cases in terms of a larger societal picture and impact.\nIn looking at gender as a variable in order to determine if women adjudicate differently than men,\nscholars have examined whether the judge being a feminist makes an impact, with some studies\n126 | Women of SCOTUS\n\n\x0cshowing feminism among male and female jurists as an important factor (Martin, Reynolds, and\nKeith 2002). In looking at cases of paired men and women on the Ninth Circuit Court of Appeals,\nDavis (1992) finds minimal evidence of gender differences. However, in another study, Songer,\nDavis, and Haire (1994) do find evidence of gender differences in sex discrimination cases, which\nis consistent with some of the research previously addressed. In looking at divorce cases, Martin\nand Pyle (2005) find that women judges were more supportive of female litigants. Moreover, when\nserving alongside one other female, male judges were also more supportive of women litigants.\nOverall, the studies that examine gender differences among judges and their impact on court\ncases tend to focus on their outcomes and have yielded mixed results. To my knowledge, previous\nresearch has not examined the language style of court opinions in the specific context of the\ndifference voice debate. In order to more effectively examine this difference, one must analyze\nthe words and rhetorical style that male and female judges use. Moreover, the work noted above\nhas not examined this debate among the women and men of the Supreme Court of the United\nStates, adding a new avenue of research to explore if male and female judicial officers adjudicate\nin a different voice.\n\nResearch Questions and Expectations\nAre women of the Supreme Court more likely to employ language in their opinions that is\nassociated with an ethics of care and men with an ethics of justice? Most research on court\nopinions has focused on liberal or conservative ideological outcomes; however, Lupu and Fowler\n(2010) argue that the content of opinions is more important than the holding (decision) of the court\ncase. Rhode and Spaeth (1976) note that it is not the ideological dimension of the opinion but the\ncontent of it that makes policy. Citations of Supreme Court opinions have also been analyzed in\nterms of positive and negative treatment, finding that once a particular case is positively cited,\nit gains vitality and tends to be cited more frequently in subsequent cases (Hansford and Spriggs\n2006). As Cross and Pennebaker (2014) and Tiller and Cross (2006) note, in contrast to social and\npolitical scientists, legal scholars analyze the particular details of a case with little attention to\nthe overall meaning of language in the opinion, and they do not employ statistical analysis to find\nrelationships, patterns, or associations, which provide broader and more general understanding of\nthe content of court opinions.\nTherefore, the analysis I present in this chapter is poised to make a meaningful contribution to\nthis unsettled debate by directly testing if men and women of the High Court employ different\nlanguage styles and hence speak with a different voice. Overall, I expect that they do\xe2\x80\x94that there\nwill be differences in the language men and women of the High Court use in their opinions,\nWomen of SCOTUS | 127\n\n\x0cwith female justices of the Supreme Court employing language associated with an ethics of care\nand male justices using language that is more affiliated with an ethics of justice. For example, as\npreviously noted, words associated with an ethics of care is more collective and contextual and\nprioritizes relationships, and some scholars in political and social science have suggested that this\ntype of rhetoric can be associated with women legislators and leaders (Dodson and Carroll 1991;\nKathlene 1994; Rosenthal 1998; Thomas 1997).\n\nExamining the Language of Court Opinions\nSince we need to look at the context of opinions, I use the CATA program LIWC, which examines\nlanguage by reading and analyzing text for characteristics such as, but not limited to, emotion,\ntone, and affect. It consists of approximately ninety output variables and is designed with a\npreformulated dictionary composed of over six thousand words, word stems, and emoticons\n(LIWC 2015). The language and content of court opinions are at the core of what the law is and\nhave an impact on both society and the legal system (Cross and Pennebaker 2015). For example,\nscholars argue that the formulation of an opinion is at the center of appellate adjudication and that\nwhat judges say can be even more consequential than how they vote, as a case\xe2\x80\x99s legal reasoning can\nhave a wide-ranging impact by altering legal policy and hence structuring the outcome of future\ndisputes (Coffin 1994; Shapiro and Stone Sweet 2002; Hansford and Spriggs 2006). Overall, it is the\nrhetoric of judges that is persuasive in legal opinions, and it is the style of their language that can\nassist in understanding the court\xe2\x80\x99s work; therefore, it is imperative that it be more systematically\nstudied (Murphy 1964; Chemerinsky 2002).\n\nMethodology\nAs briefly noted in the introduction, in order to conduct an analysis testing the different voice\ntheory via Supreme Court opinions, I examine cases dealing with gender, health care, religious\nliberty, and LGBTQ+ issues from the 1981\xe2\x80\x9382 session through the 2017\xe2\x80\x9318 session. This is\nconsistent with previous scholars who have analyzed differences of opinion between male and\nfemale justices using cases relating to gender\xe2\x80\x94that is, cases where gender is more pronounced\nor a salient factor (Allen and Wall 1987; Boyd, Epstein, and Martin 2010; Peresie 2005). These four\ncategories of cases are employed because issues of gender can and do get intertwined with these\ntopics. The time period was chosen in order to include and analyze opinions across the four\n\n128 | Women of SCOTUS\n\n\x0cselected topics by women who have served on the US Supreme Court, with Sandra Day O\xe2\x80\x99Connor\nbeing the first in 1981. In total, the sample consisted of 649 opinions (see table 1).\n\nCategory\n\nNumber of\nNumber of Number of Lead Female\nCases\nOpinions\nAuthored\nOpinions\n\nNumber of\nNumber of\nLead Male\nPer Curiam\nAuthored\nOpinions\nOpinions\n\nGender\n\n35\n\n90\n\n24\n\n64\n\n2\n\nHealth Care\n\n122\n\n277\n\n51\n\n217\n\n9\n\nLGBTQ+\n\n12\n\n34\n\n1\n\n30\n\n3\n\nReligious Liberty 73\n\n248\n\n46\n\n200\n\n2\n\nTotal\n\n649\n\n122\n\n511\n\n16\n\n242\n\n1\n\nTable 1: Overview of Sample\n\nAfter gathering the descriptive data captured in table 1, all opinions were separated into individual\nMicrosoft Word files and labeled by the lead author. Each file consisted only of the text of the\n2\n\nopinion. Majority, dissenting, concurring, and per curiam opinions were analyzed. For example, in\nthe case of Mississippi University for Women v. Hogan, 458 U.S. 718 (1982), Justice Harry Blackum\xe2\x80\x99s\ndissent was stored in its own Word file and was cleared of any additional words, citations, or\nsymbols that were not included in the actual text of the opinion, and Sandra Day O\xe2\x80\x99Connor\xe2\x80\x99s\nmajority opinion on this case was handled the same way. This file preparation was done for easy\nupload into the LIWC program and so that only the text of each opinion was analyzed.\nLIWC is equipped with word variables that help capture the frequency and percentage of certain\nwords and related phrases. LIWC\xe2\x80\x99s program analyzes over six thousand common words and word\nstems. LIWC is an appropriate tool to use to study court opinions, as they often employ ordinary\nlanguage so that they are understood. Moreover, LIWC is one of the most common language\ntools used to study large bodies of text and has been used in previous research examining court\ndecisions (Cross and Pennebaker 2015). Word variables in LIWC that were associated with the\ncharacteristics of an ethics of care and an ethics of justice were combined in order to create\n\n1. I would like to thank my former research assistant at CSU, Bakersfield, Nicole Mirkazemi, for her\ncoordination and efforts with collecting and organizing this data set/sample of cases.\n2. Although per curiam opinions refer to decisions from an appellate court that does not identify a\nspecific judge as authoring the opinion (Legal Information Institute 2018), they were not dropped\nfrom the analysis in order to have a complete sample of opinions for the time period specified.\nMoreover, per curiam opinions represented a small portion of the sample (2.4 percent) and hence\nwould not have significantly impacted the results.\nWomen of SCOTUS | 129\n\n\x0ceach respective category. For example, the category \xe2\x80\x9cethics of care\xe2\x80\x9d was devised by combining the\nLIWC word variables social, family, friend, and we. The \xe2\x80\x9cethics of justice\xe2\x80\x9d category was devised by\ncombining the word variables power, achieve, and I.\nOnce the sample of court opinions were run through the LIWC program, t-tests were conducted\nto compare the use of language associated with the ethics of justice and ethics of care categories\namong the women of the Supreme Court in order to determine if they employed more of the latter.\nA t-test is a form of inferential statistics used to assess if there is a significant difference between\nthe means (averages) of two different groups (Siegel 2018). This allows the researcher to make\npredictions from the data about the groups he or she is comparing. T-tests were also performed\nto see if the women varied in their use of either category when compared to the total number\nof male-authored opinions. When comparing the use of language associated with the ethics of\ncare and the ethics of justice frameworks among and between only the women of the Supreme\nCourt, Sandra Day O\xe2\x80\x99Connor is used as the baseline. For example, in looking at the cases involving\ngender, t-tests were done to compare Sandra Day O\xe2\x80\x99Connor versus Ruth Bader Ginsburg, Sandra\nDay O\xe2\x80\x99Connor versus Sonia Sotomayor, and Sandra Day O\xe2\x80\x99Connor versus Elena Kagan across the\nvarious case types. Since O\xe2\x80\x99Connor was the first woman to serve on the High Court and has been\narguably the most critical of the different voice debate among the four female justices examined,\nshe is the logical candidate to serve as the baseline female justice.\n\nFindings\nThe study yields interesting results and shows that men and women of the Supreme Court can\nemploy a different voice. However, the findings run counter to expectations and Gilligan\xe2\x80\x99s (1982),\nas they demonstrate that the female justices overall tend to employ more language associated\nwith an ethics of justice and that the male justices utilize language that is more aligned with an\nethics of care. Furthermore, there are times when Sandra Day O\xe2\x80\x99Connor (who again referred to\nthis debate as \xe2\x80\x9cdangerous and unanswerable\xe2\x80\x9d) employs more language associated with an ethics\nof care compared to her female counterparts. The discussion of the findings below highlights the\nkey takeaways from this analysis.\n\n3\n\n3. Note that only one opinion for the category of LGBTQ+ cases was female-authored. Therefore,\nindividual t-tests between the women in this category of cases were not done; however, the\nLGBTQ+ cases are still part of the aggregate analysis when comparing male and female justices and\nthe language associated with the ethics of care and the ethics of justice across the entire sample.\n130 | Women of SCOTUS\n\n\x0cMale and Female Comparison across the Entire Sample\nWhen looking at the entire sample of opinions across the four types of cases over the period\nanalyzed, the results show that male justices of the Supreme Court significantly employed slightly\nmore language associated with an ethics of care (5.53 percent to 5.13 percent), and the female\njustices significantly utilized slightly more language aligned with an ethics of justice (6.52 percent\nto 6.14 percent), which is not in line with expectations (see figure 1).\n\nFigure 1: \xe2\x80\x9cEthics of Care and Ethics of Justice\xe2\x80\x9d\nLanguage Camparison Between Male and Female\nJustices Across Entire Sample of Cases\n\nGender\nIn looking at cases only involving gender, we see that the women of the High Court employed\na slightly higher percentage of language associated with the ethics of justice category (focusing\non individual rights) compared to the total group of male justices (6.58 percent to 6.42 percent,\nrespectively); however, the results were not significant. Yet counter to expectations, when looking\nat language associated with the ethics of care category (placing a premium on relationships),\nthe men of the Supreme Court used this language at a higher percentage than their female\ncounterparts (6.49 percent to 5.58 percent, respectively), with a suggestive significance level of p\n= 0.1453 (see figure 2).\n\nWomen of SCOTUS | 131\n\n\x0cFigure 2: \xe2\x80\x9cEthics of Care\xe2\x80\x9d Language Comparison\nBetween Male and Female Justices Across Gender\nRelated Cases\n\nThis trend can be seen in cases such as Tuan Anh Nguyen v. INS, 533 U.S. 53 (2001), which dealt\nwith gender-based distinctions of parents to fulfill citizenship requirements of children born out\nof wedlock and abroad to a citizen father and noncitizen mother. The Court\xe2\x80\x99s majority opinion,\nauthored by Kennedy, focused not only on DNA proof to claim paternity of the father but also\non the relationship between the male parent and child, arguing that making sure there was an\nopportunity for such a relationship helped further an important government interest. Kennedy\nargued, \xe2\x80\x9cTo ensure that the child and the citizen parent have some demonstrated opportunity or\npotential to develop not just a relationship that is recognized as a formal matter, by law, but one\nthat consists of the real, everyday ties that provide a connection between child and citizen parent\xe2\x80\x9d\n(Tuan Anh Nguyen v. INS, 533 U.S. 53 [2001]). The majority acknowledge that the DNA requirement\nwas met by the father in this case, who was also the citizen parent. The opinion focused more on\nthe relationship opportunity standard; citizen fathers must show that there was, at the very least,\nthe opportunity for a parental bond between the citizen parent and the child. The lack of contact\nin this case allowed the Court to deny citizenship to the child. In her dissent (to which Ginsburg\nconcurred), O\xe2\x80\x99Connor argued that sex-based classifications impede on individual rights and \xe2\x80\x9cdeny\nindividuals opportunity\xe2\x80\x9d (Tuan Anh Nguyen v. INS, 533 U.S. 53 [2001]). In refuting the relationship\nopportunity standard, O\xe2\x80\x99Connor argued that \xe2\x80\x9cchildren who have an opportunity for such a tie with\na parent, of course, may never develop and actual relationship with that parent\xe2\x80\x9d (Tuan Anh Nguyen\nv. INS, 533 U.S. 53 [2001]). The language of O\xe2\x80\x99Connor\xe2\x80\x99s dissent is more consistent with the ethics of\njustice framework because it focuses on Tuan\xe2\x80\x99s individual ability to seek citizenship on the basis of\nhis father being a US citizen rather than on the opportunity for a father-son relationship to exist\nand develop between them. Overall, O\xe2\x80\x99Connor argued that different requirements for children\xe2\x80\x99s\nacquisition of citizenship depending on whether the citizen parent was a mother or father denied\nTuan equal opportunity and protection.\n\n132 | Women of SCOTUS\n\n\x0cNow, in turning our attention specifically to the women of the Supreme Court and cases involving\ngender, I find that O\xe2\x80\x99Connor was more likely to employ language associated with both an ethics of\ncare and an ethics of justice compared to her female counterparts. For example, as figure 3 shows,\nwhen compared with Sonia Sotomayor, O\xe2\x80\x99Connor significantly used more language associated\nwith an ethics of care (6.28 percent compared to 2.6 percent).\nFigure 3 also shows that O\xe2\x80\x99Connor significantly employed more language associated with an ethics\nof justice than Ruth Bader Ginsburg (7.37 percent compared to 5.49 percent). These results are\nsomewhat counter to expectations, as I argue that women of the Court (including O\xe2\x80\x99Connor)\nwould be more likely to employ language associated with an ethics of care. However, I found that\nO\xe2\x80\x99Connor used both types of language more so than her female counterparts. In some ways, these\nfindings echo back to O\xe2\x80\x99Connor\xe2\x80\x99s criticism of the different voice debate\xe2\x80\x94that women are not a\nmonolith. It may also signal that at times when dealing with issues of gender, O\xe2\x80\x99Connor felt she\ncould not differ from traditional norms of the Court, which have been established under male\nparadigms.\n\nFigure 3: \xe2\x80\x9cEthics of Care and Ethics of Justice\xe2\x80\x9d\nLanguage Comparison Among the Women of\nSCOTUS Across Gender Related Cases\n\nHealth Care\nAll male and female court opinions on cases involving health care were also compared via the\nethics of care and ethics of justice categories. Similarly to the cases involving gender, the male\njustices of the Supreme Court employed more language associated with an ethics of care (5.19\npercent compared to 4.72 percent, respectively), with a p-value of .1377, which is not highly\nsignificant but suggests a close probability for the use of this type of language. Involving these\ntypes of cases, the results also show that the women of the Supreme Court employed significantly\nWomen of SCOTUS | 133\n\n\x0cmore language associated with the ethics of justice framework than their male counterparts (6.76\npercent to 5.97 percent, respectively; see figure 4).\n\nFigure 4: \xe2\x80\x9cEthics of Justice\xe2\x80\x9d Language Comparison\nBetween Male and Female Justices Across Health\nCare Related Cases\n\nThis trend can be seen in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 83\n(1992), which dealt with required health care procedures and provisions before a female could\nseek and obtain an abortion in the state. The provisions enacted by the state legislature required\ninformed consent, a twenty-four-hour waiting period prior to the procedure, parental consent,\nclinic reporting procedures, and spousal consent. The Court agreed the first four regulations\nwere constitutionally admissible but were divided on spousal consent, which was ultimately\nruled to create an \xe2\x80\x9cundue burden\xe2\x80\x9d on a women\xe2\x80\x99s right to terminate her pregnancy. Counter\nto expectations, Sandra Day O\xe2\x80\x99Connor, who authored the Court\xe2\x80\x99s decision, framed her opinion\nwithin the context of an ethics of justice by discussing women\xe2\x80\x99s personal liberty and the healthrelated issue of reproductive rights, arguing for women\xe2\x80\x99s autonomy in these decisions. In so doing,\nO\xe2\x80\x99Connor stated,\nThough abortion is conduct, it does not follow that the State is entitled to proscribe it in all\ninstances. That is because the liberty of the woman is at stake in a sense unique to the human\ncondition and so unique to the law. The mother who carries a child to full term is subject to\nanxieties, to physical constraints, to pain that only she must bear. That these sacrifices have from\nthe beginning of the human race been endured by woman with a pride that ennobles her in the\neyes of others and gives to the infant a bond of love cannot alone be grounds for the State to\ninsist she make the sacrifice. Her suffering is too intimate and personal for the State to insist,\nwithout more, upon its own vision of the woman\xe2\x80\x99s role, however dominant that vision has been in\nthe course of our history and our culture. The destiny of the woman must be shaped to a large\nextent on her own conception of her spiritual imperatives and her place in society.\n134 | Women of SCOTUS\n\n\x0cO\xe2\x80\x99Connor\xe2\x80\x99s reference to women\xe2\x80\x99s \xe2\x80\x9cliberty\xe2\x80\x9d being at stake, her discussion of women in an individual\ncontext\xe2\x80\x94emphasizing consequences that \xe2\x80\x9conly she must bear\xe2\x80\x9d with the realities of bringing a child\nto full term\xe2\x80\x94her mention of women\xe2\x80\x99s suffering as \xe2\x80\x9cpersonal,\xe2\x80\x9d and her assertion that women should\nhave the ability to construct their \xe2\x80\x9cdestiny\xe2\x80\x9d on their \xe2\x80\x9cown conception\xe2\x80\x9d are all associated with the\nconcept of the ethics of justice framework.\nOn the other hand, in their dissent, William Rehnquist, Byron White, Antonin Scalia, and Clearance\nThomas put a premium on the spousal relationship, which is more aligned with an ethics of care,\narguing that the state had \xe2\x80\x9clegitimate interests\xe2\x80\x9d in protecting the \xe2\x80\x9cinterests of the father and in\nprotecting the potential life of the fetus . . . and promoting the integrity of the marital relationship.\xe2\x80\x9d\nIn looking at the women of the Supreme Court and their opinions on health care, the findings\nshow that O\xe2\x80\x99Connor employed more language associated with an ethics of care when compared to\nGinsburg and Sotomayor (see figures 5). However, when compared to Kagan, O\xe2\x80\x99Connor employed\nless language relating to an ethics of care (5.54 percent compared to 6.50 percent, respectively),\nthough the results are not significant. When comparing the opinions on health care via the ethics\nof justice overall, O\xe2\x80\x99Connor employed slightly less language associated with this concept compared\nto Ginsburg, Sotomayor, and Kagan (6.51 percent compared to 7.08 percent, 6.6 percent, and 6.6\npercent, respectively); however, none of the results were significant.\n\nFigure 5: \xe2\x80\x9cEthics of Care Language Comparison\nAmong the Women of SCOTUS Across Health Care\nRelated Cases\n\nReligious Liberty\nRegarding the results for the total of male- and female-authored opinions on religious liberty,\nthere are negligible differences between the two groups regarding language associated with the\nethics of care and ethics of justice categories. For example, the male justices employed 5.39\nWomen of SCOTUS | 135\n\n\x0cpercent of language associated with an ethics of care and the women 5.37 percent. A similar\npattern continues with an ethics of justice, with the men using 6.29 percent of this language in\ntheir opinions on religious liberty and the women 6.17 percent.\nHowever, the results are a mixed bag across religious liberty opinions authored by the female\njustices of the Supreme Court. For example, O\xe2\x80\x99Connor employed slightly less language associated\nwith the ethics of care framework when compared to Ginsburg (5.27 percent to 5.85 percent,\nrespectively), although the results are not significant. Yet O\xe2\x80\x99Connor did employ more of this type\nof language compared to Sotomayor (5.27 percent to 4.21 percent, respectively), though again, the\nresults are not significant. However, similarly to the findings on health care, Kagan employed more\nlanguage associated with an ethics of care compared to O\xe2\x80\x99Connor (6.86 percent to 5.27 percent,\nrespectively), and the results are hovering around significance with a p-value of 0.1067. In looking\nat the results among the women of the Supreme Court regarding opinions on religious liberty and\nthe use of language associated with an ethics of justice, O\xe2\x80\x99Connor employed more of this language\nthan any of her female counterparts (6.40 percent compared to 5.96 percent for Ginsburg and\n6.11 percent for Sotomayor); however, this was only significant when examining the use of this\nlanguage between O\xe2\x80\x99Connor and Kagan (see figure 6).\n\nFigure 6: \xe2\x80\x9cEthics of Care and Ethics of Justice\xe2\x80\x9d\nLanguage Comparison Among the Women\nSCOTUS Across Religious Liberty Related Cases\n\nImplications and Future Research\nThis analysis of gender-related cases and their opinions yields further insight into the different\nvoice debate. First, the findings show that when looking at the women of the Supreme Court, they\nare not a monolith. Unlike what some of the political science scholarship noted above has found\nregarding women in legislative bodies, this study finds that there is not a particular language style\nthe women of SCOTUS use\xe2\x80\x94at least in terms of language associated more with women and men.\nFor example, the findings in this analysis show that female justices do not uniformly rule using\n136 | Women of SCOTUS\n\n\x0clanguage associated with an ethics of care or ethics of justice. For instance, in opinions on gender\nand health care, Sandra Day O\xe2\x80\x99Connor employed both styles of language and more so than Ruth\nBader Ginsburg and Sonia Sotomayor but not necessarily Elena Kagan. Although the women of the\nSupreme Court did not uniformly issue opinions associated with the ethics of care, we see that\nwomen among and between themselves can rule in a different voice.\nThe results also show interesting differences between the male- and female-authored opinions.\nFor example, in cases on gender and health care, we see that the male justices in total tended\nto employ language associated more with an ethics of care and women with an ethics of justice.\nWe see this same pattern when comparing the total amount of male- versus female-authored\nopinions across the entire sample. This pattern challenges Gilligan\xe2\x80\x99s (1982) argument that the\nethics of care perspective is more associated with women than men, giving further insight into\nthe different voice debate. Some scholars may again chalk this up to women of the High Court\nconforming to the male norms of their profession or not wanting to appear to rule in a way that has\nbeen traditionally associated with women. Or in the cases relating to gender and health care, one\nmay argue that the women employ more language associated with the ethics of justice category\nbecause of their feminist consciousness and are hence more likely to put a premium on women\xe2\x80\x99s\nautonomous individual rights over women\xe2\x80\x99s connections to their society, family, and so on. These\npotential explanations, though, do not address the findings regarding male justices and their use of\nlanguage associated with an ethics of care. Regardless, the results show that women on the bench\ndo employ language in their opinions that is not always consistent with an ethics of care and that\nthere is diversity among women (at least on the High Court) in terms of the language style.\nThe next step in this type of study would be to more directly examine whether utilizing language\nassociated with an ethics of care or ethics of justice adds to actual differences of opinion among\nand between the female justices and then among the male versus female justices. Surveying and/\nor interviewing judges to assess their positions on the different voice debate would help shed light\non whether female and male judicial officers feel there is merit in this debate and how it may\nimpact the courts and legal system overall.\n\nReferences\nAllen, David and Diane Wall. 1987. \xe2\x80\x9cThe Behavior of Women State Supreme Court Justices: Are\nThey Tokens or Outsiders?\xe2\x80\x9d Justice System Journal 12 (2): 232\xe2\x80\x93245. 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Casey, 505 U.S. 833 121 S.Ct. 2791\n(1992). https://supreme.justia.com/cases/federal/us/505/833/\nRhode, David W. and Harold J. Spaeth. 1976. Supreme Court Decision Making. New York: W.H.\nFreeman & Co. (\xe2\x86\xb5 Return)\nRhode, Deborah L. 2001. \xe2\x80\x9cThe Unfinished Agenda: Women and the Legal Profession.\xe2\x80\x9d ABA\nCommission\n\non\n\nWomen\n\nin\n\nthe\n\nProfession.\n\nAccessed\n\nNovember\n\n24,\n\n2018.\n\nhttp://womenlaw.law.stanford.edu/pdf/aba.unfinished.agenda.pdf (\xe2\x86\xb5 Return)\nRosenthal, Cindy S. 1998. When Women Lead: Intergrative Leadership in State Legislatures. New\nYork: Oxford University Press. (\xe2\x86\xb5 Return)\nSegal, Jennifer A. 2000. \xe2\x80\x9cRepresentative Decision Making on the Federal Bench: Clinton\xe2\x80\x99s District\nCourt Appointees.\xe2\x80\x9d Political Research Quarterly 53 (1): 137\xe2\x80\x93150. Accessed November 24, 2018.\nhttps://doi.org/10.1177/106591290005300107 (\xe2\x86\xb5 Return)\nShapiro, Martin and Alec Stone Sweet. 2002. \xe2\x80\x9cOn the Law, Politics, and Judicialization.\xe2\x80\x9d Oxford\nScholarship Online. doi 10.1093/0199256489.001.0001. (\xe2\x86\xb5 Return)\nSiegle, Del. 2019. \xe2\x80\x9cEducational Research: Ttest.\xe2\x80\x9d University of Connecticut. Accessed January 2,\n2019. https://researchbasics.education.uconn.edu/t-test/# (\xe2\x86\xb5 Return)\nSonger, Donald R., Sue Davis, and Susan Haire. 1994. \xe2\x80\x9cA Reappraisal of Diversification in the Federal\nCourts: Gender Effects in the Courts of Appeal.\xe2\x80\x9d Journal of Politics 56 (2): 425\xe2\x80\x93439. (\xe2\x86\xb5 Return)\nSupreme Court of the United States. \xe2\x80\x9cSandra Day O\xe2\x80\x99Connor, First Woman on the Supreme Court.\xe2\x80\x9d\nAccessed\n\nNovember\n\n21,\n\n2018.\n\nhttps://www.supremecourt.gov/visiting/\n\nSandraDayOConnor.aspx\nThomas, Susan 1997. \xe2\x80\x9cWhy Gender Matters: The Perceptions of Women Officerholders.\xe2\x80\x9d Women\nand Politics 17 (1): 27\xe2\x80\x9353. https://doi.org/10.1300/J014v17n01_02 (\xe2\x86\xb5 Return)\nThornton, Margaret. 1996. Dissonance and Distrust: Women in the Legal Profession. Australia:\nOxford University Press. (\xe2\x86\xb5 Return)\n140 | Women of SCOTUS\n\n\x0cTiller, Emerson H. and Frank B. Cross. 2006. \xe2\x80\x9cWhat is Legal Doctrine.\xe2\x80\x9d Northwestern University Law\nReview 100 (1): 517\xe2\x80\x93533. (\xe2\x86\xb5 Return)\nTuan Anh Nguyen v. INS, 121 S.Ct. 2053, 533 U.S. 53 (2001). https://supreme.justia.com/cases/\nfederal/us/533/53/\nUnited States Courts. 2019. \xe2\x80\x9cCode of Conduct for United States Judges.\xe2\x80\x9d Accessed January 2, 2019.\nhttps://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges\nUS Legal Definitions. 2019. \xe2\x80\x9cJudicial Independence Law and Legal Definition.\xe2\x80\x9d Accessed January 2,\n2019. https://definitions.uslegal.com/j/judicial-independence/\nWalker, Thomas G. and Deborah J. Barrow. 1985. \xe2\x80\x9cThe Diversification of the Federal Bench: Policy\nand Process Ramifications.\xe2\x80\x9d The Journal of Politics 47 (2): 596\xe2\x80\x93617. doi: 10.2307/2130898 (\xe2\x86\xb5\nReturn)\nWilson, Bertha. 1990. \xe2\x80\x9cWill Women Judges Really Make a Difference?\xe2\x80\x9d Osgoode Hall Law Journal 28\n(3): 507\xe2\x80\x93522. https://digitalcommons.osgoode.yorku.ca/ohlj/vol28/iss3/1 (\xe2\x86\xb5 Return)\n\nClass Activity\nPlease thoughtfully consider and respond to the questions below. You may need to pull up\ninformation online to assist you in your response.\n1. The term judicial independence refers to keeping the judiciary away from encroachments by\nthe political branches of government, meaning the executive and the legislature (US Legal\nDefinitions 2019). The term judicial impartiality refers to judges\xe2\x80\x99 respect and compliance\nwith the law and their acting in a manner that supports and promotes public confidence\n(United States Courts 2019). Bearing these definitions in mind, if all judges are tasked to act\nwith independence and impartiality, does gender diversity matter in the Court? Why or why\nnot?\n2. As the results of the chapter discussion, women judges do not always rule from an ethics of\ncare perspective, and there is diversity among the female justices of the Supreme Court in\nterms of the language style they use. Would you expect to find a similar pattern for female\nlegislators? Would you expect female legislators to legislate in a different voice than their\nmale counterparts? Why or why not?\n3. The analysis presented in this chapter looks at particular types of cases (gender, LGBTQ+,\nWomen of SCOTUS | 141\n\n\x0chealth care, and religious liberty). Would you expect to find similar findings in different issue\nareas? What might those other categories of cases be? What it would mean if the pattern of\nresults with different case areas were the same as discussed in this chapter?\n\n142 | Women of SCOTUS\n\n\x0c6. In a Different Voice\nAn Analysis of How California State Judicial Officers View Gender\nDynamics on the Bench\nJEANINE E. KRAYBILL\n\nAlthough there has been appreciable growth in the number of women attending law school,\nwith the American Bar Association (ABA) reporting in 2018 that women outnumbered men in law\nprograms for the third year in a row (52.4 percent compared to 47.6 percent, respectively), the\nnumber of women holding leadership positions in the field has not kept pace. For example, women\nmake up less than a third of all federal- and state-level judicial officers (Pisarcik 2019). These\nnumbers are even lower regarding women of color, with less than 10 percent serving as judges on\nboth the state and federal level (Jawando and Anderson 2016; National Women\xe2\x80\x99s Law Center Fact\nSheet 2016). Having disproportionately fewer female jurists can have severe implications in terms\nof cultivating a sense of democratic legitimacy in the judiciary, creating leadership opportunities\nfor female judges and attorneys, and fostering occasions for mentoring and networking (Kenney\n2013). A lack of women on the judiciary can also impact case outcomes. For example, Harding (1991)\nargues marginalized groups, such as women, can help create a more objective account of the world\nby pointing out patterns of behavior that the majority group does not recognize. All of these issues\nspeak to why studying women in the legal profession, particularly the judiciary is still of significant\nimportance.\nExamining whether female judges adjudicate and behave differently than their male counterparts,\nand what impact (if any) this has on the legal system and society is still in need of further\ninvestigation. For example, Hunter (2015) notes that some anticipate little difference between\nmale and female judges because they employ principles of judicial independence and impartiality,\nas well as gravitate to well-established legal norms. However, Boyd, Epstein, and Martin (2010)\nshow that a presence of a female judge on a mostly male panel can be influential in rulings on\nsex discrimination cases due to their expertise, experience, or information on such a topic. It\nis important to continue to evaluate if there are any qualitative differences between male and\nfemale judges in order to more fully assess the value and perspective women jurists bring to\nthe court system. An element that helps to assess this is related to what Carol Gilligan (1982)\nreferred to as the \xe2\x80\x9cdifferent voice,\xe2\x80\x9d and what has grown to be known as the \xe2\x80\x9cdifferent voice debate.\xe2\x80\x9d\nThis debate is rooted in the idea that women may be more likely to speak and respond from an\n\xe2\x80\x9cethics of care,\xe2\x80\x9d and men from an \xe2\x80\x9cethics of justice.\xe2\x80\x9d An ethics of care stems from prioritizing\nrelationships, societal connections, and context. An ethics of justice focuses more on individual\nautonomy, choice, and competing individual rights (Botes 2000; French and Weis 2000; Gilligan\nIn a Different Voice | 143\n\n\x0c1982). However, building on Gilligan\xe2\x80\x99s theory, Kraybill (2020) finds that female justices of the US\nSupreme Court use language associated with both an ethics of care and ethics of justice.\nTo give some additional context to the debate and how it frames this study, it is worthwhile\nto briefly highlight some of Gilligan\xe2\x80\x99s (1982) work on the different voice, which included three\ninterview studies: a college student population study focusing on self and identity, an abortion\ndecision study, and a rights and responsibilities study with respondents ranging from ages six\nto sixty. Through her interviews, Gilligan states she observed two distinct voices in relation to\njudgment and action, with women\xe2\x80\x99s voices being distinct and hence having a different style or\ntone. The disparities between women\xe2\x80\x99s and men\xe2\x80\x99s different experiences became apparent, largely\ndue to the lack of women\xe2\x80\x99s representation in theories of psychological development at the time\nand also because of the prevailing idea that male life is the norm and the default lens by which\nfemale development is viewed. Gilligan argues that this leads some to try to fit women into a more\nmale conception of relationships or thinking, yet in her observations she finds that some women\nare more likely to consider moral problems in terms of care and responsibility to relationships as\nopposed to a more masculine outlook of prioritizing rights and rules. Of course, these arguments\nare not without critics: some have accused Gilligan\xe2\x80\x99s work of reinforcing stereotypes about gender\ndifferences (Auerbach, Blum, and Williams 1985). However, this is despite Gilligan (1982) arguing\nthat the different voice is \xe2\x80\x9ccharacterized not by gender but theme\xe2\x80\x9d and that \xe2\x80\x9cits association with\nwomen\xe2\x80\x9d is based on her observations and therefore is not \xe2\x80\x9cabsolute\xe2\x80\x9d and that \xe2\x80\x9cthe contrasts\nbetween male and female voices\xe2\x80\x9d are designed \xe2\x80\x9cto highlight a distinction between two modes of\nthought and to focus a problem of interpretation rather than to represent a generalization about\neither sex\xe2\x80\x9d (p. 2).\nOver the last several decades, Gilligan\xe2\x80\x99s framework of the different voice has been used to examine\nwomen in male-dominated professions, including the judiciary. This being said, some female\njudicial officers have critiqued the concept, including Sandra Day O\xe2\x80\x99Connor, the first female\njustice of the US Supreme Court, who referred to the different voice debate as \xe2\x80\x9cdangerous and\nunanswerable,\xe2\x80\x9d arguing it not only treated women as a monolith but further dichotomized female\nand male virtues. Kenney (2013) also finds that women judges tend to reject this essentialist\nframing. As this debate continues today in examining male and female judges, most attention has\nbeen given to case outcomes. Though these analyses are insightful, they are missing information\nabout how this debate and related issues might be viewed by judicial officers themselves.\nTherefore, this project looks to build on and expand the different voice debate by applying\nelements of the ethics of care and ethics of justice to how judges adjudicate and how they view\nvarious workplace experiences, and to issues of bias, via a survey analysis of California state\njudicial officers. This survey was conducted at various stages through 2019\xe2\x80\x9320. Findings show\nthat women have a heightened awareness regarding the different treatment that some females\nexperience as judicial officers compared to their male counterparts. The results also suggest that\nfemale judges are more open to conducting a self-check on gender bias when adjudicating cases,\n144 | In a Different Voice\n\n\x0care more likely to take into account an individual\xe2\x80\x99s life circumstances, and agree that having more\nwomen and people of color on the bench is important for society.\n\nThe Importance of Gender and Justice\nThe Importance of Examining Issues of Gender and Diversity on the\nBench\nAs Kenney (2013) discusses, courts are powerful institutions of government, entangled and\nweighing in on a variety of issues important to the public. Chief Justice John Roberts of the US\nSupreme Court echoed these sentiments when commenting on how the courts are seemingly\n\xe2\x80\x9cgetting more and more involved in every aspect of society\xe2\x80\x9d (Bump 2019). In looking at the types\nof cases the federal and state court systems hear, it is apparent that many gender-relevant\npublic policy issues such as reproductive rights, health care, and discrimination are inevitably\njudicialized. This judicialization of gender-related issues can become even more pronounced when\nlooking at state-level courts, which exclusively deal with issues of family law such as custody and\ndivorce and in terms of criminal law cases involving battery and rape (Kenney 2013; Silverman\n2016). Thus as the power of the courts grows, and with the cases judicial officers adjudicate\ntouching so many aspects of everyday life, who sits on the bench and how they adjudicate matters.\nThis is of particular importance when looking at state courts, which deal with more than 95\npercent of the nation\xe2\x80\x99s legal cases and continue to be benched by primarily White male judicial\n1\n\nofficers. This gavel gap, which notes the disparity between those who sit on the bench and the\nmakeup of the communities they serve, can foster a sense of distrust among the public toward\nthe courts. Research shows that the lack of diversity on the bench can impact decision-making,\nsince only a majority viewpoint is predominately represented (Chew and Kelley 2009; Florida\nState Courts 2008; Jawando and Anderson 2016). For example, regarding the decision of whether\nto incarcerate, Welch, Combs, and Gruhl (1988) find the presence of Black judges is likely to\nincrease more equal treatment between Black and White defendants. Regarding the lack of well-\n\n1. The gavel gap refers to the symbolic underrepresentation between judicial officers and the\ncommunities they serve. The gavel gap is measured by the proportional difference between the\nnumber of women and minorities serving as judges and the number of women and minorities in the\ngeneral population. Scholars argue that as a way to cultivate trust and legitimacy in the courts/legal\nsystem, judges must be more demographically representative in terms of gender, race, and ethnicity\n(George and Yoon 2018).\nIn a Different Voice | 145\n\n\x0crepresented women and minority judges in our court system, Navarro (2019) and Segal (2000)\nargue that in order to promote the public\xe2\x80\x99s faith in the courts, the bench must be more reflective\nand understanding of the circumstances of the communities they work in.\n\nThe Different Voice Debate\nAs previously noted, scholars began to apply the different voice theory to male and female\njudicial officers, in order to assess if there were differences between them in terms of court case\noutcomes. As Kenney (2013) discusses, consistent differences between male and female judges\nhave not been found. However, she does note that some studies find women appellate judges\nare more likely to rule for the plaintiff in sex discrimination cases and are also more likely to\npersuade their male colleagues on panels to vote with them. Songer, Davis, and Haire (1994) also\nfind evidence of gender differences in sex discrimination cases. Moyer and Haire (2015) find that\nfemale judges who attended law school during a time of extreme gender inequality are more likely\nthan their male counterparts to support plaintiffs in sexual discrimination cases. In examining\ndivorce cases, Martin and Pyle (2005) discover that female judicial officers were more supportive\nof female litigants. They also found that when serving alongside one other female, male judges\nwere more supportive of female litigants. Martin (1987) found that female judges were hesitant\nto embrace different voice arguments, although they were supportive of an increase in women\njudges, arguing that including them on the judiciary better reflects the fabric of society and that a\nwoman and/or a feminist perspective can contribute to better decision-making. Again, in looking\nat how the different voice debate applies to opinions of the Supreme Court, Kraybill (2020) finds\nthat male and female justices do employ different language styles and though female justices use\nrhetoric associated with the ethics of care, they were overall more likely to use words related to\nthe ethics of justice compared to their male counterparts, thus varying from Gilligan\xe2\x80\x99s thesis.\nThe work presented in this chapter builds on the existing scholarship by directly surveying judges\non elements and additions of the different voice debate. Judges wield a lot of discretion over cases\nand the individual parties before them, which inevitably involves moral and ethical dilemmas,\nconcepts central to Gilligan\xe2\x80\x99s (1982) theory. As judges\xe2\x80\x99 influence (particularly at the state level)\ngrows, it is important to continue to evaluate how they may think and respond to related facets of\nthe different voice theory. In doing so, we are able to gain more insight into how judges utilized\ntheir own experiences in adjudicating cases, as well as if male and female judges employ different\nethical reasoning while rendering decisions. By examining a sample of judges in this context from\nthe most populous and heterogeneous state court system in the country, California (California\nCourts 2020a), this chapter gives additional and new insight into the different voice and how this\ntheory relates to issues of judicial behavior and diversity.\n146 | In a Different Voice\n\n\x0cResearch Questions and Expectations\nIn building on the scholarship noted above, this chapter puts forth several questions. The first\nquestion asks if female judicial officers are more likely than their male counterparts to feel that\nthe legal profession is less welcoming to them. I expect female judges will express that the\nlegal profession is less welcoming to them compared to their male counterparts. For example,\nprevious studies have captured female judicial officers expressing how the legal profession is still\ndominated by male norms (Navarro 2019; Kenney 2013). Gilligan\xe2\x80\x99s (1982) theory discusses how\nvarious fields of study have been primarily examined from a male perspective, perpetuating the\nexclusion of women. This question builds on the different voice theory by evaluating how women\nmay feel upon entering a male-dominated profession, such as the judiciary.\nThe second question asks if female judicial officers are more likely to state that their life\nexperience as women leads them to have a different perspective on the bench than their male\ncounterparts. This question stems not only from Gilligan\xe2\x80\x99s (1982) work, which identified some\nwomen having a different perspective due to their position as females in society and the\nsocialization process, but also feminist standpoint theory (FST), which argues that one\xe2\x80\x99s location\nand experience in society play a formative role in developing positions, opinions, and outlooks\n(Martin, Reynolds, and Keith 2002). Therefore, I expect female judicial officers will be more likely\nthan their male counterparts to express that their experiences as women (i.e., mother, wife, and/\nor daughter) have given them a different perspective on the bench.\nThe third research question asks if female judicial officers are more likely to experience different\ntreatment by other judges, attorneys, court staff, and the public than their male counterparts.\nAgain, this expands Gilligan\xe2\x80\x99s theory concerning the idea that if some women have a different\nperspective than their male counterparts when it comes to reasoning over ethical and moral\ndilemmas, that it is intuitive that they may also have a heightened awareness for when and if\nthey are experiencing different treatment. Again, this is also connected to FST, which argues that\nwomen (and other marginalized groups) can experience different treatment than the majority\ngroup (Martin, Reynolds, and Keith 2002). Overall, I expect female judges will express that they\nhave not been treated as well as their male counterparts on the bench\xe2\x80\x94whether by the public,\nstaff, other judges, and/or attorneys.\nThe fourth research question asks if female judicial officers are more likely to administer a selfcheck on bias compared to their male counterparts. Again, building on Gilligan\xe2\x80\x99s (1982) theory\nthat women can approach moral and ethical dilemmas differently from their male counterparts,\nalong with her discussion on how women have been excluded from various professions and\nfields of study, I argue that this can create an increased awareness about discrimination among\nfemale judicial officers, causing them to more regularly administer a self-check on their bias when\nIn a Different Voice | 147\n\n\x0cadjudicating cases compared with male judges. Issues of unconscious bias (social stereotypes\nindividuals hold about certain groups of people that can form outside of their conscious\nawareness: see the University of California San Francisco Office of Diversity and Outreach) have\nbeen raised across a variety of professions and systems of government. Regarding the courts, some\nargue that the risk of not addressing unconscious bias is at the heart of why women or men may\nbe treated differently in court proceedings, as well as harsher sentences being imposed on people\nof color as opposed to Whites (Mitchell and MacKenzie 2004).\nFinally, the fifth question asks if female judicial officers are more likely to express that it is\nimportant to have more women and people of color serving on the bench. Like the questions\nabove, this point builds on Gilligan\xe2\x80\x99s (1982) theory because it centers on how individuals, due\nto their different backgrounds, may represent and work through moral and ethical dilemmas\ndifferently. Again, since women (as a nonmajority group on the bench) may have more awareness\nof this, I expect that they will have a deeper appreciation for greater racial and gender diversity on\nthe bench than their male counterparts.\nThese questions also relate to and build on the different voice debate as they touch on key\nelements connected to the ethics of care and ethics of justice. For example, some female judicial\nofficers have expressed that when running for the bench they are viewed as more honest, fair, and\nnurturing than their male counterparts (characteristics related to the ethics of care). However,\nupon entering their judicial positions, some women express having their credentials questioned,\nalong with commenting on the competitiveness and resentfulness they feel by some male judges\n(Navarro 2019). These questions also point to how female judges may take a more societal context\nin their behavior and reasoning than their male counterparts, which is in line with Gilligan\xe2\x80\x99s\ndiscussion on the ethics of care and justice.\n\nMethodology\nThe California state court system serves a population of over 39.5 million people, or 12 percent\nof the country\xe2\x80\x99s total population (California Courts 2020a). Therefore, California judicial officers\nwere chosen as the unit of analysis in an effort to draw responses from a wide pool of subjects who\ninteract with one of the most diverse populations in the country (World Population Review 2020).\nIn order to examine the research questions noted above, a survey was designed and first launched\nin February 2019 via an online link and available through the California Judges Association\xe2\x80\x99s\nwebsite, and subsequently the organization\xe2\x80\x99s newsletter and magazine, the Voice. To ensure\nenough responses, a mailing list of California judicial officers was also compiled to administer the\nsurvey statewide. The mailing list was based on available judicial rosters throughout the superior\n148 | In a Different Voice\n\n\x0ccourts in California. The hard-copy mailing went out to 1,904 available addresses in June of 2019\nand responses were mailed back through January 2020. The total number of surveys received was\n215 for a response rate of 11.29 percent.\n\n2\n\nSurvey questions were designed based on a review of prior literature regarding the different\nvoice debate, issues of gender and justice, the gavel gap, feedback from presentations given by\nthe researcher on the topic, and discussions with retired judicial officers (not featured in the\nstudy). Survey questions related to the five research questions noted above, along with those that\ncaptured demographic data such as sex, age, race and ethnicity, religious background, political\nparty identification, type of legal education, judicial appointment type, years of experience,\nprimary area of practice, and years of legal experience. A table of descriptive statistics can be\nfound in the appendix; this provides an overview of the sample, along with a coding scheme. In\norder to test the research questions and expectations laid out above, differences of means tests\n3\n\nwere conducted in order to compare male versus female judicial officers\xe2\x80\x99 responses. Survey data\nresults are usually considered significant when the probability (p-value) is at one of three levels:\n(1) p < .001***; (2) p < .01**; (3) p < .10*, with the first p-value range listed being the highest level\nof significance. These are the p-value levels/standards utilized in this chapter to assess levels of\nsignificance.\n\n2. It is important to note that a representative sample is not always guaranteed by the large response\nrate and that lower response rates can occur with postal surveys (Millar and Dillman 2011).\nAdditionally, judicial officers are considered a hard-to-reach population. Scholars point out several\nfactors that make gaining access to judicial officers challenging. One, it can be difficult to navigate\nstaff or gatekeepers who facilitate communication to judicial officers. Two, a judicial officer\xe2\x80\x99s view\non social and behavioral science research may influence their likelihood of participation. And three,\njudges deal with a heavy calendar of cases and may not have time or find a survey important enough\nto respond to (Roach Anleu and Mack 2017; Cowan et al. 2006; Dobbin et al. 2001). Regarding this\nparticular study, postal surveys were mailed to judicial rosters that were available online and may\nnot have been immediately up to date. Overall, the response rate and therefore sample obtained\nhere is higher than several other scholars who have performed other studies with judicial officers.\nFor example, Dobbin et al. (2001) conducted a national study of state trial judges with a sampling\nframe of 9,715 and ended up with a sample of 400 for their nationwide study, which was considered\nacceptable to obtain reasonable levels of confidence in their findings.\n3. A difference of means test is utilized to show the statistical difference when comparing categories\nor groups. Specifically, a difference of means test compares the mean of a variable in one group to\nthe mean of the same variable in another group (Pollock 2016).\nIn a Different Voice | 149\n\n\x0cFindings\nSample Overview\nAs noted above, the sample consisted of 215 California state judicial officers, 90 percent of whom\nare superior court trial judges. The majority of respondents identified as male (60 percent) and\nfemale (40 percent). Most in the sample were White (73.95 percent), with only 10.23 percent\nidentifying as Hispanic, 5.58 percent as Black, 6.51 percent as Asian, .93 percent as Native\nAmerican, and 2.79 percent as other. These sex, race, and ethnicity demographics are fairly in line\nwith the state\xe2\x80\x99s most recent reports (California Courts 2020b). A majority of the respondents were\nover the age of 45, with 6.51 percent ranging from 35 to 45; 30.23 percent from 46 to 55; 34.88\npercent from 56 to 65; and 28.37 percent over the age of 65. Most (92.52 percent) received their\nlegal education through an American Bar Accredited (ABA) law school, with an average of 20.65\nyears of practicing law before serving on the bench (again, please see the appendix for a complete\noverview of the sample).\n\nDifference of Means\nHow Welcoming Is the Legal Profession to Female Attorneys and\nJudicial Officers?\nAs noted above, the first research question examines how welcoming the legal profession is\nto female attorneys and judicial officers. This particular question was coded 0 = no (it is not\nwelcoming), 1 = yes (it is welcoming), and 2 = no opinion (note, this latter option was coded as\nmissing). Overall, 82.17 percent of respondents stated that the legal profession was welcoming to\nfemale attorneys and judicial officers, compared to 14.49 percent who responded \xe2\x80\x9cno,\xe2\x80\x9d and 2.80\npercent who had no opinion on the question. The results of the difference of means test in figure\n1 below show in a comparison of male and female judicial officers, that female respondents are\nslightly less likely to agree that the legal profession is welcoming to them (.8255 compared to men\nat .9218) and the results are significant at p = .08. These findings are consistent with expectations.\n\n150 | In a Different Voice\n\n\x0cFigure 1. Difference of means test: Male versus\nfemale comparison- is the legal profession\nwelcoming to female attorneys and judicial\nofficers?\n\nBuilding on this first question, a related issue in the study examines if respondents felt that\nwomen\xe2\x80\x99s experience as wife, mother, and/or daughter led them to bring a different perspective to\ncourt cases and legal proceedings (coded 1 = yes and 0 = no). Overall, 91.47 percent of respondents\nstated \xe2\x80\x9cyes,\xe2\x80\x9d that a women\xe2\x80\x99s experience does bring a different perspective to court cases and legal\nproceedings. However, counter to expectations, the difference of means tests show that there is\nnot a significant difference between the judicial officers in the study regarding this question/issue\n(with a mean score of .9055 for men and .9285 for women and a p-value of .5594).\nAgain, though the difference of means tests was not significant with regard to this question, the\nnarrative responses provide some interesting insight and implications to consider. For example,\nsome respondents shared sentiments such as \xe2\x80\x9cwomen\xe2\x80\x99s responsibility for child-rearing gives\nfemale judges and attorneys more patience and compassion,\xe2\x80\x9d \xe2\x80\x9cwomen bring intuition and a\nwillingness to listen to all sides before reaching a decision,\xe2\x80\x9d \xe2\x80\x9cfemales have a better perception\nof gender-based issues,\xe2\x80\x9d \xe2\x80\x9csome female judges hear different things from criminal defendants,\xe2\x80\x9d\n\xe2\x80\x9cwomen have a broader concept of justice,\xe2\x80\x9d or \xe2\x80\x9cwomen round out the proceedings, bringing a\nperspective that men, and older men, do not have.\xe2\x80\x9d However, some respondents did express\nfeelings such as \xe2\x80\x9ceveryone brings a different perspective,\xe2\x80\x9d or \xe2\x80\x9cwomen do handle cases differently,\nbut I do not think it\xe2\x80\x99s based on being a wife, mother, or daughter,\xe2\x80\x9d and \xe2\x80\x9ceach person regardless\nof gender brings their own experience to the bench.\xe2\x80\x9d Responses and comments indicating that\na woman\xe2\x80\x99s life experience brings a unique and different perspective are consistent with some\nwho argue that women can bring a sense of \xe2\x80\x9cgendered sensibility\xe2\x80\x9d to judicial decision-making\nby considering their unique perspective as women and mothers, balancing work and family\nresponsibilities, as well as dealing with sexism and discrimination (Hunter 2015; Hale and Hunter\n2008).\n\nIn a Different Voice | 151\n\n\x0cDifferent Treatment of Female Judges and Attorneys\nThe third research question asked respondents if they have witnessed female judges and/or\nfemale attorneys being treated differently from their male counterparts, either by colleagues\n(i.e., other judges or attorneys), witnesses, members of the jury/jury pool, court staff, and so\non (coded 1 = yes and 0 = no). Overall, 68.54 percent of respondents stated that \xe2\x80\x9cyes,\xe2\x80\x9d they had\nwitnessed female judges or attorneys being treated differently from their male counterparts. In\nline with expectations, the difference of means tests in figure 2 shows that female judicial officers,\nin particular, were significantly more likely to state they had witnessed or experienced different\ntreatment. For example, some shared that they have had their rulings questioned by fellow judges\nand attorneys, and overall they are not treated with the same level of respect as their male\ncounterparts (with female respondents showing a mean score of .872 compared to .559 for males\nat a p-value of .000).\n\nFigure 2. Difference of means test: Male versus\nfemale comparison- different treatment of female\njudicial officers and/or attorneys\n\nThe difference of means tests above also suggests interesting implications. One theme that\narises is that women tend to be more aware of different treatment based on gender and have a\nheightened sense of gender dynamics in their role as judge. When providing examples of the type\nof different treatment witnessed, 33 percent of respondents noted that either they themselves, or\nother female judicial officers, have had their professional title omitted, with attorneys, plaintiffs,\ndefendants, and/or staff sometimes referring to them as \xe2\x80\x9cMiss\xe2\x80\x9d as opposed to \xe2\x80\x9cJudge\xe2\x80\x9d or \xe2\x80\x9cYour\nHonor.\xe2\x80\x9d Along similar lines, some female respondents stated, \xe2\x80\x9cmen automatically receive more\ndeference and are rarely misidentified.\xe2\x80\x9d Some discussed the reason for different treatment of male\nand female judicial officers can be related to \xe2\x80\x9csociety not accepting female authority\xe2\x80\x9d and that\n\xe2\x80\x9cstrict female judges can be viewed as aggressive or bitchy.\xe2\x80\x9d Other female respondents shared\nsentiments such as, \xe2\x80\x9cfemale attorneys treat female judges with less respect than they would a\nmale judge.\xe2\x80\x9d A male judge echoed these comments by stating, \xe2\x80\x9cFemale judges do not get the same\nrespect as their male counterparts by other bench officers, attorneys, and staff. Female attorneys\nand staff have issues with a female being in a superior position.\xe2\x80\x9d However, some male respondents\n152 | In a Different Voice\n\n\x0cshared that they\xe2\x80\x99ve seen bad treatment \xe2\x80\x9chappen to all genders,\xe2\x80\x9d or that treatment of women judges\n\xe2\x80\x9cimproved in recent years,\xe2\x80\x9d or that they worked in \xe2\x80\x9cdiverse communities and had seen males and\nfemales treated alike.\xe2\x80\x9d\n\nSelf-Check on Gender Bias\nThe fourth research question asked respondents if they administer a self-check on their own\ngender bias when making a ruling in a court case (coded 1 = yes and 0 = no). Overall, 77 percent\nof respondents stated \xe2\x80\x9cyes,\xe2\x80\x9d they do administer a self-check on bias, while 23 percent said they\ndid not. The difference of means tests in figure 3 below show that female judicial officers were\nsignificantly more likely to state that they make an effort or have a self-check gender bias process\nwhen making a court ruling, with female respondents reporting a mean score of .853 and .685 at\nan overall p-value of .003.\n\nFigure 3. Difference of means test: Male versus\nfemale comparison on gender bias self-checks\n\nIt is also important to note that overall, 34 percent of the total respondents described their selfcheck bias process as \xe2\x80\x9creversing genders and/or race\xe2\x80\x9d of the parties in a case. However, as the\ndifference of means tests show, female judicial officers also responded at a higher rate that \xe2\x80\x9cyes,\xe2\x80\x9d\nthey administered a regular self-check on potential bias, and these results were significant. Some\nfemale judges who also provided a narrative response to the question shared that they reverse the\ngenders in family law and/or domestic violence cases so that they are not favoring the mother\nor woman by default. However, one female judge stated, \xe2\x80\x9cI check to make sure I am not biased\nagainst other women, in my experience women often can create more barriers for other women.\xe2\x80\x9d\nOthers expressed that as mothers themselves, they can be harder on female defendants either in\ncriminal court or in family law disputes. Although the results show more female judicial officers\nadministered a self-check on bias, some women stated they did not, with one in particular sharing,\n\xe2\x80\x9cI don\xe2\x80\x99t believe I have a gender bias, but this question alone makes me think maybe I should selfcheck anyway.\xe2\x80\x9d Several male judges also shared they did not conduct such a process, explaining\nthat they \xe2\x80\x9crely on the evidence to dictate the outcome\xe2\x80\x9d or that they \xe2\x80\x9csaw no reason for doing so.\xe2\x80\x9d\nIn a Different Voice | 153\n\n\x0cIs It Important to Have More Women and People of Color Serving as\nJudicial Officers?\nThe final research questions asked respondents if it is important to have more women and people\nof color serving as judicial officers. Regarding the issue of having more women serving as judicial\nofficers, 89.57 percent of participants responded \xe2\x80\x9cyes.\xe2\x80\x9d Again, coded as 1 for \xe2\x80\x9cyes\xe2\x80\x9d and 0 for \xe2\x80\x9cno,\xe2\x80\x9d\nthe results in figure 4 show that female respondents were slightly and significantly more likely to\nstate it is important to have more women serving as judicial officers (.941 compared to .865 with a\np-value of .0767), which is in line with expectations.\n\nFigure 4. Difference of means test: Male versus\nfemale comparison- importance of more women\nserving as judicial officers\n\nRegarding the question of whether it is important to have more people of color serving as judicial\nofficers, 91.08 percent of respondents stated \xe2\x80\x9cyes.\xe2\x80\x9d Again, in line with expectations, the results of\nthe difference of means tests show in figure 5 that female respondents were again slightly and\nsignificantly more likely to affirm this than their male counterparts (.9634 to .8828 with a p-value\nof .10).\n\nFigure 5. Difference of means test: Male versus\nfemale comparison- importance of more people of\ncolor serving as judicial officers\n\nIn discussing why it is important to have a diverse bench in terms of sex, race, and ethnicity, a\nmajority of respondents (60.46 percent) indicated that it promotes public trust in the judiciary\n154 | In a Different Voice\n\n\x0cand legitimacy in institutions of government, that women and people of color bring a different\nperspective to the bench, and that it is generally more representative of society. However, some\nrespondents did add that \xe2\x80\x9cqualified\xe2\x80\x9d judges are what is needed, making comments such as, \xe2\x80\x9cThese\nare all important considerations but of significantly less importance than intellectual capabilities,\nexperience, and temperament; none of the latter qualities are gender- or race-based.\xe2\x80\x9d Others\nsaid what mattered most was that the \xe2\x80\x9cbest person for the job\xe2\x80\x9d was appointed, elected, or hired.\nSome respondents expressed that it mattered more on a court-by-court basis, sharing, \xe2\x80\x9cYou don\xe2\x80\x99t\nnecessarily need more women or people of color as judicial officers, it depends on the current\nmake-up of the judicial district.\xe2\x80\x9d\n\nDiscussion and Implications\nOverall, the findings demonstrate that some female judicial officers have different experiences\non the bench compared to their male counterparts and that these differences can be related\nto gender dynamics within the institution and society and hence extended elements of the\ndifferent voice debate. The results demonstrate that female judicial officers can contextualize\ntheir experiences differently due to their position as women, which gives them the potential to\nhave a broader scope and style of jurisprudence; as some respondents stated, \xe2\x80\x9cwomen help to\ngive form to the human, non-legal part of the job,\xe2\x80\x9d \xe2\x80\x9chave a more holistic viewpoint,\xe2\x80\x9d and may be\n\xe2\x80\x9cmore flexible\xe2\x80\x9d and \xe2\x80\x9csensitive\xe2\x80\x9d in dealing with parties in a case. Therefore, the results suggest some\nfemale judges can bring forth dynamics of the ethics of care as it relates to the different voice\ndebate in court proceedings. As the first female Supreme Court Justice of Canada, Bertha Wilson,\nargued, women judges have the potential to bring a \xe2\x80\x9cnew humanity\xe2\x80\x9d to court proceedings and can\nmake a difference by viewing cases in terms of a larger societal picture and impact (Wilson 1990).\nFurthermore, female judges were more likely to respond that having more women and people\nof color on the bench is important, compared to their male counterparts; both results were\nsignificant. Again, these findings demonstrate a pattern that may suggest that female judicial\nofficers have not only faced experiences different from their male counterparts on the bench but\nthat some of those experiences have been steeped in gender and racial dynamics. For example,\nPatricia Hill Collins (2000) discusses how Black women\xe2\x80\x99s experiences as an oppressed group\ncan shape their position in society and impact their professional opportunities. Due to the level\nof systemic oppression women of color have faced (professionally and politically), they can be\nroutinely denied opportunities that are available to Whites. These results also suggest an element\nin line with Gilligan\xe2\x80\x99s (1982) theory on the different voice with regard to women operating and\nassessing moral and social dilemmas from an ethics of care perspective, which again argues that\n\nIn a Different Voice | 155\n\n\x0csome women are more likely to take notice of, experience, and/or consider a variety of contextual\nfactors, such as sensitivity to bias, race, male-dominated environments, and so on.\nTo conclude, future research should continue to build on and expand Gilligan\xe2\x80\x99s (1982) work by\nevaluating whether patterns relating to the different voice exist across judicial officers, paying\ncloser attention to race and sexual orientation of judges in order to examine the theory in a\nbroader, less binary fashion. Moreover, though the findings presented here show evidence of\nthe different voice theory at play with judicial behavior and perspectives, future studies should\nexamine if differences between male and female judicial officers lessen with the amount of\ntime they spend on the bench; that is, do judges, regardless of background, eventually comport\nand converge to professional norms and focus more intently on key principles, such as judicial\nindependence?\n\nActivity: The Different Voice Debate, Gender Diversity, and Bias\nMore recently, states such as California, Connecticut, New Jersey, and Washington have either\ncreated task forces to study issues of bias in the courts or called for judges to give consideration to\nissues of implicit bias as a way to combat discrimination (Schwartzapfel 2020). Several initiatives\nare specifically unfolding in California regarding the courts and issues of implicit bias. For\nexample, California is one of the first states to implement antibias practices via statutory mandate,\nwith the passage of Assembly Bill 242 on October 2, 2019, authorizing the state\xe2\x80\x99s Judicial Council to\ndevelop, implement, and require training on implicit bias for all court employees (judges and staff)\neffective January 1, 2021, and compliance by licensed state attorneys by January 31, 2023. On July\n1, 2020, the California State Supreme Court issued a revised \xe2\x80\x9crule of court\xe2\x80\x9d (an order governing a\npolicy, procedure, and/or regulation of the court) prohibiting bias of any kind in the state\xe2\x80\x99s judicial\nsystem. The rule also requires the creation of committees that include members of courts\xe2\x80\x99 local\nbar associations to assist in maintaining bias-free environments, educational programs, and the\ndevelopment of procedures for receiving complaints related to issues of bias (California Rules of\nCourt 2020).\nBearing the above discussion on bias in mind, along with the findings in this chapter, you are asked\nto engage in the following activities:\n1. Visit Harvard University\xe2\x80\x99s Project Implicit. Designed in the early 1990s to help address\nissues of unconscious bias, this test has been used by judicial officers to bring awareness\nto their own potential for bias. Take the Gender-Career, Gender-Science, and Skin-tone\nImplicit Association Tests. What were your results? Did you have a high or low level of\n156 | In a Different Voice\n\n\x0cbias regarding these categories? Note, there is a debate over how effective taking these\ntests is in actually combatting bias (Oswald et al. 2013). Do you think they help,\nparticularly with regard to judges addressing issues of gender and/or racial\ndiscrimination in the courtroom? Why or why not? Recalling the findings presented in\nthis chapter on the different voice debate, do you think female judicial officers are better\nat recognizing bias in the courtroom than their male counterparts? Why or why not?\n2. Does your state\xe2\x80\x99s court system have any current or pending initiatives to address\nimplicit bias in legal proceedings? You may want to visit your state court\xe2\x80\x99s website or\nsearch your state legislature\xe2\x80\x99s bill docket. If so, what are the purposes and requirements\nof these initiatives? Do you agree or disagree with these efforts? Why or why not?\n3. Each state has a trial court system. Sometimes they are called \xe2\x80\x9csuperior courts,\xe2\x80\x9d as is the\ncase in California, or \xe2\x80\x9ccircuit courts,\xe2\x80\x9d as is the case in Oregon. Local trial courts have\njudicial officer rosters that provide the names of the judges serving on the bench for that\nparticular court. Visit your local trial court website and search for the court\xe2\x80\x99s judicial\nroster. At first glance, are you able to detect how many male versus female judicial\nofficers are seated on the bench? Does the proportion mimic the greater population\nthey serve or is there a gavel gap? How might the gender makeup of your local court\nimpact local issues in your community, as well as case experiences for legal parties and/\nor outcomes?\n4. Building on question 2, contact the clerk of your local trial court and ask if you can\nplease interview one of the judicial officers for this exercise and/or class. Note that the\ninterview will take approximately 15 to 30 minutes of the judge\xe2\x80\x99s time. Depending on\nyour local court\xe2\x80\x99s visiting procedures you can conduct the interview (for class purposes\nonly) via phone, over Zoom, or in person. During the interview, you may want to ask the\njudge the following questions:\na. How and why did they become a judicial officer?\nb. What are the types of trials they oversee?\nc. Have they heard of the different voice debate (if not, explain using the information\npresented in this chapter)? Do they agree or disagree with its major premise(s)?\nd. Have they have experienced men or women being treated differently in the legal\nsystem?\ne. Are they are required to complete or participate in ongoing unconscious bias\ntraining?\nf. Do they think male and female judges bring different perspectives to the bench\nbased on their life experiences?\ng. Does diversity on the bench in terms of race, ethnicity, and sex help to promote\ngreater public trust in and legitimacy of the judicial system?\n\nIn a Different Voice | 157\n\n\x0cReflect. Were you surprised by any of their responses? With the judge\xe2\x80\x99s permission, ask your\nprofessor if you can share their responses with the class in a short presentation.\n\nReferences\n\xe2\x80\x9cAssembly Bill 242.\xe2\x80\x9d 2019\xe2\x80\x9320. California State Legislature. Accessed August 24, 2020.\nhttps://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB242.\nAuerbach, Judy, Linda Blum, Vicki Smith, and Christine Williams. 1985. On Gilligan\xe2\x80\x99s In a Different\nVoice.\xe2\x80\x99 Feminist Studies, 11(1): 149-161.\nBotes, Annatjie. 2000. \xe2\x80\x9cA Comparison Between the Ethics of Justice and the Ethics of Care.\xe2\x80\x9d Journal\nof Advanced Nursing, 32(5): 1071-1075. doi: 10.1046/j.1365-2648.2000.01576.x.\nBoyd, Christina, Lee Epstein, and Andrew D. Martin. 2010. \xe2\x80\x9cUntangling the Causal Effects of Sex on\nJudging.\xe2\x80\x9d American Journal of Political Science 54 (2): 389\xe2\x80\x93411.\nBump, Phillip. 2019. \xe2\x80\x9cChief Justice Roberts Laments Having to Do Congress\xe2\x80\x99s Job.\xe2\x80\x9d Washington Post,\nSeptember 24, 2019. https://www.washingtonpost.com/politics/2019/09/25/chief-justiceroberts-laments-having-do-congresss-job/.\nCalifornia\n\nCourts.\n\n2020a.\n\n\xe2\x80\x9cAbout\n\nCalifornia\n\nCourts.\xe2\x80\x9d\n\nAccessed\n\nMarch\n\n31,\n\n2020.\n\nData.\xe2\x80\x9d\n\nAccessed\n\nMarch\n\n31,\n\n2020.\n\nhttps://www.courts.ca.gov/2113.htm.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94.\n\n2020b.\n\n\xe2\x80\x9cJudicial\n\nOfficer\n\nDemographic\n\nhttps://www.courts.ca.gov/13418.htm.\nCalifornia Rules of Court. 2020. \xe2\x80\x9cSection 10.20 Court\xe2\x80\x99s Duty to Prohibit Bias.\xe2\x80\x9d California Courts.\nhttps://www.courts.ca.gov/cms/rules/index.cfm?title=standards&linkid=standard10_20.\nChew, Pat K. 2009. \xe2\x80\x9cMyth of the Color-Blind Judge: An Empirical Analysis of Racial Harassment\nCases.\xe2\x80\x9d Washington University Law Review 86 (5): 1117\xe2\x80\x9366.\nCowan, Dave, Sarah Blandy, Emma Hitchings, Caroline Hunter, and Judy Nixon. 2006. \xe2\x80\x9cDistrict\nJudges and Possession Proceedings.\xe2\x80\x9d Journal of Law and Society 33 (4): 547\xe2\x80\x9371.\nDobbin, Shirley A., Sophia I. Gatowski, Gerlad P. Ginsburg, Mara L. Merlino, Veronica Dahir, and\nJames T. Richardson. 2001. \xe2\x80\x9cSurveying Difficult Populations: Lessons Learned from a National\nSurvey of State Trial Court Judges.\xe2\x80\x9d Justice System Journal 22 (3): 287\xe2\x80\x93314.\n158 | In a Different Voice\n\n\x0cGeorge, Tracey E., and Albert H. Yoon. 2018. \xe2\x80\x9cThe Gavel Gap: Who Sits in Judgment on State\nCourts?\xe2\x80\x9d American Constitution Society for Law and Policy. https://gavelgap.org/pdf/gavelgap-report.pdf.\nGilligan, Carol. 1982. In a Different Voice: Psychological Theory and Women\xe2\x80\x99s Development.\nCambridge, MA: Harvard University Press.\nHale, Brenda, and Rosemary Hunter. 2008. \xe2\x80\x9cA Conversation with Baroness Hale.\xe2\x80\x9d Feminist Legal\nStudies 16:237\xe2\x80\x9348.\nHarding, Susan. 1991. Whose Science? Whose Knowledge? Thinking from Women\xe2\x80\x99s Lives. Ithaca, NY:\nCornell University Press.\nHill Collins, Patricia. 2000. Black Feminist Thought: Knowledge, Consciousness, and the Politics of\nEmpowerment. Revised Tenth Anniversary Edition. 2nd ed. New York: Routledge.\nHunter, Rosemary. 2015. \xe2\x80\x9cMore Than Just a Different Face? Judicial Diversity and DecisionMaking.\xe2\x80\x9d Current Legal Problems 68:119\xe2\x80\x9341.\nJawando, Michele L. and Allie Anderson. 2016. \xe2\x80\x9cRacial and Gender Diversity Sorely Lacking in\nAmerica\xe2\x80\x99s\n\nCourts.\xe2\x80\x9d\n\nAmerican\n\nProgress.\n\nAccessed\n\nMarch\n\n31,\n\n2020.\n\nhttps://www.americanprogress.org/issues/courts/news/2016/09/15/144287/racial-andgender-diversity-sorely-lacking-in-americas-courts/.\nKenney, Sally J. 2013. Gender and Justice: Why Women in the Judiciary Really Matter. New York:\nRoutledge.\nKraybill, Jeanine E. 2020. \xe2\x80\x9cWomen of SCOTUS: An Analysis of the Different Voice Debate.\xe2\x80\x9d In Open\nJudicial Politics, edited by Rorie Spill Solberg, Jennifer Segal Diascro, and Eric Walternburg,\n91\xe2\x80\x93111. Corvallis: Oregon State University Press.\nMartin, Elaine. 1987. \xe2\x80\x9cGender and Judicial Selection: A Comparison of the Reagan and Carter\nAdministrations.\xe2\x80\x9d Judicature 71(3): 136-142.\nMartin, Elaine and Barry Pyle. 2005. \xe2\x80\x9cState High Courts and Divorce: The Impact of Judicial\nGender.\xe2\x80\x9d University of Toledo Law Review 36 (4): 923\xe2\x80\x93948.\nMartin, Patricia Yancey, John R. Reynolds, and Shelley Keith. 2002. \xe2\x80\x9cGender Bias and Feminist\nConsciousness among Judges and Attorneys: A Standpoint Theory of Analysis.\xe2\x80\x9d Signs 27 (3):\n665\xe2\x80\x93701.\nMillar, Morgan M., and Don A. Dillman. 2011. \xe2\x80\x9cImproving Response to Web and Mixed-Mode\nSurveys.\xe2\x80\x9d Public Opinion Quarterly 75 (2): 249\xe2\x80\x9369.\nIn a Different Voice | 159\n\n\x0cMitchell, O jmarrh, and Doris L. MacKenzie. 2004. \xe2\x80\x9cThe Relationship between Race, Ethnicity, and\nSentencing Outcomes: A Meta-analysis of Sentencing Research.\xe2\x80\x9d Report, National Institute of\nJustice. https://www.ncjrs.gov/pdffiles1/nij/grants/208129.pdf.\nMoyer, Laura P., and Susan B. Haire. 2015. \xe2\x80\x9cTrailblazers and Those That Followed: Personal\nExperiences, Gender, and Judicial Empathy.\xe2\x80\x9d Journal of the Law and Society Association 49 (3):\n665\xe2\x80\x9389.\nNational Women\xe2\x80\x99s Law Center. 2016. \xe2\x80\x9cNWLC Fact Sheet.\xe2\x80\x9d Accessed July 12, 2020. https://nwlc.org/\nwp-content/uploads/2016/07/JudgesCourtsWomeninFedJud7.14.16.pdf.\nNavarro, J. Renee. n.d. \xe2\x80\x9cUnconscious Bias.\xe2\x80\x9d University of California, San Francisco Office of\nDiversity and Outreach. Accessed July 17, 2020. https://diversity.ucsf.edu/resources/\nunconscious-bias.\nNavarro, Sharon A. 2019. \xe2\x80\x9cLatinas and the Texas Judiciary: The Intersection of Race, Gender,\nand Judiciary.\xe2\x80\x9d In Race, Gender, Sexuality, and the Politics of the American Judiciary, edited by\nSamantha L. Hernandez and Sharon A. Navarro, 36\xe2\x80\x9352. Cambridge: Cambridge University Press.\nOswald, Frederick L., Gregory Mitchell, Hart Blanton, James Jaccard, and Philip E. Tetlock. 2013.\n\xe2\x80\x9cPredicting Ethnic and Racial Discrimination: A Meta-analysis of IAT Criterion Studies.\xe2\x80\x9d Journal\nof Personality and Social Psychology 105 (2): 171\xe2\x80\x9392.\nPew Research Center. 2018. \xe2\x80\x9cWhy America\xe2\x80\x99s \xe2\x80\x98Nones\xe2\x80\x99 Don\xe2\x80\x99t Identify with a Religion.\xe2\x80\x9d August 8, 2018.\nhttps://www.pewresearch.org/fact-tank/2018/08/08/why-americas-nones-dont-identifywith-a-religion/.\nPisarcik, Ian. 2019. \xe2\x80\x9cWomen Outnumber Men in Law School Classrooms for Third Year in a Row but\nStatistics Don\xe2\x80\x99t Tell the Full Story.\xe2\x80\x9d Jurist, March 5, 2019. https://www.jurist.org/commentary/\n2019/03/pisarcik-women-outnumber-men-in-law-school/.\nPollock, Philip. H. 2016. The Essentials of Political Analysis, 5th Edition. Washington, D.C.: CQ Press.\nRoach Anleu, Sharyn, and Kathy Mack. 2017. Performing Judicial Authority in the Lower Courts. New\nYork: Palgrave Macmillan.\nRoot, Danielle, Jake Faleschini, and Grace Oyenubi. 2019. \xe2\x80\x9cBuilding a More Inclusive Judiciary.\xe2\x80\x9d\nCenter for American Progress, October 3, 2019. https://www.americanprogress.org/issues/\ncourts/reports/2019/10/03/475359/building-inclusive-federal-judiciary/.\nSchwartzapfel, Beth. 2020. \xe2\x80\x9cA Growing Number of State Courts Are Confronting Unconscious\nRacism\n\nin\n\n160 | In a Different Voice\n\nJury\n\nSelection.\xe2\x80\x9d\n\nThe\n\nMarshall\n\nProject,\n\nNovember\n\n5,\n\n2020.\n\n\x0chttps://www.themarshallproject.org/2020/05/11/a-growing-number-of-state-courts-areconfronting-unconscious-racism-in-jury-selection.\nSegal, Jennifer A. 2000. \xe2\x80\x9cRepresentative Decision Making on the Federal Bench: Clinton\xe2\x80\x99s District\nCourt Appointees.\xe2\x80\x9d Political Research Quarterly 53 (37): 137\xe2\x80\x9350.\nSilverman, Bradley. 2016. \xe2\x80\x9cFederal Questions and the Domestic-Relations Exception.\xe2\x80\x9d Yale Law\nJournal 125(5): 1364\xe2\x80\x93427.\nWelch, Susan, Michael Combs, and John Gruhl. 1988. \xe2\x80\x9cDo Black Judges Make a Difference?\xe2\x80\x9d\nAmerican Journal of Political Science 32 (126): 126\xe2\x80\x9336.\nWilson, Bertha. 1990. \xe2\x80\x9cWill Women Judges Really Make a Difference?\xe2\x80\x9d Osgoode Hall Law Review\nJournal 28 (3): 507\xe2\x80\x9322.\nWorld Population Review. 2020. \xe2\x80\x9cCalifornia Population 2020.\xe2\x80\x9d Accessed March 31, 2020.\nhttps://worldpopulationreview.com/states/california-population/.\n\nIn a Different Voice | 161\n\n\x0cAppendix\nSex\n\nMale: 60.5%\nFemale: 40%\n\nAppointment Type\n\nGovernor: 71.16%\nElected: 14.88%\nHired: 13.02%\nOther: 0.93%\n\nType of Judicial Officer\n\nTrial: 89.3%\nAppellate Judge: 1.4%\nCommissioner: 8.37%\nSomething Else: 0.93%\n\nAge\n\n35 to 45: 6.51%\n46 to 55: 30.23%\n56 to 65: 28.37%\nAbove 65: 2.85%\n\nRace and Ethnicity\n\nWhite: 73.95%\nBlack: 5.58%\nHispanic: 10.23%\nNative American: 0.93%\n\nReligion\n\nProtestant: 21.86%\nCatholic: 26.05%\nOrthodox: 1.40%\nJewish: 15.35%\nMuslim: 0.93%\nBuddhist: 0.93%\nHindu: 0.93%\nAtheist: 3.26%\nAgnostic: 9.30%\nNothing in particular: 15.81%\nSomething else: 4.19%\n\nParty Identification\n\nDemocratic Party: 62.26%\nRepublican Party: 15.57%\nLibertarian Party: 0.94%\nNo Party Preference: 21.23%\n\nType of Legal Education\n\nAmerican Bar Association: 92.52%\nState Bar Accredited: 6.54%\nOther: 0.93%\n\nAverage Number of Years Practicing\n\n20.65\n\nAverage Number of Years on the Bench 11.22\nSample Descriptive Statistics\n\nSurvey question coding scheme:\n1. In your opinion, is the legal profession welcoming to female attorneys and judicial officers?\n1 = Yes\n162 | In a Different Voice\n\n\x0c0 = No\n2 = No opinion (note: coded as missing in analysis)\n2. Do you think that some women\xe2\x80\x99s experiences as a wife, mother, and daughter lead them to\nbring a different perspective to court cases and legal proceedings?\n1 = Yes\n0 = No\n3. Have you witnessed female judges and/or female attorneys being treated differently from\ntheir male counterparts, either by colleagues (other judges and/or attorneys), witnesses,\nmembers of the jury/jury pool, court staff, or others? For example, not addressed with their\nhonorific or proper professional title, treated with a different level of respect, and so on?\n1 = Yes\n0 = No\n4. Do you make an effort or have a process to self-check your own gender bias when making\ncourt rulings?\n1 = Yes\n0 = No\n5. Is it important to have more women serving as judicial officers?\n1 = Yes\n0 = No\n6. Is it important to have more people of color serving as judicial officers?\n1 = Yes\n0 = No\n\nIn a Different Voice | 163\n\n\x0c7. Walking on Broken Glass\nJustice Gender in State Supreme Court Citations\nSHANE A. GLEASON, SCOTT A. COMPARATO, AND CHRISTINE M. BAILEY\n\nState supreme courts sit at the apex of the state judiciary. While their decisions can be reviewed by\nthe US Supreme Court in some issue areas, the decisions of state supreme courts are often final.\nState supreme courts\xe2\x80\x99 importance has grown over the past forty years because of transformations\nof the social, legal, and political landscape resulting in tangible changes in the operation and\nperception of state supreme courts (Calderone, Canes-Wrone, and Clark 2009; Cann and Yates\n2008; 2016). Interest groups are increasingly turning to state courts to pursue their policy goals\n(Kane 2017; 2018). Judicial elections are becoming more contentious and expensive (Bonneau and\nHall 2009; Gibson 2012; Hall 2001; Kritzer 2007; Nelson, Caulfield, and Martin 2013). There has also\nbeen a precipitous rise in the professionalism\xe2\x80\x94an aggregate measure of the salary and resources\navailable\xe2\x80\x94of many state courts, with changes in how they are organized and administered (Squire\n2008). However, one of the most important differences is with the ability to alter the very content\nof case law is the identity of the jurists staffing state supreme courts.\nIn an era of rapid transformation on state supreme courts, one of the most visible shifts is to the\nimmutable characteristics of the judges sitting on the bench. Far from the days when Florence\nAllen made history as the first female state supreme court justice in 1922 (Norgren 2018), women\nnow constitute the majority of justices on ten state supreme courts (Ritter 2019). Particularly as\nscholars note that women bring a distinct perspective to judicial decision-making under certain\nconditions (e.g., Boyd, Epstein, and Martin 2010; Gleason, Jones, and McBean 2017; Haire and\nMoyer 2015), the inclusion of women on the bench could alter the substantive content of opinions.\nThis could result in then judge Sonia Sotomayor\xe2\x80\x99s suggestion that \xe2\x80\x9ca wise Latina woman with\nthe richness of her experiences would more often than not reach a better conclusion than a\nwhite male who hasn\xe2\x80\x99t lived that life\xe2\x80\x9d (Sotomayor 2002). In essence, Sotomayor suggests that lived\nexperiences bring a distinct understanding to the law (see also: Boyd, Epstein, and Martin 2010;\nGlynn and Sen 2015). In this instance, that means an increasing number of women on a state\nsupreme court results in a different kind of case law than that developed by a male justice.\nWhile scholars hold that women bring a distinct voice to the legal process, the question then\nbecomes, Where can we observe a distinct female voice in state supreme court opinions? Scholars\nhave explored the role of judge gender in judicial behavior, albeit mostly at the federal level,\nin a number of different ways. Many scholars explore this through vote direction (e.g., Collins,\nManning, and Carp 2010; Songer, Davis, and Haire 1994; Scheurer 2014; Boyd, Epstein, and Martin\n164 | Walking on Broken Glass\n\n\x0c2010; Gleason 2019; Szmer, Christensen, and Kaheny 2015). However, by focusing on the judge\nvote, these studies limit their analysis to the immediate case. This is problematic since we often\ncare about decisions because of their impact beyond the case at hand. For instance, Roe v. Wade\nis often in the news because the core finding of that decision\xe2\x80\x94namely, that the constitutional\nright to reproductive privacy is inclusive of abortion\xe2\x80\x94shapes many subsequent decisions and the\npolicy space available to legislatures. In other words, we care about Roe not because the Court\nsplit five to four, with Justice Brennan supporting Jane Roe and Justice Rehnquist supporting the\nState of Texas, but because it is a controlling precedent that shapes later decisions. To this end,\nhad subsequent courts ignored Roe in the years after it was decided, we would likely not care very\nmuch about the decision today. Thus it makes sense for us to explore judicial impact through an\nanalysis of how future courts respond to precedent.\nPrecedent can often be observed through citations. When an opinion is cited, it gives the author\ninfluence well beyond the immediate parties of the case at hand (Fowler and Jeon 2008) and\nshapes the options available to later courts deciding similar cases (Hansford and Spriggs 2006). It\nis important to distinguish that on state supreme courts, citations can come in two distinct forms:\nvertical and horizontal. When a justice writes an opinion, there are certain opinions that must be\nincluded. It would be exceptionally strange, for instance, for the Massachusetts Supreme Judicial\nCourt to issue a ruling on marriage equality that does not reference Goodridge v. Department of\nPublic Health, the case that made Massachusetts the first state to legalize same-sex marriage. In\nthis instance, Goodridge is a vertical citation. It was decided by the Massachusetts court and is\ntherefore a binding precedent for the state supreme court and its inferior courts. But the need to\ncite Goodridge changes if we shift our focus to the Illinois Supreme Court. For Illinois, Goodridge\nis not a binding precedent; any decision to cite it is entirely at the discretion of the Illinois court.\nThese latter citations, termed horizontal citations because they occur between coequal courts,\nare where we focus for the rest of the chapter. Citing a decision horizontally is not legally required\nand thus represents the cited court choosing to allow the decision of the cited court to shape\nits own case law. We now turn to an overview of previous work on horizontal citations. We then\ndevelop expectations about how opinion author gender might shape horizontal citations before\nsubsequently testing our expectations.\n\nExplaining Citations\nCitations spread between state supreme courts in much the same way that ideas about legislation\nspread between state legislatures. When Colorado and Washington implemented legalized\nrecreational marijuana in 2012, several other state legislatures soon \xe2\x80\x9ccopied\xe2\x80\x9d their approach. In\nbrief, legislators learn from the experiences of other states and seek to emulate successful policies\nWalking on Broken Glass | 165\n\n\x0c(Walker 1969; Berry and Berry 1990). State supreme courts likewise often turn to decisions made\nby peer courts rather than writing an opinion from scratch. Simply put, if another state supreme\ncourt has previously dealt with a legal issue, it makes little sense to \xe2\x80\x9creinvent the wheel\xe2\x80\x9d when\na court can draw on a persuasive and successful framework developed by a peer court (Shapiro\n1965; 1970). Of course, state supreme courts will not copy just any legal argument. A number\nof scholars note that state supreme courts utilize citations from courts that resemble them in\nsome way and those with reputations for producing high-quality opinions. To use the language\nof citation scholars, courts often horizontally cite proximate and prestigious peer courts. It is\nimportant to note that proximity and prestige have predicted horizontal citations for nearly a\ncentury, from Mott\xe2\x80\x99s (1936) first study to the most contemporary update (Hinkle and Nelson 2016),\ndespite considerable changes in the legal, political, and societal landscape (e.g., Fronk 2010). We\nnow discuss proximity and prestige in turn.\nProximity follows the homophily principle; \xe2\x80\x9cbirds of a feather flock together,\xe2\x80\x9d and courts cite\ncourts that resemble them either ideologically or spatially. For instance, it is likely that the New\nYork Court of Appeals and the California Supreme Court will cite each other, as they are both\nrelatively liberal states. Indeed, Merryman (1954) notes that California cites New York the most\nof any of its peers. By the same logic, it is unlikely that Utah and Oregon will cite each other, as\nthere is a large ideological gap between the two. States that are spatially proximate or in the same\nlegal reporter region are also more likely to cite each other. In terms of geographic proximity, we\nwould expect Ohio and Pennsylvania to cite each other often, as they are physically close to each\nother and likely deal with many of the same legal issues (Caldeira 1985). The decisions of state\nsupreme courts are also published in legal reporting volumes that group states by region rather\nthan reporting the decisions of each individual state in their own volume. As a result, courts that\nare in the same legal reporter region historically cite each other if only because they almost surely\nhad each other\xe2\x80\x99s opinions included in their law libraries. Of course, most legal research now takes\nplace digitally rather than in physical books. While we might expect this effect to dampen the\nimpact of reporter regions, they are still powerful predictors of horizontal citations in the twentyfirst century (Hinkle and Nelson 2016).\nPrestige also predicts horizontal citations. A prestigious court is one that other legal actors\n(courts) see as authoritative (e.g., Corley, Collins, and Calvin 2011). Importantly, as Mott puts it, \xe2\x80\x9cIt\nis axiomatic that some supreme courts are more influential than others\xe2\x80\x9d (1936, 295). While all state\nsupreme courts are technically equal, some states are seen as more prestigious by their peers\nand are thus cited more frequently. The reasons for prestige differences may be attributed to the\nnature of the cases that the courts hear, the expertise of the court, or the resources available.\nHearing diverse or novel cases can increase a court\xe2\x80\x99s prestige. Caldeira (1983; 1985) finds that\ncourts with more running feet of case law, higher state GDPs, and greater populations are more\nlikely to be cited. Simply put, having more decisions results in a greater number of cases that can\n166 | Walking on Broken Glass\n\n\x0cbe cited horizontally. Hearing novel cases allows a court to increase its expertise in complicated\nareas of law that will then become attractive to other courts when they deal with these issues\nfor the first time. For instance, the New Jersey Supreme Court is a leader in education finance\ndecisions, partially because New Jersey was one of the first state supreme courts to deal with\neducation finance and did so repeatedly. By necessity, New Jersey became a leader. When other\ncourts were faced with education finance decisions of their own, it made sense to draw on the\nprestige New Jersey had developed in the area rather than creating a new decision from the\nground up (e.g., Gleason and Howard 2015). Of course, if a court has a large body of case law\nand hears novel cases, it must still produce quality opinions that other courts want to cite. If\na court has few resources, it will be hard-pressed to produce nuanced and persuasive opinions\nthat other courts find attractive. A court with few resources likely has a heavy docket and\nlittle administrative support staff. As such, the opinions it produces generally lack nuanced legal\nreasoning. Those opinions will not be attractive to peers in other states. Conversely, one of the\nreasons the California Supreme Court is a network leader is because it has a discretionary docket\nand ample law clerk support to produce nuanced opinions (Hinkle and Nelson 2016; Squire 2008).\nThe literature on state supreme court citations demonstrates that citations are often the product\nof proximity and prestige. Importantly, however, this literature focuses on the primacy of courts\nover judges. This is problematic, as a core assumption of judicial behavior is that the identity of\nthe judge shapes outcomes. For instance, the reason Justice Thomas often votes conservatively is\nbecause he is conservative (e.g., Segal and Spaeth 2002). By the same token, Justice Ginsburg is\nsuch an ardent supporter of women\xe2\x80\x99s rights because of her lived experience as a female attorney\nwho entered the legal profession in the 1950s (Haire and Moyer 2015; Norgren 2018). Likewise, the\nreason opinions by Chief Justice Marshall hold such sway two centuries after he wrote them is\nbecause of his stature as a jurist rather than the fact that the opinions were issued by the Supreme\nCourt. Indeed, opinions written by Justice Washington, which we rarely see discussed, were also\nissued by the Supreme Court in the same era Chief Justice Marshall served.\nWhile these are, to us, excellent reasons to add a judge-centric component to models of citation\nactivity, the court-centric approach in state supreme court citation literature is likely driven\nby the sheer difficulty involved in obtaining information about state supreme court opinions in\ngeneral and the justices who author them in particular. However, recent work by Hinkle and\nNelson (2016) and Hall and Windett (2013) has ushered in a virtual treasure trove of data on state\nsupreme court decisions and the justices who author them. In particular, Hinkle and Nelson (2016)\nprovide information on every citation made by state supreme court justices in 2010, and Hall and\nWindett (2013) obtain case-level information, including the identity of the justice who authors\nthe opinion, from 1994 to 2010. These data make it possible for scholars to move from exploring\ncourt-level explanations for horizontal citations to individual-level factors. However, in order to\nproperly utilize these data, we need to formulate expectations about how justice-level factors\nshape citations.\nWalking on Broken Glass | 167\n\n\x0cToward a More Identity-Based Account of Horizontal\nCitations\nThere is no existing work on how justice-level factors drive horizontal citations on state supreme\ncourts, but there is literature on horizontal citations between federal appellate court judges. Just\nas state supreme courts often cite each other horizontally, so too do federal courts of appeals\njudges. Precedent handed down by the Seventh Circuit Court of Appeals is binding on federal\ndistrict courts within the Seventh Circuit (for instance, the Southern District of Illinois) and on\nthe Seventh Circuit itself. It is often the case, though, that federal appellate court judges will\ncite their colleagues on other circuits. Importantly, this is a horizontal citation that is akin to\na state supreme court citing a decision issued by a peer court in another state. Much like on\nstate supreme courts, horizontal citations between federal appellate court judges are driven by\nproximity and prestige (Choi and Gulati, 2008; Landes, Lessig, and Solimine 1998; Anderson, 2011;\nKlein and Morrisroe, 1999; Cross, 2010). This literature typically looks at proximity and prestige\nin a manner that is fairly consistent with the literature on state supreme courts. Judges who are\nideologically similar are more likely to cite each other. Indeed, the most ideologically extreme\njudges are less likely to be cited\xe2\x80\x94likely because they are ideologically proximate to so few of\ntheir peers (Landes, Lessig, and Solimine 1998). Likewise, judges who have built up an extensive\nbody of case law are more likely to be cited than freshman judges for the simple fact that the\nformer have a larger body of work with which to build a prestigious reputation (Cross 2010).\nWhile this provides a dynamic foothold for extending state supreme court citation studies, we\ndraw on recent work on diversity in the political realm generally and the legal sphere specifically,\nsuggesting that immutable characteristics might drive the way judges evaluate their peers.\nThere are a number of different angles from which scholars could explore citations between\nstate supreme court justices, including their lived experiences (Glynn and Sen 2015) and social\ncontacts (Heinz et al. 1993). However, we choose to focus on immutable characteristics. Whereas\nlife experiences can change with time and chance encounters or a faux pas can alter social\ninteractions, immutable characteristics are more permanent. In particular, we focus on the role of\nopinion author gender in horizontal citations. Ample literature suggests that women experience\nthe legal profession differently than their male peers (Haire and Moyer 2015; Gleason 2019;\nGleason, Jones, and McBean 2017; Norgren 2018), and these experiences can determine which\nwomen ascend to the top of the legal profession (Baker 2003). Examining gender is all the more\nattractive considering the growing gender diversity of state judiciaries.\nAt a time when some of the earliest studies of citation patterns were appearing (see Mott 1936),\nfemale judges were exceptionally rare on state supreme courts. This would remain the case well\ninto the late 20th century when others revisited the topic (see Caldeira 1983, 1985) but by the\n168 | Walking on Broken Glass\n\n\x0ctime the work of Hinkle and Nelson (2016) appeared, the state judiciary had become remarkably\ndiverse. Female judges are now common on both state and federal benches (Szmer, Christensen,\nand Kaheny 2015; Slotnick, Schiavoni, and Goldman 2017). Indeed, they hold the majority in nearly\n20 percent of all state supreme courts (Ritter 2019). Importantly, at all levels of the judiciary, female\njudges and bring a distinct voice that shapes case law and judicial behavior in subtle ways. For\ninstance, Boyd (2016) finds that female judges are more likely to grant motions than their male\ncounterparts. More germane to appellate court work, Songer, Haire, and Davis (1994) note that\nfemale judges decide more liberally in some issue areas. Importantly, Scheurer (2014) notes that\nfemale federal appellate court judges are more likely to take on a \xe2\x80\x9cdifferent voice\xe2\x80\x9d after they reach\na critical mass on a given bench (see also Collins, Manning, and Carp 2010). That is to say, when\nthere are more women on a court, it is more likely that women\xe2\x80\x99s distinct perspective will appear in\ndecisions (e.g., Kenney 2002). This perspective can translate into the language used in the opinion\n(Gleason, Jones, and McBean 2017) and thus shape the range of options available to future courts\nadjudicating similar cases (Hansford and Spriggs 2006).\nScholars are increasingly cognizant of the role gender plays in political and legal outcomes.\nHowever, this literature presents somewhat mixed findings. While women are held to a double\nstandard in political and social roles (Szmer, Sarver, and Kaheny 2010; Rhode 1994; Jones 2016;\nGleason, Jones, and McBean 2017), women who ascend to the bench are generally seen as more\nqualified (Gill and Eugenis 2019; Pearson and McGhee 2013). This is perhaps because, in order to\nreach this level of the judiciary, female attorneys must truly excel in order to succeed in a maledominated profession (Norgren 2018). Accounts of early female judges, both memoir based and\nscholarly, stress that women had a considerable uphill climb. By definition, those who did succeed\nwere among the best justices (e.g., Abramson et al. 1977). Thus it is reasonable to expect that an\nopinion written by a female justice should be seen as more prestigious than one authored by a\nmale justice.\nOur proposition finds support in previous work on voters\xe2\x80\x99 preferences for both male and female\ncandidates. Voters do not hold female candidates to a different standard than male candidates\nor exhibit outright sexism. However, the traits that voters find desirable in candidates are less\ncommon among women (Teele et al 2018). Not surprisingly, then, women are less likely to run for\noffice (Fox and Lawless 2005), but the average woman who does run is more qualified than the\naverage male candidate (see Anzia and Berry 2011). Moreover, female candidates tend to be more\nsophisticated than their male counterparts (Niven et al 2019). However, women who run typically\ndo so against more qualified candidates (Milyo and Schosberg 2000). Thus women are less likely to\nrun for office, and those who do are more qualified and face stiffer competition. As such, women\nwho make it into office are likely extremely qualified (e.g., Pearson and McGhee 2013). Voters\nappear to be aware of this, tending to prefer female state supreme court candidates under certain\ncircumstances (Gill and Eugenis 2019).\n\nWalking on Broken Glass | 169\n\n\x0cGiven that women face a more difficult path to office relative to their male counterparts (Teele,\nKalaa, and Rosenbluth 2018), and those women who do become state supreme court justices are\nlikely more qualified than their male counterparts (Pearson and McGhee 2013), it is possible that\nfemale justices\xe2\x80\x99 peers see the opinions they author as more persuasive than those written by men.\nThis would then increase the probability that their peers will view opinions written by female state\nsupreme court justices as attractive horizontal citations. Accordingly, we expect that opinions\nauthored by female state supreme court justices will be cited more frequently than those written\nby men.\n\nData and Methods\nIn order to explore the extent to which opinion author gender shapes the citation of state supreme\ncourt precedent, we combine two unique databases to measure the total number of times each\njustice who served between 1995 and 2010 is cited in 2010. Of course, with just one year of data,\nwe are limited by how much we can generalize our findings. However, we feel that since there is\nno work on this topic, our work here represents an important first snapshot. We do so by drawing\non previous data sets created by Hinkle and Nelson (2016) and Hall and Windett (2013). Hinkle and\nNelson (2016) provide data on all citations made in the 2010 term, and Hall and Windett (2013)\nprovide case-level information on all state supreme court decisions from 1994 to 2010. Importantly\nfor our purposes, this includes the name of the opinion author. We augment these two databases\nwith our own original research into the gender of all 727 justices who served on state supreme\ncourts between 1995 and 2010.\nHinkle and Nelson (2016) use text-scraping software to extract every citation state supreme courts\nmade in the 2010 term. Of course, the vast majority of these citations are vertical citations to a\ncourt\xe2\x80\x99s own case law or that of its inferior courts. We drop these vertical citations and instead\nfocus on just the horizontal citations for the reasons stated above. There are 1,897 horizontal\ncitations made across all state supreme court opinions in 2010. But then the question becomes,\nWhich justices are getting horizontally cited? Hinkle and Nelson\xe2\x80\x99s (2016) data give us the citation\ninformation for each cited decision, but they do not tell us who wrote the opinion. Fortunately,\nwe can use Hall and Windett\xe2\x80\x99s (2013) data to supply the identity of the justice who wrote the cited\nopinion.\nHall and Windett\xe2\x80\x99s (2013) data provide information on all 115,067 signed state supreme court\ndecisions from 1995 to 2010. Using the case citation, which is common to both Hinkle and Nelson\n(2016) and Hall and Windett (2013), we are able to create a count for the total number of times each\ndecision is cited. Of course, since we are primarily interested in the opinion author rather than the\n170 | Walking on Broken Glass\n\n\x0copinion itself, we then use the justice name variable in Hall and Windett (2013) to count the total\nnumber of times each of the 727 justices who served from 1995 to 2010 are cited in 2010.\nThe total number of citations received by each justice constitutes our dependent variable. This\ncount variable ranges from 0 to 15. Looking at the distribution of citations displayed in figure 1, it\nis clear that most judges receive no citations, whereas a relatively small number of justices receive\na disproportionate share of horizontal citations. But since we are interested in knowing whether\nwomen are more likely to be cited, it is necessary to construct our primary dependent variable,\nwhich notes whether a given justice is male or female.\n\nFigure 1: Total Horizontal Citations Received by Justices\n\nOur main independent variable is a binary measure of whether a given justice is male or female.\nTo create this measure, we first use the Hall and Windett\xe2\x80\x99s (2013) data to create a list of all state\nsupreme court justices who served from 1995 to 2010. We then examine state supreme court\nwebsites and news accounts to determine whether a justice is male or female. We do so by looking\nfor pronouns (e.g., \xe2\x80\x9cJustice X served on the law review during her time in law school\xe2\x80\x9d or \xe2\x80\x9cJustice Y\nand his family enjoy hiking\xe2\x80\x9d). The variable is coded 1 if a justice is female and 0 if a justice is male.\nAfter creating this measure, we rerun our histogram from figure 1, but this time we differentiate\nbetween male and female justices. This is displayed in figure 2. The left panel depicts citations to\nmale justices; the right panel depicts citations to female justices. It appears that female justices\nare perhaps more likely to be cited than male justices. However, a visual inspection of a histogram\ncan be deceiving. It could be that female justices in our data are cited more frequently by random\nWalking on Broken Glass | 171\n\n\x0cchance. We address this possibility by running a t-test that measures whether a relationship (in\nthis case, our observed propensity for female justices to be cited more than male justices) is due\nto random chance or a statistically significant difference. Our t-test confirms that female justices\nare more likely to be cited than male justices (p = 0.00).\n\nFigure 2: Total Horizontal Citations Received by Justices by Gender\n\nWhile the histograms and t-test seem to support our contention that female justices are more\nlikely to be cited horizontally than male justices, we must still account for existing explanations of\nproximity and prestige. A histogram merely models the distribution of data, and a t-test assesses\nfor statistical significance between just two variables. Could it be that female justices are just more\nlikely to serve on ideologically moderate courts? Or that male justices tend to be on courts with\nlow resources? If either of those propositions is true, then the conclusions we drew are spurious,\nand the relationship we attributed to justice gender is actually a function of ideological proximity\nand professionalism prestige. Fortunately, we can follow the lead of Hinkle and Nelson (2016) and\nutilize a negative binomial regression model to explore whether female justices are more likely to\nbe cited while accounting for existing explanations of proximity and prestige.\nA negative binomial model resembles an ordinary least squares regression model, but it allows for\nthe dependent variable to be a count (e.g., zero citations, one citation, eight citations) rather than a\ncontinuous measure as required by ordinary least squares models (e.g., \xe2\x88\x92$20.03 in the bank, $115.67\nin the bank). Of course, in order to run the negative binomial model, we need to specify control\nvariables that account for the proximity and prestige explanations suggested by previous research.\n172 | Walking on Broken Glass\n\n\x0cBy including control variables, we ensure that we account for how proximity and prestige shape\nhorizontal citations to state supreme court justices at the same time we test for whether female\njustices are cited more frequently than male justices.\nWe note proximity via a measure of state political ideology. That is to say, we expect state\nsupreme courts to cite justices on courts that resemble their own ideologically. So we would\nexpect Massachusetts to cite Illinois (both liberal states). We would not expect Illinois to cite\nTexas much (a conservative state). We create this measure via the Berry et al. (1998) state ideology\nscores. These scores create a measure from 0 (most conservative) to 100 (most liberal) at the\nstate level. This allows us to move beyond simply calling a state liberal or conservative. This is\na good thing, because while both Texas and Wyoming are conservative, Wyoming is a fair deal\nmore conservative than Texas. Importantly, Berry et al. (1998) create scores for both the general\npublic and government institutions. To illustrate this, in 2000 Illinois\xe2\x80\x99 voters have a score of 54,\nwhich indicates that they lean slightly liberal. Illinois government institutions have a score of 40\nin 2000, which demonstrates that they are considerably more conservative than the voters. Since\nstate supreme court justices likely want to retain their jobs, we use the ideology score for the actor\nmost responsible for the justices\xe2\x80\x99 continued tenure. In states where justices are elected in some\nform, this is public ideology. For states where justices are appointed, this is elite ideology. We then\ncalculate the state\xe2\x80\x99s ideological distance from a purely moderate position (which would be 50 in\nthe Berry et al. scores) by taking the absolute value of the state\xe2\x80\x99s Berry et al. (1998) score for the\nstate supreme court\xe2\x80\x99s primary principal in the year the opinion was written. We expect that when\nthe state issuing a decision is in a more ideologically extreme state, it will be less likely to receive\ncitations, as it will be ideologically proximate to fewer peers (e.g., Cross 2010).\nWe include several measures of prestige. Chief among these is court professionalism. Simply put,\na court that has ample resources will be able to produce nuanced opinions that are attractive to\nother state supreme courts. Much like Hinkle and Nelson (2016), we measure this with the index\ndeveloped by Squire (2008). Prestige also comes from having specialized case law. Since hearing a\ndiversity of cases enhances specialization, we note this in much the same way as Caldeira (1985)\nvia the log of the state GDP and the population for the issuing court. The logic here is that states\nwith higher GDPs will experience growth in their business sector, which leads to new and diverse\nlitigation. Take, for instance, New York. Since New York is the home of Wall Street, it often hears\nnew and innovative cases. So if New York hears a novel intellectual property case, other states\nwill likely turn to that decision when they deal with similar topics later on. Much the same logic\napplies when a state\xe2\x80\x99s population grows, as new questions about zoning, government services, and\nsocial interactions are likely to arise. Since numerous scholars note selection mechanism impacts\neventual citation, as different selection mechanisms may attract different kinds of candidates (Fox\nand Lawless 2005) and thus perhaps change the way opinions are written (Caldeira 1985; Hinkle\nand Nelson 2016), we include a dichotomous measure noting whether the issuing court seats its\nmembers via popular election. This measure is set to 1 for elected courts and 0 otherwise. Since\nWalking on Broken Glass | 173\n\n\x0copinions have more opportunities to be cited over time, we include a count of a total number of\nyears in which a judge\xe2\x80\x99s decisions existed in the universe of cases. We do so by subtracting the first\nyear a judge authored an opinion between 1995 and 2010 from 2010.\n\nResults\nOur results, presented in table 1, indicate that decisions written by women are more likely to\nbe cited than decisions written by men. This provides support for our primary expectations.\nAdditionally, some of our prestige control variables are significant. This demonstrates that while\nprevious work utilizes proximity and prestige to explain horizontal citations, scholars must\naccount for the gender of the justices being cited as well if they wish to arrive at a more complete\nunderstanding. We now turn to a detailed discussion of our results. Since negative binomial results\nare unintuitive, we discuss our results in terms of incident rate ratios.\nVariable\n\nCoefficient Standard Error\n\nFemale Justice\n\n0.221*\n\n0.081\n\nCourt Ideology\n\n-0/003\n\n0/006\n\nLogged GDP\n\n1.320*\n\n0.249\n\nLogged Population\n\n-1.426*\n\n0.284\n\nCourt Professionalism 0.100\n\n0.492\n\nElected Justice\n\n-0.207***\n\n0.111\n\nYears in Data\n\n0.102*\n\n0.009\n\nContant\n\n-4.052*\n\n1.094\n\nAlpha Coefficient\n\n0.597\n\nObservations\n\n727\n\nChi 2\n\n213.34\n\nTable 1. Standard errors clustered on state supreme court\n*:p=0.01, **: p=0.05, ***: p=0.10\n\nDecisions written by women are more likely to be cited than those written by male justices. When\na justice is female, the incident rate that she will be cited horizontally increases by 1.25, all else\nbeing equal. We also find that a one standard deviation increase in the state GDP increases the\nincident rate ratio for citation by 1.730, from 3.743 to 4.073. We note that as the population of the\n174 | Walking on Broken Glass\n\n\x0cstate increases, the probability that its decisions will be cited actually decreases. A one standard\ndeviation increase in logged population decreases the incident rate of horizontal citation by 0.280,\nfrom 0.268 to 0.240. We also note that justices serving on elected courts are more likely to be cited.\nServing on an elected court increases the incident rate of citation by 0.813 relative to appointed\ncourts. Finally, each additional year a justice has opinions in our data set increases the incident\nrate of citation by 1.108.\n\nDiscussion\nThe stereotypical image of a judge is male. When women first entered the legal profession, they\nfaced fierce pushback (Norgren 2018), and those who did ascend to the bench, by definition, had\nto be among the best (e.g., Abramson et al 1977; Haire and Moyer 2015). Now, slightly less than\na century after Florence Allen became the first female state supreme court justice when she\njoined the Ohio Supreme Court in 1922, women increasingly occupy seats on state courts of last\nresort, and their opinions are cited horizontally more frequently than those authored by their male\ncounterparts. This indicates that women are seen as more prestigious in the citation network. The\nliterature from trailblazer women judges and women on the campaign trail suggests that this is\nbecause of the adversity female justices have to overcome to reach the bench (e.g., Norgren 2018;\nHaire and Moyer 2015). While we have answered the question we set out with, our results give rise\nto a number of new questions that should be explored more fully by future studies. We now turn\nto a brief overview of our findings and how future scholars might expand them.\nWe focus on horizontal citations because of their purely discretionary nature. Much of the\nliterature on horizontal citations over the past eighty years finds that horizontal citations are\nthe product of proximity and prestige. Importantly, however, we only find that prestige-based\nexplanations are significant; ideology is not. Of course, we could argue that opinion author gender\nis a form of prestige. Still, the reasons why ideology is not significant are not entirely clear. It is\npossible, for instance, that the role of ideology is based not on the relative moderateness of the\ncited justice\xe2\x80\x99s court but on the distance between the citing court and the cited court. By changing\nthe specification of our model, future studies may be able to present a more nuanced explanation\nof how gender and ideology impact horizontal citations.\nA key contribution of our approach is that unlike existing state supreme court horizontal citation\nstudies, we include an individual-level factor in our model. Previous studies have relied almost\nexclusively on court-level factors, such as state ideology and professionalism. We include one\njudge-level factor, gender, and find that female justices are more likely to be cited than their\nmale counterparts. What, though, of other individual-level factors, such as ideology, race, and\nWalking on Broken Glass | 175\n\n\x0caccumulated body of case law? We opt to focus on just gender in this initial foray in order to\nkeep our argument conceptually simple, but it stands to reason that if gender shapes citations, it\nis likely that other individual-level factors influence citations just as they do on federal appellate\ncourts. Indeed, we think a comprehensive account of horizontal citations needs to consider the\nfull range of court- and individual-level factors at the same time. We encourage future scholars to\ntake up this project.\nPerhaps one of the greatest limitations of our study here is that we do not know who is doing\nthe citing because our dependent variable is a count of the total number of times each judge\nis cited. While we think this choice was justified in order to establish that female justices are\ncited more frequently than their male counterparts, there are reasons to believe that who cites is\nperhaps as important as who gets cited. To this end, Hinkle and Nelson (2016) note that federal\nappellate court judges tend to cite others from their in-groups. Could it be the case that most of\nthe citations going to female justices are from other female justices? Particularly as evidence from\nthe US Supreme Court indicates that women rely on a different calculus when evaluating legal\ninformation (Gleason, Jones, and McBean 2017), it is worth exploring what both ends of the citation\ndyad look like. This could be addressed with a dyadic model, as has often been the case in citation\nstudies (e.g., Hinkle and Nelson 2016; Howard, Roch, and Schorpp 2017). This approach would also\nallow us to analyze characteristics of the case at hand, such as its salience or issue area.\nPerhaps one of the greatest limits to our approach is the short time frame we employ. We\nexplore horizontal citations made in 2010 to decisions authored between 1995 and 2009. While this\napproach is necessitated by the availability of data, it is important to recall the scope of available\ndata is ever expanding, as are the statistical techniques available to researchers to explore the\ndata. It was, after all, not that long ago that most state supreme court studies relied on the Brace,\nLanger, and Hall (2000) data, which in turn relied on a subsample of state supreme court cases\ndecided between 1995 and 1999. As more data become available, we encourage future scholars\nto revisit this study with information from other years. In particular, it is worthwhile to look at\na contemporary term such as 2019, where women hold majorities on nearly 20 percent of state\nsupreme courts, alongside an earlier term from the 1980s or 1990s, where female justices were\nstill relatively rare. Since a number of scholars note that female judges take on a different voice\nonce they reach a critical mass in a given institutional context (Collins, Manning, and Carp 2010;\nScheurer 2014), we suspect that the gendered context of state high courts will shape citation\npractices (e.g., Szmer, Christensen, and Kaheny 2015). Presumably as women occupy an increasing\nnumber of seats on a given court, the overall culture of the legal profession will become more\ninclusive (e.g., Kanter 1977; Kaheny, Szmer, and Sarver 2011; Kenney 2002). As such, the prestige of\nopinions written by women may dissipate. Of course, we leave it to future scholars to more fully\nexplore this topic.\nFinally, future scholars may gain leverage by looking at the role of gender in the opinion-writing\n176 | Walking on Broken Glass\n\n\x0cprocess writ large. Murphy (1964) and Maltzman, Spriggs, and Wahlbeck (2000) note that opinion\nwriting is the product of compromise and strategic behavior by the justices on the US Supreme\nCourt. While we know the level of collegiality varies from one state supreme court to the next\n(Kritzer 2015), it is possible that a greater number of women on a given bench alters the extent\nto which bargaining and negotiating happens; this could extend to the horizontal citations chosen\n(e.g., Szmer, Christensen, and Kaheny 2015; Kaheny, Szmer, and Sarver 2011).\nIn this chapter, we explore horizontal citations on state supreme courts. While little has changed\nin scholarly accounts of horizontal citations over the past eighty years, we discuss how a relatively\nnew feature of state benches, gender diversity, shapes horizontal citations. We find that female\njustices are more likely than their male peers to be cited horizontally. 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(\xe2\x86\xb5 Return)\nKenney, Sally J. 2002. \xe2\x80\x9cBreaking the Silence: Gender Mainstreaming and the Composition of the\nEuropean Court of Justice.\xe2\x80\x9d Feminist Legal Studies. 10: 257\xe2\x80\x93270. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nKlein, David, and Darby Morrisroe. 1999. \xe2\x80\x9cThe Prestige and Influence of Individual Judges on the\nU.S. Courts of Appeals.\xe2\x80\x9d Journal of Legal Studies. 28: 371\xe2\x80\x93391. (\xe2\x86\xb5 Return)\nKritzer, Herbert M. 2007. \xe2\x80\x9cLaw is the Mere Continuation of Politics by Different Means: American\nJudicial Selection in the Twenty-First Century.\xe2\x80\x9d DePaul Law Review. 56: 423\xe2\x80\x9368. (\xe2\x86\xb5 Return)\n\n180 | Walking on Broken Glass\n\n\x0c\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2015. Justices on the Ballot: Continuity and Change In State Supreme Court Elections. New\nYork: Cambridge University Press. (\xe2\x86\xb5 Return)\nLandes, William M., Lawrence L. Lessig, and Michael E. Solimine. 1998. \xe2\x80\x9cJudicial Influence: A\nCitation Analysis of Federal Courts of Appeals Judges.\xe2\x80\x9d The Journal of Legal Studies. 27 (2):\n271\xe2\x80\x93332. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nMaltzman, Forrest, James F. Spriggs II, and Paul J. Wahlbeck. 2000. Crafting Law on the Supreme\nCourt: The Collegial Game. New York: Cambridge University Press. (\xe2\x86\xb5 Return)\nMerryman, John Henry. 1954. \xe2\x80\x9cThe Authority of Authority: What the California Supreme Court\nCited in 1950.\xe2\x80\x9d Stanford Law Review. 6 (4): 613\xe2\x80\x93673. (\xe2\x86\xb5 Return)\nMilyo, Jeffrey, and Samantha Schosberg. 2000. \xe2\x80\x9cGender Bias and Selection Bias in House Elections.\xe2\x80\x9d\nPublic Choice. 105 (1\xe2\x80\x932): 41\xe2\x80\x9359. (\xe2\x86\xb5 Return)\nMott, Rodney. 1936. \xe2\x80\x9cJudicial Influence.\xe2\x80\x9d American Political Science Review. 30: 295\xe2\x80\x93315. (\xe2\x86\xb5 Return\n1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3)\nMurphy, Walter F. 1964. Elements of Judicial Strategy. Chicago, IL: University of Chicago Press. (\xe2\x86\xb5\nReturn)\nNelson, Michael J., Rachel Paine Caufield, and Andrew D. Martin. 2013. \xe2\x80\x9cOH, MI: A Note on\nEmpirical Examinations of Judicial Elections.\xe2\x80\x9d State Politics and Policy Quarterly. 13 (4): 495\xe2\x80\x93511.\n(\xe2\x86\xb5 Return)\nNiven, David, Alexis Straka, and Anwar Mhajne. 2019. \xe2\x80\x9cWho Reveals, Who Conceals?: Candidate\nGender and Policy Transparency.\xe2\x80\x9d Political Research Quarterly. XX: 1\xe2\x80\x9313. (\xe2\x86\xb5 Return)\nNorgren, Jill. 2018. Stories from Trailblazing Women Lawyers. New York: New York University Press.\n(\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3) (\xe2\x86\xb5 Return 4) (\xe2\x86\xb5 Return 5) (\xe2\x86\xb5 Return 6)\nPearson, Kathryn, and Erin McGhee. 2013. \xe2\x80\x9cWhat it Takes to Win: Questioning \xe2\x80\x98Gender Neutral\xe2\x80\x99\nOutcomes in U.S. House Elections.\xe2\x80\x9d Politics and Gender. 9 (4): 439\xe2\x80\x93462. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\n(\xe2\x86\xb5 Return 3)\nRhode, David L. 1994. \xe2\x80\x9cGender and Professional Roles.\xe2\x80\x9d Fordham Law Review. 63: 39\xe2\x80\x9372. (\xe2\x86\xb5 Return)\nRitter, Ken. 2019. \xe2\x80\x9cNevada Joins States With Female Majority on High Court.\xe2\x80\x9d The Associated\nPress. January 11. https://www.apnews.com/28940d6ef89f4b01af62a800a85d94bd (\xe2\x86\xb5 Return 1)\n(\xe2\x86\xb5 Return 2)\nScheurer, Katherine Felix. 2014. \xe2\x80\x9cGender and Voting Decisions in the U.S. Court of Appeals: Testing\nWalking on Broken Glass | 181\n\n\x0cCritical Mass Theory.\xe2\x80\x9d Journal of Women, Politics, & Policy. 35: 31\xe2\x80\x9354. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5\nReturn 3)\nSegal, Jeffrey A., and Harold J. Spaeth, H. 2002. The Supreme Court and the Attitudinal Model\nRevisited. New York: Cambridge University Press. (\xe2\x86\xb5 Return)\nShapiro, Martin. 1965. \xe2\x80\x9cStability and Change in Judicial Decision-Making: Incrementalism or Stare\nDecisis?\xe2\x80\x9d Law in Transition Quarterly. 2: 134\xe2\x80\x93157. (\xe2\x86\xb5 Return)\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 1970. \xe2\x80\x9cDecentralized Decision-Making in the Law of Torts.\xe2\x80\x9d In Political Decision-Making, ed.\nSydney S. Ulmer, 44\xe2\x80\x9375. New York: Van Nostrand. (\xe2\x86\xb5 Return)\nSlotnick, Eliot, Sara Schiavoni, and Sheldon Goldman. 2017. \xe2\x80\x9cObama\xe2\x80\x99s Judicial Legacy.\xe2\x80\x9d Journal of\nLaw and Courts. 5 (2): 363\xe2\x80\x93422. (\xe2\x86\xb5 Return)\nSonger, Donald R., Sue Davis, and Susan Haire. 1994. \xe2\x80\x9cA Reappraisal of Diversification in the Federal\nCourts: Gender Effects in the Courts of Appeals.\xe2\x80\x9d Journal of Politics. 56 (2): 425\xe2\x80\x93439. (\xe2\x86\xb5 Return 1)\n(\xe2\x86\xb5 Return 2)\nSotomayor, Sonia. 2002. \xe2\x80\x9cA Latina Judge\xe2\x80\x99s Voice.\xe2\x80\x9d Berkeley La Raza Law Journal. 13 (1): 87\xe2\x80\x9394. (\xe2\x86\xb5\nReturn)\nSquire, Peverill. 2008. \xe2\x80\x9cMeasuring the Professionalism of State Courts of Last Resort.\xe2\x80\x9d State Politics\nand Policy Quarterly. 8 (3): 223\xe2\x80\x93238. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3)\nSzmer, John J., Tammy A. Sarver, Erin B. Kaheny. 2010. \xe2\x80\x9cHave We Come a Long Way, Baby?: The\nInfluence of Attorney Gender on Supreme Court Decision Making.\xe2\x80\x9d Politics & Gender. 6: 1\xe2\x80\x9336. (\xe2\x86\xb5\nReturn)\nSzmer, John, Robert K. Christensen, and Erin B. Kaheny. 2015. \xe2\x80\x9cGender, Race, and Dissensus on\nState Supreme Courts.\xe2\x80\x9d Social Science Quarterly. 96: 553\xe2\x80\x93575. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return\n3) (\xe2\x86\xb5 Return 4)\nTeele, Dawn. L., Joshua Kalaa, and Frances McCall Rosenbluth. 2018. \xe2\x80\x9cThe Ties that Bind: Social\nRoles and Women\xe2\x80\x99s Underrepresentation in Politics.\xe2\x80\x9d American Political Science Review. 112 (3):\n525\xe2\x80\x93541. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nWalker, Jack W. Jr. 1969. \xe2\x80\x9cThe Diffusion of Innovations among the American States.\xe2\x80\x9d American\nPolitical Science Review. 63: 880\xe2\x80\x9399. (\xe2\x86\xb5 Return)\n\n182 | Walking on Broken Glass\n\n\x0cClass Activity\n1. What is precedent? How is precedent transferred throughout the court system? How do\njustices choose which precedent to use and which precedent to ignore when crafting\nopinions?\n2. What is the relative merit of horizontal citations? Are there any problems with a state\nsupreme court turning to a court or justice that is in no way accountable to the voters in the\nciting state? Why should any state turn to another state for citations when the only court\nthat has legal authority over them is the US Supreme Court?\n3. The authors find that women are cited more frequently because of the difficult path to the\nbench they experience. Can you think of any other institutions (political or otherwise) or\nsocial interactions where this might be the case? Might this effect manifest with different\nidentities beyond gender?\n4. The chapter discusses gender-based differences (in both experience and treatment) of\nwomen in legal and political professions. Provide an example of a gender-based difference of\na female attorney. Provide an example of a gender-based difference of a female politician.\n5. What is judicial prestige? What factors contribute to judicial prestige? How might this effect\nhorizontal citations?\n6. What is judicial proximity? Why might a court or a judge want to cite someone \xe2\x80\x9clike them\xe2\x80\x9d in\nhorizontal citations? Where else might we see this in judicial behavior or political science\nwrit large?\n7. Analysis of the data revealed that very few of the cases that are generated by the courts\nevery year eventually become horizontal citations. Does gender play a role when a justice\ndecides to use a horizontal citation? Do you suppose the justices are intentionally choosing\nto cite opinions crafted by women or might this operate at a more subconscious level?\n8. The authors used male and female pronouns on state websites in order to code for the\njustice\xe2\x80\x99s gender. Is this the best way to establish the gender of a state supreme court judge?\nAre there any potential problems with coding a justice\xe2\x80\x99s gender in this manner? Why do you\nsuppose the authors opted for this approach?\n9. What are Berry et al. scores? How did the authors use these scores in their analysis? Is this\nthe most effective way to measure state political ideology? Can you think of other ways to\nmeasure state political ideology?\n10. While the results of statistical models are the same no matter who puts them together, the\nstructure of the model may be different based on who is building it. Two of the three authors\nare men. Both Gleason and Comparato are men. Bailey is a woman. Is it possible that the\nauthors\xe2\x80\x99 lived experiences of gender shaped the research question and the structure of the\nchapter? How might this chapter have been different if all three authors were men? If two of\nthe three authors were women? If all of the authors were women? Gleason, a male,\nWalking on Broken Glass | 183\n\n\x0cspecializes in gender-based court research. Does this change your evaluation of the study?\n\n184 | Walking on Broken Glass\n\n\x0c8. The Transmission of Legal Precedent in\nthe U.S. Court of Appeals\nKRISTEN M. RENBERG\n\nThe published opinions by a US Court of Appeals are replete with citations to legal\nprecedents\xe2\x80\x94precedents from the US Supreme Court, from within their own circuit, and from\nthe court of appeals in their sister circuits. The first two types of citation are easy to explain, as\nprecedents from the US Supreme Court and from their circuit are binding. However, precedents\nfrom other appellate courts in other jurisdictions are not. How does a judge choose whether to cite\nsuch nonbinding precedents when authoring an opinion? Will a judge cite precedents published by\ncourts that are institutionally similar to hers? Alternatively, does a judge prefer to cite precedents\nthat were authored by other judges with whom they share similar characteristics? This chapter\nseeks to answer these questions by identifying the judge-level characteristics (race, gender, and\npartisanship) along with court-level characteristics (internal procedural rules) in these cases to\nunderstand under what conditions we observe the transmission of precedent from one court of\nappeals to another.\nIt is critical to understand how and why precedents travel from one circuit to another. In most\ncases, the court of appeals will make the final decision in a case and on an issue of law. The finality\nof these decisions has increased as the US Supreme Court has decreased its caseload over the past\nfew decades. On average, the current Supreme Court now resolves around seventy-five cases a\nyear, whereas the courts of appeals resolve more than fifty thousand cases a year. The Supreme\nCourt hears less than 2 percent of the cases appealed to it, and less than 15 percent of the cases\nresolved by the courts of appeals are appealed to the Supreme Court (Cross 2007, 2). Given this, a\nlarge proportion of the cases resolved by courts of appeals as well as the precedents they produce\nare left untouched by the Supreme Court and are deserving of rigorous study in judicial politics.\nFollowing in the path of several scholars (Walker 1969; Canon and Baum 1981; Landes and Posner\n1976; Caldeira 1985; Fowler and Jeon 2008; Landes, Lessig, and Solimine 1998), I rely on network\nanalysis to understand interdependent relationships in the judiciary. There are many reasons why\ntreating citations as a network makes sense. The main reason is that citations within opinions\ndo not occur independently. For example, a judge can observe which precedents were previously\ncited, and this may influence her decision to cite a given precedent. Likewise, we may expect that\na judge is more likely to cite a precedent if she has previously cited the precedent. Further, some\njudges have cultivated prominent reputations; therefore, the opinions they author are cited more\nfrequently as compared to other judges. For these reasons, network analysis is an appropriate\nmethodological approach for understanding and modeling who cites precedents from whom.\nTransmission of Legal Precedent in the US Court of Appeals | 185\n\n\x0cCourts of Appeals\nSitting directly below the US Supreme Court, the court of appeals are usually considered the\nsecond-highest tier of federal courts in the United States. There are thirteen federal judicial\ncircuits within the United States. Eleven of the circuits are characterized as regional, since their\njurisdictions often cover multiple states. The District of Columbia (DC) Circuit has jurisdiction over\nthe United States\xe2\x80\x99 capital, which makes it somewhat different from its sister circuits in terms of\ncaseload and jurisdiction. While the DC Circuit is unusual when compared to the other eleven\nregional circuits, the Court of Appeals for the Federal Circuit (FED) is really a different animal\xe2\x80\x94this\ncourt has nationwide jurisdiction to hear appeals in specialized cases.\nEach federal circuit has a single appellate court and multiple district courts. These courts of\nappeals have mandatory and appellate jurisdiction. As such, the courts of appeals do not have to\nreview every decision made by the district courts in its circuit; however, it does mean a court of\nappeals must review if an appeal is submitted. Losing parties at the courts of appeals have two\noptions: they can seek a hearing from the US Supreme Court or they can request an en banc\nreview. An en banc review is when all or a majority of active judges from the circuit hear the\nappeal. Requests for en banc review are rare and infrequently granted. Figure 1 displays a map of\nthe geographic boundaries of the federal judicial circuits.\n\nFigure 1: Boundaries of Federal Judicial Circuits\n\n186 | Transmission of Legal Precedent in the US Court of Appeals\n\n\x0cLegal Precedent\nCourts of appeals resolve cases through panels composed of three randomly assigned judges. If\nthe judges decide to issue an opinion, one of the three judges is tasked with authoring the majority\ncoalition\xe2\x80\x99s opinion. If that opinion is published, it becomes a binding precedent and guides future\nlegal decisions by appellate and district judges within the circuit (Aldisert 1989, 632; Hinkle 2017;\nCaminker 1994). Precedents are born out of legal opinions and establish either a principle or rule.\nOpinions published by one court of appeals are not binding over decisions in other courts of\nappeals, and not all opinions are published. An unpublished opinion resolves only the specific legal\nissue in the case before the court. The decision to publish an opinion is highly relevant for the\njudge who authored the opinion and judges from her circuit, as the choice to publish is also a de\nfacto decision to establish a precedent and constrain future decisions.\nAgain, precedents are meant to guide future decision-making. This legal norm is known as stare\ndecisis, which translates from Latin into \xe2\x80\x9cto stand by things decided.\xe2\x80\x9d Judges are expected to rely\non previous binding decisions when crafting their opinion in a similar case. Epstein and Knight\ndescribe this process: \xe2\x80\x9cIf judges want to establish a legal rule of behavior that will govern the\nfuture activity of the members of the society in which the court exists, they will be constrained\nto choose from a set of rules that the members of the society will recognize and accept\xe2\x80\x9d (1998,\n164). As such, reliance on precedents provides many institutional benefits. The norm of stare\ndecisis leads to reasonable expectations and stability in decisions made by different judges (Lee\n1999; Caminker 1994; Rasmusen 1994). Stare decisis does not limit the law from evolving as society\nchanges; however, it does lead to law evolving incrementally on a case-by-case basis (Kozel 2012).\nFrom an outsider\xe2\x80\x99s perspective, having a precedent guide a judge\xe2\x80\x99s decision makes the verdict\nappear more legitimate. Finally, and most importantly for the operation of courts, stare decisis\npromotes efficiency by expediting the decision-making and opinion-writing processes for judges\n(Lee 1999; Caminker 1994).\nWithin the judiciary, we observe two forms of stare decisis: vertical and horizontal. Vertical stare\ndecisis is based on the hierarchy of the judiciary, where precedents by higher courts supersede\nprecedents by lower courts. Horizontal stare decisis occurs when a precedent transmits across\ncourts that are on the same tier of the judicial hierarchy. For example, a federal district court in\nCalifornia is in the Ninth Circuit. Due to the norm of vertical stare decisis, the district court needs\nto adhere to precedents established by the Court of Appeals for the Ninth Circuit. Likewise, the\nCourt of Appeals for the Ninth Circuit and the federal district court in California must adhere\nto precedents established by the US Supreme Court. Under the norm of horizontal stare decisis,\nthe Court of Appeals for the Sixth Circuit, for example, needs to adhere to precedents previously\nestablished on the Court of Appeals for the Sixth Circuit.\n\nTransmission of Legal Precedent in the US Court of Appeals | 187\n\n\x0cJudicial politics research has traditionally focused on vertical stare decisis, arguing that lower\ncourts will almost always be compliant with Supreme Court precedents (Klein 2002; Songer,\nSegal, and Cameron 1994; Songer and Sheehan 1990; Caminker 1994; and Westerland et al. 2010).\nBenesh and Reddick (2002), for example, conducted an event-history analysis and observed that\nfollowing the overruling of a precedent by the Supreme Court, lower courts quickly adopted the\nnew precedent and stopped relying on the overruled precedent.\nThis chapter focuses on horizontal stare decisis, specifically the transmission of precedent from\none court of appeals to another. When a court of appeals relies on a precedent that was\ndetermined in a separate appellate court, the transmitted precedent is influencing a case outside\nof its jurisdiction through persuasion rather than normative binding influence. Some scholars have\nargued that these citations are evidence of strategic considerations by the judge who authored\nthe opinion (e.g., Calderia 1985). This vein of the literature postulates that when a judge cites a\nprecedent that was published outside of her jurisdiction, she is attempting to provide evidence\nthat her argument is widely supported and intellectually grounded (Hume 2009). Others have\nsuggested that these transmitted citations are a product of the different reservoirs of precedents\namong the courts of appeals. In other words, some courts may have more experience and\ntherefore a more extensive stock of precedents relating to a specific legal issue than other courts\n(Solberg, Emrey, and Haire 2006).\nEmpirically, some scholars have viewed the act of transmitting precedents across courts as a signal\nof prestige, suggesting that the more often a precedent is cited in opinions by other courts, the\nmore influential the judge who authored the precedent is. Landes, Lessig, and Solimine (1998)\ncreated a total influence measure based on the number of citations a judge\xe2\x80\x99s opinion received from\nher colleagues and concluded that the gender, race, and political affiliation of a judge can predict\nher level of influence.\nNevertheless, there is no clear prediction as to when published opinions from one court of appeals\nwill be cited in an opinion from another court of appeals. This chapter argues that institutional\ndifferences and individual-level characteristics of judges across courts influence the transmission\nof precedents and can be used to formulate such predictions.\n\nInstitutions, Judge Characteristics, and Predicted Citation\nBehavior\nThe court of appeals in each judicial circuit operates under its own set of local procedural\nrules. I consider the differences in publishing rules to be one of the most critical procedures for\n188 | Transmission of Legal Precedent in the US Court of Appeals\n\n\x0cpredicting the transmission of precedent. These rules determine whether an opinion is published\nand has precedential value. To use this variable, I must classify each circuit by its publishing\nrules. The least ambiguous publication rule was used to classify the courts\xe2\x80\x94this rule outlines the\nnumber of judges from a panel needed to agree in order for the majority opinion to be published.\nIn some courts, the rule states that the three-member panel must unanimously agree to the\npublication of the opinion. In other courts, the rule states that only the judge who authors the\nopinion faces the decision to publish her opinion. The type of publication rule for each court of\nappeals is shown in table 1.\nCircuit Rule\n\nCircuit Rule\n\nCircuit Rule\n\n1st\n\nUnanimous\n\n5th\n\n9th\n\n2nd\n\nAuthor-Only 6th\n\nAuthor-Only 10th\n\nUnanimous\n\n3rd\n\nUnanimous\n\n7th\n\nUnanimous\n\n11th\n\nUnanimous\n\n4th\n\nAuthor-Only 8th\n\nUnanimous\n\nDC\n\nUnanimous\n\nUnanimous\n\nAuthor-Only\n\nTable 1: Court of Appeals Publication Rules by Circuit\n\nFour of the twelve courts of appeals operate under the author-only publication rule, which leaves\ntwo-thirds of the courts operating under the unanimous-agreement publication rule. There is no\napparent geographic or political reason for this variation.\nThere are many opinion-writing strategies a judge may take on while operating under the\nunanimous-agreement publication rule. One strategy the authoring judge can adopt is devising\na well-researched and well-written initial draft that potentially can shield her opinion from\ncriticism and veto threats from the two other panel members (Hume 2009). Another strategy\navailable for the authoring judge is to seek out amendments from the other panel members and\nincorporate this additional language into her opinion. I expect that the unanimous-agreement rule\nplaces institutional constraints on the judge who is authoring the majority coalition\xe2\x80\x99s opinion. In\nturn, the judge will author a high-quality opinion. High-quality opinions are not cheap to produce,\nas they are generally longer and well researched and contain many citations. A judge and her clerks\nmust devote more time and more resources when crafting a high-quality opinion.\nIn turn, the different publication rules are expected to influence the broader network of\nprecedents transmitting across the courts. When judges are researching precedents to cite in\ntheir own opinion, they will most likely prefer to cite precedents that are likewise grounded\nin research and add to the credibility of their opinions. For this reason, I expect precedents\npublished by courts that have the unanimous-agreement publication rule will be transmitted\nthrough citations more frequently than precedents published by courts with the author-only\npublication rule.\nTransmission of Legal Precedent in the US Court of Appeals | 189\n\n\x0cI also predict that judges who share similar backgrounds, such as their legal education, are more\nlikely to cite each other\xe2\x80\x99s opinions. Those who have received similar legal training are expected\nto be more receptive and therefore more likely to cite the others\xe2\x80\x99 opinions. Other immutable\ncharacteristics, such as the race and gender of judges, may also influence their citation behaviors.\nLikewise, judges with similar partisanship are expected to be more likely to cite each other\xe2\x80\x99s\nopinions because the judges will share similar views about legal issues. Prior research in judicial\npolitics has demonstrated that partisan ideology is one of the most influential predictors for\nexplaining judicial behavior (Segal and Spaeth 2008); however, ideology does not explain all judicial\nbehavior (Epstein and Knight 2013).\n\nData and Network Methodology\nAn original data set of over 300,000 majority opinions published by the US Courts of Appeals\nbetween 1970 and 2010 was developed in order to explore citation patterns and the transmission\nof precedent. The author, date of publication, and all citations were parsed from the text of\neach opinion. Citations were limited to opinions listed in either the Second or Third Series\nFederal Reporter. Further, citations to precedents that originated in the same court of appeals as\nthe opinion were not included in the citation analysis. Altogether, there were 575,224 citations\navailable to study.\nNext, a series of variables related to features of the judge who authored the citing opinion and the\njudge who authored the cited opinion were developed using biographical data from the Federal\nJudicial Center (FJC). The law school attended by each judge was identified as either an elite law\nschool or not; this allows us to observe whether a judge\xe2\x80\x99s legal education impacts his opinionwriting behavior. Two binary variables, citing judge elite law and cited judge elite law, were\ncreated. Next, the race and gender of the citing judge and cited judge were identified. If the\ntwo judges shared the same gender, the variable same gender was valued at 1 and was otherwise\nvalued at 0. If the two judges shared the same race, the variable same race was valued at 1 and\nwas otherwise 0. Within the citation data set, the citing and cited judges were the same gender\n82.3 percent of the time and were the same race 85.1 percent of the time. These judge-level\ncharacteristic variables likely have high values, since diversity in the form of race and gender was\nlargely missing from the federal judiciary up until the 1980s.\n\n190 | Transmission of Legal Precedent in the US Court of Appeals\n\n\x0cNetwork Methodology\nA network is a group or system of interconnected people or things. When people think of\nnetworks, they often think of social media\xe2\x80\x94who follows whom online. By analyzing these\nconnections, we can gain more nuanced insights into relationships among connected people. In\nthis chapter, I study how judges are connected to other judges through citations to precedents. If a\njudge cites an opinion authored by another judge, they are connected in the legal network. Figure\n2 depicts the legal network in this study. Each judge in the legal network is a node in the network,\nand each judge is represented with a circle. The citation from one judge to another is referred\nto as the edge in the network and is represented with a line that connects two circles. Figure 2A\npresents a network of judges citing each other\xe2\x80\x99s opinions. Figure 2B zooms in to a specific part of\nfigure 2A to highlight and identify some of the most connected judges in the network.\n\nFigure 2A: Judges in Citation Network\n\nTransmission of Legal Precedent in the US Court of Appeals | 191\n\n\x0cFigure 2B: Prominent Judges Citation Network\n\nThere are many reasons to believe that the reputation of a judge will impact how other judges\ncite her opinions. As one judge\xe2\x80\x99s opinions are cited more frequently, other judges can observe this\ncitation trend and, in turn, begin also citing opinions authored by the judge. For this reason, we\nneed to account for how central each judge\xe2\x80\x99s opinions are within the citation network. Observing\nwhose opinions are being cited by whom will give us a great deal of insight into the transmission\nof precedents. Harris (1979) and other scholars have argued that the degree to which other judges\ncite a precedent is the single best indicator of how influential a precedent is and how influential\nthe judge who authored the precedent is. Based on this logic, three network centrality measures\nwere calculated to account for the reputation of each judge in the legal network.\nThe first network measure is strength; this is a measure of the number of citations a judge has\nreceived and accounts for the total number of other judges who are issuing those citations. The\nnext network measure is centrality, which essentially measures how often a judge is cited by\nother highly cited judges in the network. The final network measure is known as authority; here\njudges are given a higher authority score if they are frequently cited by judges that are also very\nwell cited. Figure 3 depicts examples of each of the network measures calculated in the citation\nnetwork. Note that judges are represented as nodes (circles) in the network, and citations between\ntwo judges are represented as edges (lines). The number of citations between two judges is also\nindicated in the visualizations. Each example in figure 3 depicts how a network measure for one\njudge, highlighted in blue, is conceptualized.\n\n192 | Transmission of Legal Precedent in the US Court of Appeals\n\n\x0cFigure 3A: Strength\n\nFigure 3B: Centrality\n\nFigure 3C: Authority\n\nTransmission of Legal Precedent in the US Court of Appeals | 193\n\n\x0cWhile the three network measures all relate to a cited judges\xe2\x80\x99 reputation in the legal citation\nnetwork, each is estimated differently. It is important to note that all three network measures\nare positively correlated. This positive correlation implies that when we observe one network\ncentrality measure increasing, we can expect the other two measures will also increase in value.\nIn turn, the network methodology has provided us with important variables for modeling citation\nbehavior. Without these variables, the statistical test in the following section would likely suffer\nfrom omitted variable bias.\n\nResults\nIn order to understand how judge-level attributes impact the transmission of precedents across\nthe courts of appeals, the data are structured so that the unit of analysis is the number of times\none judge (Ji) cites another judge (Jj) for each year (Ti). This procedure resulted in 7,868,474\nobservations and provided us with a count dependent variable that ranged from 0 to 38. The most\ncommon transmission pattern observed was judges from the Court of Appeals for the Ninth Circuit\nciting precedents published by the Second Circuit. Female judges from the Court of Appeals in the\nNinth Circuit are the most frequently cited female judges within the citation network.\nGiven that the dependent variable is a count of the number of times one judge cites another judge\xe2\x80\x99s\nopinions in a year, a negative binomial regression is estimated. When a dependent variable is a\ncount variable, a Poisson regression model is also an option; however, a Poisson regression model\nis not an appropriate choice here because the variance of the dependent variable, the count of\ncitations, is greater than its mean. When the variance of a count variable is greater than the mean,\nit is a sign that the variable is overdispersed. If a Poisson model were to be employed with an\noverdispersed dependent variable, we would observe consistent but inefficient estimates along\nwith downwardly biased standard errors (Long 2011). In other words, we could not trust the results\nof the analysis. For this reason, a negative binomial regression model was implemented, since it\naccounts for overdispersion by allowing \xe2\x80\x9cthe conditional variance of y to exceed its conditional\nmean\xe2\x80\x9d (Long 2011, 230). Or to be blunt, this model fits the data better and produces more reliable\nresults.\nGiven that the data capture forty years (1970\xe2\x80\x932010), fixed effects for each year and circuit were\nincluded in the analysis to control for unobserved heterogeneity in the courts (Beck and Katz\n1995). This method is employed to make the results reliable and ensure the model best fits the\ndata. Table 2 presents the estimated results. The percent change column represents how the\nnumber of citations is expected to change when there is a one-unit increase in a covariate or\nvariable in the model while holding all other covariates constant. For example, if a dyad of judges\n194 | Transmission of Legal Precedent in the US Court of Appeals\n\n\x0cchanges from being different races to being the same race, we expect the number of citations to\nincrease by 38.4 percent.\nNumber of\nCitations\nUnanimous Agreement Publication\nRule\n\nCiting Court of Appeals\n\nCited Court of Appeals\n\nJudge Characteristics\n\n(0.004)\n0.092***\n(0.004)\n-0.731\n\nSame Gender\n\n(2.908)\n0.325***\n\nSame Race\n\n(0.064)\n\nSame Political Party\nCiting Judge Elite Law\nSchool\nCited Judge Elite Law\nSchool\nNetwork Measures\n\n0.076**\n\nCited Judge Strength\n\nCited Judge Centrality\n\nCited Judge Authority\n\n0.012\n(0.002)\n0.032**\n( 0.002)\n0.059***\n(0.000)\n-2.277\n(6.1554)\n-1.364\n(6.556)\n0.424**\n(0.050)\n\nPercent\nChange\n7.9%\n\n9.6%\n\n-107.7%\n\n38.4%\n\n1.2%\n\n3.2%\n\n6.1%\n\n-874.7%\n\n291.1%\n\n52.8%\n\n1.001***\n\nIntercept\n\n(0.000)\n\nN\n\n7,868,474\n\nYear Fixed Effects\n\nYES\n\nTable 2: Results of Negative Binomial Estimation\nNote: *p<0.10; **p<0.05; ***p<0.01d\n\nThe results concerning the publication rule in each circuit confirm prior expectations. When a\nTransmission of Legal Precedent in the US Court of Appeals | 195\n\n\x0cjudge is on a court that has the unanimous-agreement publication rule, their opinions are cited at\na higher rate than judges from courts that have the author-only publication rule. Likewise, judges\nfrom courts with the unanimous-agreement publication rule are more likely to cite others\xe2\x80\x94almost\n8 percent more opinions from other circuits than judges from courts with the author-only\npublication rule. Substantively, judges from courts of appeals with the unanimous-agreement\npublication rule (found in the First, Third, Fifth, Seventh, Eighth, Tenth, Eleventh, and DC Circuits)\nare more likely to cite precedents that were established in other judicial circuits and are more\nlikely to have their own precedents cited by judges in other judicial circuits. This result implies\nthat the rules that dictate how an opinion is published have long-term implications for how other\njudges in the future might cite the opinion.\nWith regards to judge characteristics, the results indicate that when the citing judge and the cited\njudge share the same partisanship, the number of citations between these judges is expected to\nincrease by 1.2 percent while holding the other covariates in the model constant. This finding\nsuggests that judges who share the same partisan ideology are more likely to cite each other than\njudges with different partisan ideologies. Likewise, if the citing and cited judges are the same race,\nwe are more likely to observe them citing each other than if the two judges were of different races.\nThe results related to the gender of the citing and cited judges are not statistically significant, and\nthus this analysis cannot confirm whether there is a meaningful statistical relationship between\nthe gender of a judge and how other judges cite her opinions. The findings in table 2 also suggest\nthat if a judge attended an elite law school, she is cited more frequently by judges from other\ncircuits as compared to judges who did not attend an elite law school. Likewise, judges who\nattended an elite law school are observed to cite about 3 percent more opinions from other\ncircuits as compared to judges who did not attend an elite law school.\nOnly one of the three network measures was estimated to have a statistically significant\nrelationship with the number of citations observed between two judges. The results indicate that\nas the cited judge\xe2\x80\x99s authority within the network increases, we should expect to observe more\ncitations to the opinion they author. Given that the authority score of judges in the network is\nbased on how well connected one judge is to other frequently cited judges, it suggests that as\na judge becomes more central and more popular with judges who are already popular, we are\nmore likely to observe judges from other circuits citing her opinions. Interestingly, the authority\nnetwork measure incorporates more information from the citation network as compared to the\ntwo other network measures (see figure 3).\nAltogether, the results in table 2 have important implications for the transmission of precedents\nacross courts of appeals. First, table 2 found a statistically significant relationship between the\npublication rule in the citing and cited judges\xe2\x80\x99 courts and the number of citations connecting\nthese judges. Other internal rules within each court of appeals may need to be studied in the\nfuture in order to fully unpack the relationship between these rules and the decision to import a\n196 | Transmission of Legal Precedent in the US Court of Appeals\n\n\x0cprecedent from another circuit. The results in table 2 also uncovered important nuances of judgelevel characteristics, such as race and legal education. Up until the mid-1980s, most of the federal\nbench was composed of white male judges; it will be interesting to observe how the relationship\nbetween judge characteristics and citation behavior is impacted as the federal bench becomes\nmore diverse. Finally, the results lead us to think about the role of reputations among judges and\nhow a network of judicial relationships may impact law.\n\nConclusion\nThere is very little prior research concerning how variations in the publishing rules within a court\nof appeals\xe2\x80\x99 local rules may impact the transmission of its precedents. Procedural rules have been\nextensively studied on the Supreme Court and shown to affect the decisions produced and how\nopinions are written. From the importance of opinion assignment (Maltzman and Walhbeck 1996;\n2005; Lax and Cameron 2007; Segal and Spaeth 2002) to the voting rules in conference (Calderia,\nWright, and Zorn 1999; Epstein, Landes, and Posner 2013), it is surprising that this area of research\nhas yet to spill over to other, very salient, appellate courts.\nThis chapter found that institutional features do impact the citation network, the transmission\nof precedents across courts, and by implication, prestige. Further, individual-level characteristics\nof judges, such as race and legal education, were also shown to impact the transmission of\nprecedents. Future research may also want to explore how judge characteristics impact the\ntransmission of precedents within a court of appeals over time. This type of research question\nwould have important implications for understanding the longevity of precedents.\nThe courts of appeals resolve many important legal questions each year. As the docket of the\nSupreme Court continues to shrink, the finality of decisions and the legal resolutions produced by\neach US Court of Appeals is expected to grow. As this trend continues, it becomes more important\nto understand the behaviors and development of precedent in the courts of appeals.\n\nReferences\nAldisert, Ruggero J., 1989. \xe2\x80\x9cPrecedent: What It Is and What It Isn\xe2\x80\x99t: When Do We Kiss It and When\nDo We Kill It.\xe2\x80\x9d Pepperdine Law Review 17:605. (\xe2\x86\xb5 Return)\nTransmission of Legal Precedent in the US Court of Appeals | 197\n\n\x0cBeck, Nathaniel, and Jonathan N. Katz. 1995. \xe2\x80\x9cWhat to do (and not to do) with time-series crosssection data.\xe2\x80\x9d American Political Science Review 89 (3): 634\xe2\x80\x9347. (\xe2\x86\xb5 Return)\nBenesh, Sara C., and Malia Reddick. 2002. \xe2\x80\x9cOverruled: An event history analysis of lower court\nreaction to Supreme Court alteration of precedent.\xe2\x80\x9d Journal of Politics 64(2): 534\xe2\x80\x9350. (\xe2\x86\xb5 Return)\nCaldeira, Gregory A., 1985. \xe2\x80\x9cThe Transmission of Legal Precedent: A Study of State Supreme\nCourts.\xe2\x80\x9d American Political Science Review 79: 178\xe2\x80\x9394. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nCaldeira, Gregory A., John R. Wright, and Christopher JW Zorn. 1999. \xe2\x80\x9cSophisticated Voting And\nGate-Keeping In The Supreme Court.\xe2\x80\x9d Journal of Law, Economics, and Organization 15 (3):\n549\xe2\x80\x9372. (\xe2\x86\xb5 Return)\nCaminker, Evan H., 1994. \xe2\x80\x9cWhy Must Inferior Courts Obey Superior Court Precedents?\xe2\x80\x9d Stan. L.\nRev. 46 (817): 823\xe2\x80\x9325. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3) (\xe2\x86\xb5 Return 4)\nCanon, Bradley C., and Lawrence Baum. 1981. \xe2\x80\x9cPatterns Of Adoption Of Tort Law Innovations: An\nApplication Of Diffusion Theory To Judicial Doctrines.\xe2\x80\x9d American Political Science Review 75 (4):\n975\xe2\x80\x9387. (\xe2\x86\xb5 Return)\nCross, Frank. 2007. Decision Making in the U.S. Courts of Appeals. Stanford University Press. (\xe2\x86\xb5\nReturn)\nEpstein, Lee and Jack Knight. 1998. The Choices Judges Make. Washington, DC: Congressional\nQuarterly. (\xe2\x86\xb5 Return)\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x942013. \xe2\x80\x9cReconsidering Judicial Preferences.\xe2\x80\x9d Annual Review of Political Science 16. (\xe2\x86\xb5 Return)\nEpstein, Lee, William M. Landes, and Richard A. Posner. 2013. The Behavior of Federal Judges: a\nTheoretical and Empirical Study of Rational Choice. Harvard University Press. (\xe2\x86\xb5 Return)\nFowler, James H., and Sangick Jeon. 2008. \xe2\x80\x9cThe authority of Supreme Court precedent.\xe2\x80\x9d Social\nNetworks 30 (1): 16\xe2\x80\x9330. (\xe2\x86\xb5 Return)\nHinkle, Rachel K. 2017. \xe2\x80\x9cPanel Effects and Opinion Crafting in the US Courts of Appeals.\xe2\x80\x9d Journal of\nLaw and Courts 5 (2): 313\xe2\x80\x9336. (\xe2\x86\xb5 Return)\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x942015. \xe2\x80\x9cLegal constraint in the US Courts of Appeals.\xe2\x80\x9d The Journal of Politics 77 (3): 721\xe2\x80\x9335.\nHume, R. J. 2009. \xe2\x80\x9cCourting multiple audiences: The strategic selection of legal groundings by\njudges on the US courts of appeals.\xe2\x80\x9d Justice System Journal 30 (1): 14\xe2\x80\x9333. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nKlein, D. E. 2002. Making law in the United States Courts of Appeals. Cambridge, UK: Cambridge\nUniversity Press. (\xe2\x86\xb5 Return)\n198 | Transmission of Legal Precedent in the US Court of Appeals\n\n\x0cKozel, R. J. 2012. \xe2\x80\x9cPrecedent and Reliance.\xe2\x80\x9d Emory LJ. 62: 1459. (\xe2\x86\xb5 Return)\nLandes, William M., Lawrence Lessig, and Michael E. Solimine. 1998. \xe2\x80\x9cJudicial Influence: A Citation\nAnalysis Of Federal Courts Of Appeals Judges.\xe2\x80\x9d The Journal of Legal Studies 27 (2): 271\xe2\x80\x9332. (\xe2\x86\xb5\nReturn)\nLandes, William M., and Richared A. Posner. 1976. \xe2\x80\x9cLegal Precedent: A Theoretical and Empirical\nAnalysis.\xe2\x80\x9d Journal of Law & Economics 19: 249. (\xe2\x86\xb5 Return)\nLax, Jeffrey R., and Charles M. Cameron. 2007. \xe2\x80\x9cBargaining and opinion assignment on the US\nSupreme Court.\xe2\x80\x9d The Journal of Law, Economics, & Organization 23 (2): 276\xe2\x80\x9302. (\xe2\x86\xb5 Return)\nLee, T. R., 1999. \xe2\x80\x9cStare Decisis in Historical Perspective: From the Founding Era to the Rehnquist\nCourt.\xe2\x80\x9d Vand. L. Rev. 52 (647). (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nLong, J. Scott. 2011. Regression Models For Categorical And Limited Dependent Variables. Thousand\nOaks, Calif.: Sage. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nMaltzman, Forrest, and Paul J. Wahlbeck. 1996. \xe2\x80\x9cStrategic Policy Considerations And Voting\nFluidity On The Burger Court.\xe2\x80\x9d American Political Science Review 90 (3): 581\xe2\x80\x9392. (\xe2\x86\xb5 Return)\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x942005. \xe2\x80\x9cOpinion assignment on the Rehnquist court.\xe2\x80\x9d Judicature 89: 121. (\xe2\x86\xb5 Return)\nRasmusen, E. 1994. \xe2\x80\x9cJudicial Legitimacy As A Repeated Game.\xe2\x80\x9d Journal of Law, Economics, and\nOrganization 10 (1): 63\xe2\x80\x9383. (\xe2\x86\xb5 Return)\nSegal, Jeffrey Allan, and Harold J Spaeth. 2008. The Supreme Court And The Attitudinal Model\nRevisited. Cambridge, UK: Cambridge University Press. (\xe2\x86\xb5 Return)\nSolberg, Rorie Spill, Jolly A. Emrey, and Susan B. Haire. 2006. \xe2\x80\x9cInter-Court Dynamics And The\nDevelopment Of Legal Policy: Citation Patterns In The Decisions Of The U.S. Courts Of Appeals.\xe2\x80\x9d\nPolicy Studies Journal 34 (2): 277\xe2\x80\x9393. (\xe2\x86\xb5 Return)\nSonger, Donald R., Jeffrey A. Segal, and Charles M. Cameron. 1994. \xe2\x80\x9cThe Hierarchy Of Justice:\nTesting A Principal-Agent Model Of Supreme Court-Circuit Court Interactions.\xe2\x80\x9d American\nJournal of Political Science 38 (3): 673. (\xe2\x86\xb5 Return)\nSonger, Donald R., and Reginald S. Sheehan. 1990. \xe2\x80\x9cSupreme Court Impact On Compliance And\nOutcomes: Miranda And New York Times In The United States Courts Of Appeals.\xe2\x80\x9d The Western\nPolitical Quarterly 43 (2): 297. (\xe2\x86\xb5 Return)\nWalker, Jack L. 1969. \xe2\x80\x9cThe Diffusion Of Innovations Among The American States.\xe2\x80\x9d American Political\nScience Review 63 (3): 880\xe2\x80\x9399. (\xe2\x86\xb5 Return)\nTransmission of Legal Precedent in the US Court of Appeals | 199\n\n\x0cWesterland, Chad et al. 2010. \xe2\x80\x9cStrategic Defiance And Compliance In The U.S. Courts Of Appeals.\xe2\x80\x9d\nAmerican Journal of Political Science 54 (4): 891\xe2\x80\x93905. (\xe2\x86\xb5 Return)\n\nClass Activity\nR is a powerful open source program for statistics and graphics. RStudio is an integrated\ndevelopment environment (IDE) for R. It is essentially a nice front-end for R. Rstudio provides a\nconsole, a scripting window, a graphics window, and an R workspace.\nFor information on installing R and Rstudio in Windows or in Mac OS X please see one of the\nfollowing links:\n\xe2\x80\xa2 https://www.andrewheiss.com/blog/2012/04/17/install-r-rstudio-r-commanderwindows-osx/\n\xe2\x80\xa2 https://owi.usgs.gov/R/training-curriculum/installr/\n\xe2\x80\xa2 https://cran.r-project.org/doc/manuals/r-release/R-admin.html\nOnce R and Rstudio is installed on your computer, please open the .R file for in class exercise in\nRstudio. Please note that the R file and accompanying data files should be saved in the same folder\non your computer.\nYou will need to set the working directory of your Rstudio session to the folder where the script\nand data is saved. From Rstudio, use the menu to change your working directory under Session >\nSet Working Directory > Choose Directory.\nOnce the working directory is set, you can click and highlight sections of the code in the scripting\nwindow and click the \xe2\x80\x98run\xe2\x80\x99 button in the top left section of the window.\n\n200 | Transmission of Legal Precedent in the US Court of Appeals\n\n\x0c9. Trump\xe2\x80\x99s Judges and Diversity\nRegression to the Mean or Remaking the Judiciary?\nPETAR JEKNIC, RORIE SPILL SOLBERG, ERIC WALTENBURG, AND CHRISTOPHER STOUT\n\nAt the beginning of the Trump presidency, there was a great deal of commentary and\n1\n\nhandwringing focused on how unusual this president was and would be. Norm-breaking became\nthe watchword, as President Trump ignored the typical or standard patterns of presidential\nbehavior. Examples of shattered norms include President Trump\xe2\x80\x99s refusal to release his income\ntaxes, his denigration of military service, and his willingness to side with foreign adversaries over\n2\n\nthe conclusions of his own intelligence community. Now norms have developed over time in the\nrealm of judicial nominations as well. Presidents since Clinton had been increasing the diversity\nof their judicial slates regardless of party. While some presidents certainly focused strongly on\nideology, diversity was also a major component of their judicial selection strategy (Solberg and\nDiascro 2018, 2009; Solberg 2005; Spill and Bratton 2001). Based on President Trump\xe2\x80\x99s comments\nand his Supreme Court short list, it was hypothesized that the ideology of his nominees would be\na touchstone for his selection process\xe2\x80\x94a hypothesis confirmed when Leonard Leo, cochairman of\nthe Federalist Society, took a central role in the judicial selection process for the administration.\nEarly in the Trump presidency, though, it also seemed clear that he would not take the same twopronged approach as did his more recent predecessors and also consider diversity. Indeed, he\nlooked to be the first president in over two decades that would reduce the diversity of the federal\n3\n\nbench. With the conclusion of the Trump presidency, it is time to take stock and investigate the\neffects of Trump\xe2\x80\x99s cohort of judges on the demographics of the federal judiciary.\nAs several other articles in this volume attest, assessing the diversity of a political institution,\nparticularly the judiciary, is an important exercise. The judiciary, be it federal or state, in the US\nsystem is an odd duck. The system is set up for the judiciary to act as umpire over conflicts\nbetween the government and its citizens, between citizens, and between institutions of\ngovernment. (For example, the Supreme Court determined that Congress did not have the power\nto subpoena President Trump\xe2\x80\x99s tax returns as part of its oversight and legislative power in Trump\n\n1. Washington Post (2017); Goldsmith (2017); Wright (2017).\n2. Grant (2019); Washington Post (2020); Garrett (2018). Indeed, one blog (Just Security) set up a regular\ntracking series (\xe2\x80\x9cNorms Watch\xe2\x80\x9d) to monitor President Trump\xe2\x80\x99s relationship to democratic norms.\nSee Wright (2017).\n3. The Conversation (2018); Solberg and Waltenburg (2017).\nTrump\xe2\x80\x99s Judges and Diversity | 201\n\n\x0cet al. v. Mazars USA, LLP No. 19-715.) Yet the judiciary is generally selected via appointment (federal\nsystem and some states) or via merit selection (appointment combined with retention elections).\nEven in systems where judges are elected directly, the elections tend to be low-information\nand low-participation events (Klein and Baum 2001). Therefore, judges and justices have little\n4\n\nto no direct connection to the electorate and generally serve no constituency. Compounding\nthis indirect link to the public is the lack of enforcement power inherent in the structure of US\ncourts. Judges and justices can make decisions; however, in a separation of powers government,\nit is up to the executive branch to enforce or implement those decisions. Thus as Hamilton so\naptly put it over two hundred years ago, the judiciary has \xe2\x80\x9cno influence over either the sword or\nthe purse.\xe2\x80\xa6It may truly be said to have neither Force nor Will, but merely judgment.\xe2\x80\x9d To remain\nconsequential and relevant in such a system, then, the judiciary must remain legitimate in the eyes\nof the public so that those with the power of purse and sword feel compelled to enact and abide\nby the judiciary\xe2\x80\x99s ruling. In other words, the judiciary must maintain trust and approval to fulfill its\ncritical role in our system.\nWhile there may be many reasons the public supports and approves of the federal judiciary (and\napproves more heartily of the judiciary than other national institutions), research shows that\none important component of this approval is diversity. We trust institutions that mirror society.\nWomen and people of color are more likely to support and legitimate institutions where they feel\nwelcome. They also tend to believe that the institution is fairer when the panoply of decisionmakers is diverse (Ulbig 2007). It is not about whether women or people of color make decisions\ndifferently than White and male judges; it is not a question of substantive diversity. It is the\nresult of symbolic diversity. The mere presence of a diverse bench yields tangible benefits for an\ninstitution that relies solely on its legitimacy for its power. For example, Lee et al. (2021) show\nthat women viewing a woman in the role of Chief Justice of a state Supreme Court have greater\noverall support for the court as an institution. This finding follows a long literature that shows\nthat a reasonable representation of the demographic characteristics of the general population is\n5\n\nrequired for fair outcomes (Easton 1965; Pitkin 1967; Mansbridge 1999; Gay 2002).\n\nBesides the boon for legitimating the judiciary and its use of its power, a diverse judiciary is also\nimportant for substantive representation as well. First, studies of diversity writ large show that\n\n4. Though some research suggests that elected judges do respond more directly to public opinion the\ncloser they are to reelection (Bonneau and Hall 2009) or consider certain audiences when deciding\ncases (Baum 2009).\n5. The election of Kamala Harris as vice president of the United States provided plenty of anecdotal\nevidence for this claim. Witness the reports of women and girls noting that seeing a woman and a\nwoman of color in this role made them feel that they could do anything\xe2\x80\x94be anything. See Janes\n(2020); Hernandez (2020); Epstein (2020).\n202 | Trump\xe2\x80\x99s Judges and Diversity\n\n\x0cmore diverse groups make better decisions (see, for example, Herring 2009). More varied points\nand possible solutions are considered when groups are heterogeneous rather than homogeneous.\nAnd while the studies are mixed, it does seem that the lived experiences of women and judges of\ncolor can lead to different decisions. Even if the decision or the final outcome does not change, the\nshape of the policy and the consideration of the issues can be affected by the diversity of the group\n(see the excellent review in Boyd et al. 2010). The effect might be more obvious at the appellate\ncourts where judges make decisions in small groups (three, nine, or en banc); however, research\nshows that there are also similar effects at the trial courts. Although each judge decides cases on\nhis or her own, the presence of diverse colleagues still creates the same effects. The benefits of\ndiversity are compounded as judges work to diversify their staffs, especially the clerks they hire\n(Mauro 2014; Benson 2007).\nGiven the benefits of diversity for the institution as a whole and for its overall legitimacy, assessing\nthe diversity of each president\xe2\x80\x99s judicial nominees is a worthy scholarly endeavor. While the early\nnarratives on the Trump presidency suggested that his administration\xe2\x80\x99s laser focus on ideology\nwould yield a judiciary that appreciably reverses the steps taken toward a more diverse federal\njudiciary, this is, in fact, an assumption that can be put to empirical tests. Accordingly, we examine\nTrump\xe2\x80\x99s federal judges overall and then separately at the district and appellate level to see if and\nhow the demographics of the bench have changed over the course of Trump\xe2\x80\x99s tenure.\n\nTrump\xe2\x80\x99s Judicial Cohort\nThe federal judiciary is staffed by a multitude of judges\xe2\x80\x94Article III judges, bankruptcy judges,\nand magistrates. In this study, we focus on Article III judges\xe2\x80\x94judges appointed for life tenure by\nthe president to seats created under Congress\xe2\x80\x99s Article III power to create inferior courts. There\nare two types of Article III judges\xe2\x80\x94active judges and senior status judges. Active judges are fulltime Article III judges. Senior status judges are judges who have reached at least the age of sixtyfive and have served the number of years on the bench that, when added to their age, equals\neighty. These judges serve in a reduced capacity, depending on their court; their \xe2\x80\x9cactive\xe2\x80\x9d seat\nis considered open and available for replacement. Thus senior status judges serve alongside the\n6\n\nactive judiciary.\n\nWhen examining any presidential judicial legacy in terms of diversity, we argue that one must\n\n6. For example, there are 179 active judgeships on the US courts of appeals and, at the time of this\nwriting, there were 117 senior status judges still serving. Thus the total number of courts of appeals\njudges working on cases is 298.\nTrump\xe2\x80\x99s Judges and Diversity | 203\n\n\x0cconsider the entire judiciary, including the senior status judges, and you must examine the entire\nfederal structure both as a whole and by its constituent parts. In other words, just examining\nthe judicial cohort of any president does not provide a good lens for understanding the diversity\nof the full domain of the federal judiciary. Additionally, the judiciary is more than the sum of its\nparts. If there are some courts that are highly diverse and others that remain homogeneous, then\nthe judiciary as a whole may not reap the benefits of diversity. Therefore, we examine President\nTrump\xe2\x80\x99s judicial cohort overall, in comparison to the entire judiciary, and then look at how his\nnominees have affected the demographic profile of the district and appellate courts as a whole and\non individual courts. This broader view provides a complete picture of the demographic impact of\nTrump\xe2\x80\x99s judges.\n\nThe Overall Picture\nPresident Trump\xe2\x80\x99s judicial cohort is 85 percent White and 76 percent male. This is a modest\nimprovement from earlier in his presidency in terms of racial diversity. Solberg and Waltenburg\n(2018) report that after the first seventeen months of the Trump presidency his judicial cohort was\n75 percent male and 90 percent White. About three-quarters of his nominees (72 percent) filled\nseats on the district courts, and 27 percent filled appellate vacancies.\nIn terms of overall nominations, President Trump easily outpaced President Obama, confirming a\n7\n\ntotal of 200 judges by July 2020 compared to President Obama\xe2\x80\x99s 153. This comparison, however,\nmay not be fully appropriate inasmuch as President Obama was considered to be slow off the\n8\n\nmark in terms of judicial nominations. Additionally, Obama faced a recalcitrant Senate majority\nfor the second half of his first term, whereas Trump had a significant ally on judicial nominations\nin Leader McConnell (R-KY). If we compare President Trump\xe2\x80\x99s first term to the first terms of G.\nW. Bush, Clinton, or even G. H. W. Bush, we see that his overall confirmation rate is still higher\n9\n\nthan that of his predecessors (169, 182, and 193 respectively). In other words, President Trump\xe2\x80\x99s\nadministration clearly prioritized judicial confirmations and was highly successful in making them.\n\n7. Our data collection ended on June 24, 2020, after Trump\xe2\x80\x99s two hundredth judge was confirmed.\n8. See Wheeler (2012).\n9. While H. W. Bush comes the closest to matching Trump, the comparison is not a particularly good\none. First, the polarization that characterizes the current judicial nomination process, and indeed,\nCongress in general, was not fully developed at the time. Second, H. W. Bush faced a Democrat\nmajority for the entirety of his presidency. Third, the filibuster was still in place for the Bush\npresidency.\n204 | Trump\xe2\x80\x99s Judges and Diversity\n\n\x0cWe now turn to examine how Trump\xe2\x80\x99s judicial nominations have altered (if they altered) the\ndemographic profile of the lower federal courts. We begin with the courts of appeals and then turn\nto the more numerous district courts.\n\nCourts of Appeals\nPresident Trump clearly had a plan when it came to the judiciary. The plan went beyond \xe2\x80\x9cappoint\nconservative judges.\xe2\x80\x9d His administration recognized the substantial power that sits at the federal\ncourts of appeals. These appellate courts, the middle tier of the federal judiciary, make an\nincredible amount of law and hear thousands of cases per year compared to the paltry seventyfive the US Supreme Court hears in the current era. Thus the Trump administration focused a\ngreat deal on the appellate courts and appointed more appellate judges in the first two years than\nmost other presidents (see Solberg and Waltenburg 2018a, b, and c). By the end of his term, the\n10\n\ncourts of appeals were fully staffed and there were no vacancies.\n\nAlso, by the end of the Trump presidency, the complexion of the US courts of appeals was\npaler and there was more testosterone\xe2\x80\x94in other words, the courts were whiter and more male.\nThe direction of this change bucks the trend established during the Clinton administration of\nincreasing diversity. Since Clinton, each president, regardless of party, has increased the diversity\non the judiciary as a whole and on the courts of appeals. While President Trump\xe2\x80\x99s appointments\nhave not contributed to this trend, the effect of his appointments overall is not particularly\nextreme. As table 1 shows, when you include active and senior status judges, the change in terms of\ngender is barely perceptible. Once Trump\xe2\x80\x99s extremely homogenous pool of nominees is added to\n11\n\nthe larger pool, their impact was diluted. The percentage of seats held by Whites only increased\nby about 1 percent. This increase came mostly at the expense of African American and Latinx\nrepresentation. President Trump increased the share of seats held by Asian Americans, continuing\nan outreach to this community that began under President Obama (Solberg and Diascro 2020).\n\n10. President Trump and his administration, with the assistance of the Republican majority in the\nSenate, did their utmost to ensure that there were few vacancies overall across the judiciary. As of\nthis writing, there are currently seventy-eight vacancies with forty-eight pending nominations and\nthree future vacancies. Given the total number of district court judges (N = 667 with an additional\nten temporary judgeships), there are always vacancies on these courts. For comparison, when\nPresident Obama left office, there were eighty-six vacancies on the district courts, seventeen on the\ncourts of appeals, and one on the US Supreme Court.\n11. We make no comment or judgment about whether the Trump cohort is changing the partisan or\nideological profile of the courts. We leave that work to others.\nTrump\xe2\x80\x99s Judges and Diversity | 205\n\n\x0cThough the overall numbers are still small, Trump nearly tripled the number of Asian American\njudges on the Courts of Appeal.\nDemographic\n\nActive Judges (n=179) Senior Status Judges (n=117) Total Judges (n=296)\n\nMale\n\n118 (65.9)\n\n101 (86.3)\n\n219 (74.0)\n\nFemale\n\n61 (34.1)\n\n16 (13.7)\n\n77 (26.0)\n\nWhite\n\n138 (77.1)\n\n108 (92.3)\n\n246 (83.1)\n\nAfrican American 17 (9.5)\n\n4 (3.4)\n\n21 (7.1)\n\nHispanic\n\n13 (7.3)\n\n4 (3.4)\n\n17 (5.7)\n\nAsian American\n\n11 (6.2)\n\n1 (0.9)\n\n12 (4.1)\n\nPacific Islander\n\n0\n\n0\n\n0\n\nNative American\n\n0\n\n0\n\n0\n\nMixed race\n\n0\n\n0\n\n0\n\nTable 1: Active and senior status US Courts of Appeals judges\n\nLarger differences, though, are clear when you compare President Obama\xe2\x80\x99s and President Trump\xe2\x80\x99s\njudicial cohorts rather than examining the overall impact on the courts of appeals. President\nObama\xe2\x80\x99s judicial nominees were extremely diverse by most standards (Solberg and Diascro 2020).\nAlthough George W. Bush also pursued diversity as a goal for his judicial nominees and succeeded\nto a great extent (see Diascro and Solberg 2009), as table 2 reveals, his efforts paled in comparison\nto President Obama\xe2\x80\x99s. When we compare the Trump and Obama cohorts side by side, we see\nthat President Trump\xe2\x80\x99s cohort for the appellate courts was far less diverse than Obama\xe2\x80\x99s. Indeed,\nPresident Trump\xe2\x80\x99s appellate judges are actually less diverse than President G. W. Bush\xe2\x80\x99s. In fact,\nPresident Trump nominated more Whites to the federal appellate bench than his past three\npredecessors; he almost matches President Carter in the percentage of Whites appointed to the\n12\n\nintermediate appellate courts some four decades earlier.\n\n12. Carter\xe2\x80\x99s appellate cohort was 78.6 percent White, which represented significant progress on\ndiversity in the late 1970s. For comparison, Reagan and Bush\xe2\x80\x99s appellate cohorts were 97.4 percent\nand 89.2 percent White, respectively (see Goldman and Slotnick 1999).\n206 | Trump\xe2\x80\x99s Judges and Diversity\n\n\x0cDemographic\n\nPercent change\nfrom\nTotal Percentage\nObama to\nTrump\n\nPercent change from G.W. Bush\n*\nto Obama\n\nMale\n\n42\n\n79.2\n\n+20.3\n\n-18.2\n\nFemale\n\n11\n\n20.8\n\n-20.2\n\n+18.2\n\nWhite\n\n45\n\n84.9\n\n-20.2\n\n-19.2\n\nAfrican American/mixed\n\n0\n\n0\n\n-19.8\n\n+6.2\n\nHispanic/mixed\n\n1\n\n1.8\n\n-9.3\n\n+5.8\n\nAsian American/Pacific\nIslander/mixed\n\n7\n\n13.2\n\n+6.5\n\n+7.3\n\nTable 2: Trump\xe2\x80\x99s US Courts of Appeals successful nominees\n* Data for the George W. Bush administration comes from Goldman et al. (2008).\n\nThe effect of Trump\xe2\x80\x99s nominees on the diversity of the courts of appeals is made clearer by\ntable 3. By the end of the Obama presidency, there were no all-White appellate courts. All but\none appellate court held some descriptive representation for Black Americans. The number of\ncourts with no representation for Latinx or Asian Americans was also greatly reduced (from\nseven to four and thirteen to nine respectively). Women of color were more present across these\ncourts after the Obama presidency. At the end of the G. W. Bush administration, eight of the\nthirteen courts had no intersectional representation, and this was further reduced over Obama\xe2\x80\x99s\npresidency to six courts. President Trump\xe2\x80\x99s replacement strategy, which seems to almost wholly\nignore diversity as a goal, saw an uptick in the number of appellate courts without an African\nAmerican or Hispanic American sitting on the bench. Currently, two of the thirteen courts seat\nno Blacks and five seat no Latinx judges. Additionally, the number of appellate courts without\na woman of color present increased from six to seven. This is mainly because President Trump\nreplaced four Black women but only appointed two women of color to the appellate courts\n(one Latina and one Asian American). The only demographic that seems to have benefited from\nPresident Trump\xe2\x80\x99s nominations besides Whites, at least in terms of demographic representation,\nare Asian Americans. President Trump nominated more Asian Americans to the courts of appeals\nthan any of his predecessors and reduced the number of appellate courts without Asian American\nrepresentation from nine to seven. While President Obama also used judicial appointments to\nengage this emerging voting block (see Solberg and Diascro 2020), it is clear that President Trump\nis doing so more boldly, given his general lack of concern regarding the racial diversity of his\nappointments.\n\nTrump\xe2\x80\x99s Judges and Diversity | 207\n\n\x0c2016\n\nAll\nmale\n\nAll\nWhite\n\nNo African\nAmericans\n\nNo\nHispanics\n\nNo Asian\nAmericans\n\nNo women of\ncolor\n\n0\n\n0\n\n1 (7%)\n\n4 (31%)\n\n9 (69%)\n\n6 (46%)\n\n1 (7%)\n\n2 (15%)\n\n5 (38%)\n\n7 (53%)\n\n7 (53%)\n\n2020 0\n\nTable 3: Composition of the US Courts of Appeals, end of Obama administration to Trump\xe2\x80\x99s 200th appointment (N=13)\n\nInvestigations of other presidents\xe2\x80\x99 nominations revealed clear and consistent patterns. Carter\n13\n\nused new seats provided by the Omnibus Judges Act of 1978 to diversify the courts.\n\nClinton\n\nfollowed a different strategy in which he generally replaced women with women and judges of\ncolor with other judges of color (see Spill and Bratton 2001). For President Trump, the replacement\nstrategy is fairly straightforward: in most instances, the replacement will be White and male.\nAgain, the only exception is for Asian Americans, where no members of this demographic left\nthe bench and seven were appointed (13.2 percent of Trump\xe2\x80\x99s appellate nominees). Most of these\njudges replaced Whites (N = 6). Only one replaced another judge of color (Latinx).\nAs the above tables also attest, overall the circuit courts have become more male under President\nTrump, again reversing trends from the last three presidents. Almost 44 percent of President\nObama\xe2\x80\x99s circuit court judges were women. For President Trump, the percentage drops\nsignificantly to almost 21 percent; however, women remain represented on all appellate courts\n14\n\ndespite the low numbers of appointments in the last four years.\n\nIn general, Trump\xe2\x80\x99s nominations to the courts of appeals have not altered the demographic\ncomplexion of the intermediate federal courts as much as many forecasted. However, the\ncontinued levels of diversity have less to do with Trump taking diversity into account and more\nto do with the focus on diversity that held sway for presidents Clinton, G. W. Bush, and Obama.\nTheir joint efforts to diversify the bench have blunted the impact of an appellate cohort that is 79\n15\n\npercent male and almost 85 percent White.\n\n13. Root, Faleschini, and Oyenubi (2019).\n14. The continued presence of women across these courts is likely a remnant of the diversification\nefforts of President Obama and Clinton. President Obama\xe2\x80\x99s appellate judges were almost 44 percent\nwomen (noted above) and President Clinton\xe2\x80\x99s cohort was 33 percent women (Goldman and Slotnick\n1999).\n15. We only focus on symbolic diversity here. We are not suggesting that President Trump\xe2\x80\x99s nominees\nwill have no discernable impact on the decision-making of these courts.\n208 | Trump\xe2\x80\x99s Judges and Diversity\n\n\x0cDistrict Courts\nAs we turned our attention to the US district courts, the trial courts of the federal system, we\nanticipated that Trump\xe2\x80\x99s nominees would be more diverse than those we see at the courts of\nappeals simply because the district courts are so much more numerous and vacancies are more\nfrequent. To put it more concretely, there are so many opportunities to appoint a judge to the\nfederal trial courts that the law of large numbers assures that some of these picks, in the modern\nera, will be women and/or judges of color. Additionally, the literature also suggests that it is easier\nto diversify less prestigious institutions, and while any federal judicial seat is a plum position, the\ndistrict courts are considered less prestigious than the appellate bench (Diamond 1977; Squire\n16\n\n1992). Even for presidents less concerned with diversity, the district courts tend to offer enough\nopportunities for appointments that we expect to see greater diversity regardless, and indeed this\nis the case.\nTable 4 provides overall demographic data on all 94 district courts. As you can see, these courts\nare slightly less male and White than the courts of appeals; however, when we consider only\nactive judges, the differences are negligible (66.8 percent male versus 65.9 percent) for gender,\nand a bit broader for race, with 72 percent of the district court judges self-identifying as White\nand 77 percent of the appellate bench similarly self-identifying. Again, given the overall size\nof the district courts in comparison to the courts of appeals (677 versus 179, respectively) and\nthe findings in the literature, we would expect more diversity in the district courts than the\nappellate courts. However, the federal courts as an institution do not reveal that expected pattern.\nWe can only speculate as to why this is the case and suspect that while the federal district\ncourts are less prestigious when compared to the federal appellate courts, this difference is not\nsignificant enough to generate the gender divide seen in other institutions. Simply put, federal\ntrial court judgeships are sufficiently prestigious to see a skew toward White men on these courts.\nAdditionally, while the overall number of judgeships here is much higher (4.5x), these courts are\ndistributed across the nation and many of them are actually quite small. So while the district\ncourts are a \xe2\x80\x9clarger\xe2\x80\x9d institution, the geographic distribution and separation of the individual courts\nmight mitigate the pattern found previously in the literature.\n\n16. After all, when a district court judge is nominated for a seat on the appellate bench, she is said to be\n\xe2\x80\x9celevated\xe2\x80\x9d to the courts of appeals.\nTrump\xe2\x80\x99s Judges and Diversity | 209\n\n\x0cDemographic\n\nActive judges (n=605)\n\nSenior status judges Total judges\n(n=460)\n(n=1065)\n\nMale\n\n404 (66.8)\n\n366 (79.6)\n\n770 (72.3)\n\nFemale\n\n201 (33.2)\n\n94 (20.4)\n\n295 (27.7)\n\nWhite\n\n437 (72.2)\n\n407 (88.5)\n\n844 (79.2)\n\nAfrican American\n\n81 (13.4)\n\n32 (7.0)\n\n113 (10.6)\n\nHispanic\n\n55 (9.1)\n\n17 (3.7)\n\n72 (6.8)\n\nAsian American/Pacific Islander 22 (3.6)\n\n3 (0.7)\n\n25 (2.4)\n\nNative American\n\n1 (0.2)\n\n1 (0.2)\n\n2 (0.2)\n\nMixed Race\n\n9 (1.5)\n\n0\n\n9 (0.8)\n\nTable 4: All active and senior status District Court judges, June 24, 2020\n\nWhile the overall picture of the district courts is interesting, our focus here is on Trump\xe2\x80\x99s judicial\nnominees, and so we now turn to examine his trial bench cohort. Again, the difference between\nPresident Trump\xe2\x80\x99s judicial cohort and President Obama\xe2\x80\x99s is quite glaring. However, we caution\nthat President Obama\xe2\x80\x99s appointment behavior was a large departure from his predecessors, and\nPresident Trump\xe2\x80\x99s trial court nominees are more like G. W. Bush\xe2\x80\x99s cohort (See table 5). For\nexample, President Trump\xe2\x80\x99s trial court judges are a smidge over 15 percent more male than\nObama\xe2\x80\x99s; whereas Obama\xe2\x80\x99s were 20 percent more female than President G. W. Bush\xe2\x80\x99s district court\njudges. In terms of race and ethnicity, though, President Trump\xe2\x80\x99s cohort is distinctly White, much\nmore so than President Obama\xe2\x80\x99s and even President G. W. Bush\xe2\x80\x99s. And while President Trump can\nbe lauded for continuing to increase representation of Asian Americans, this increase comes at the\nexpense of other underrepresented groups on the bench, particularly Blacks and Latinx judges.\nClearly, President Trump is not continuing G. W. Bush\xe2\x80\x99s use of judicial nominations as a tool for\noutreach to the Latinx community, at least not in the lower federal courts.\n\n210 | Trump\xe2\x80\x99s Judges and Diversity\n\n\x0cDemographic\n\nNumber of\nnominees\n(n=143)\n\nPercentage\n\nPercent change from\nObama to Trump\n\nPercent change from\n*\nG.W. Bush to Obama\n\nMale\n\n106\n\n74.1\n\n+15.1\n\n-20.3\n\nFemale\n\n37\n\n25.9\n\n-15.1\n\n+20.3\n\nWhite\n\n122\n\n85.3\n\n+20.4\n\n-16.2\n\nAfrican American/\nmixed\n\n9\n\n6.3\n\n-13.5\n\n+12.9\n\nHispanic/mixed\n\n7\n\n4.9\n\n-6.2\n\n+.8\n\nAsian American/\nPacific Islander/\nmixed\n\n5\n\n3.5\n\n+3.2\n\n+5.2\n\nNative American/\nmixed\n\n1\n\n0.7\n\n+0.4\n\n+.3\n\n**\n\nTable 5: Demographics of President Trump\xe2\x80\x99s District Court successful nominees through his 200th appointment\n* Data for the George W. Bush administration comes from Goldman et al. (2007).\n** Ada E. Brown (N.D. Tex.) is Black/Native American and is included in both categories. As a result, the percentages\nadd up to 100.7 percent because one appointee is counted twice.\n\nThis picture of Trump\xe2\x80\x99s demographic impact is clearer when we examine the diversity across the\ndistrict courts by demographic category. Table 6 shows that President Trump\xe2\x80\x99s lack of diversity in\nhis cohort is increasing the number of courts lacking key demographics. Even though President\nTrump seems to be reaching out to the Asian American community more than previous presidents,\nthese nominees have not been distributed in a way that actually increases the number of courts\nwith this representation. Indeed, the number of district courts without Asian American\nrepresentation increased from seventy-three to seventy-six during Trump\xe2\x80\x99s term, highlighting\nplainly how underrepresented this group is among federal judges. Similarly, under President\nTrump the number of courts without any judges of color or women increased as did the number\nof courts without women of color, and without Black or Latinx representation.\n\n2016\n\n2020\n\nAll White and\nall male\n\nAll\nmale\n\nAll\nNo African\nWhite Americans\n\nNo\nNo Asian\nHispanics Americans\n\nNo women\nof color\n\nNo\nWhites\n\n6\n\n8\n\n36\n\n42\n\n64\n\n73\n\n52\n\n1\n\n(6%)\n\n(9%)\n\n(38%)\n\n(45%)\n\n(68%)\n\n(78%)\n\n(55%)\n\n(1%)\n\n7\n\n9\n\n37\n\n43\n\n67\n\n76\n\n55\n\n2\n\n(7%)\n\n(10%) (39%)\n\n(46%)\n\n(71%)\n\n(81%)\n\n(59%)\n\n(2%)\n\nTable 6: Composition of the District Courts, end of Obama administration to Trump\xe2\x80\x99s 200th appointment (N=94)\nTrump\xe2\x80\x99s Judges and Diversity | 211\n\n\x0cWhen we consider the sheer number of appointments made to the federal courts, the only pattern\nthat really emerges is that President Trump worked fairly hard to create a homogenous cohort that\nis significantly male and White. Again, table 6 provides the overall impact of Trump\xe2\x80\x99s appointments\non several diversity categories. The next four tables (7 through 10) provide a different perspective\non diversity by keying in on the replacement effects of the Trump judges on district and appellate\ncourts. These tables reveal that for men, Whites, and Asian Americans the numbers of appointed\nare higher than the numbers replaced. This pattern holds for all three of these groups, but\nthe overall numbers of Asian Americans in this category (five appointed and two replaced) are\nextremely small in comparison to the other two groups (Whites and men)\xe2\x80\x94highlighting the very\nclear pattern of homogeneity in the Trump nominating class.\nRace/ethnicity\n\nTotal appointed Total replaced Difference\n\nWhite\n\nAfrican American\n\nLatino/a\n\nAsian American/Pacific Islander\n\n122\n\n125\n\n85.3%\n\n87.4%\n\n7\n\n11\n\n4.9%\n\n7.7%\n\n7\n\n5\n\n4.9%\n\n3.5%\n\n5\n\n2\n\n3.5%\n\n1.4%\n\n2\n\nMixed race\n\n0\n\n1.4%\n\n-3\n\n-4\n\n+2\n\n+3\n\n+2\n\nTable 7: Appointments and replacements by race/ethnicity for the District Courts\n\nGender Total appointed Total Replaced Difference\nMale\n\nFemale\n\n106\n\n100\n\n74.1%\n\n69.9%\n\n37\n\n43\n\n25.9%\n\n30.1%\n\n+6\n\n-6\n\nTable 8: Appointments and replacements by gender for the District Courts\n\n212 | Trump\xe2\x80\x99s Judges and Diversity\n\n\x0cRace/ethnicity\nWhite\n\nTotal appointed Total replaced Difference\n45\n\n45\n\n84.9%\n\n84.9%\n4\n\nAfrican American 0\n\nLatino/a\n\nAsian American\n\n0\n\n-4\n\n7.5%\n\n1\n\n4\n\n1.9%\n\n7.5%\n\n7\n\n-3\n\n0\n\n13.2%\n\n+7\n\nTable 9: Appointments and replacements by race/ethnicity for the US Courts of Appeals\n\nGender Total appointed Total replaced Difference\nMale\n\nFemale\n\n42\n\n40\n\n79.2%\n\n75.5%\n\n11\n\n13\n\n20.8%\n\n24.5%\n\n+2\n\n-2\n\nTable 10: Appointments and replacements by gender for the US Courts of Appeals\n\nYet again, these numbers look particularly bad when compared to the numbers from the Obama\nadministration. However, this dyadic comparison may be unfair, as it is possible that Obama\nwas the outlier rather than Trump (see Solberg and Diascro 2020). To place President Trump\xe2\x80\x99s\njudges in a historical context, we compare President Trump\xe2\x80\x99s replacement patterns to the last\neight presidents\xe2\x80\x94starting with Carter since he was the first president to prioritize diversity and\nimplement a related appointment strategy (Goldman 1997). To do so, we employ a crude index of\nincreasing diversity in which White males serve as the baseline and are coded zero. The index\nincreases by one whenever a White man is replaced by a White woman or man of color or if a\nWhite woman is replaced by a woman of color. The index increases by two if a White man is\nreplaced by a woman of color (intersectionality). The index is scored the same way in reverse.\nAccordingly, if a White man replaces a woman of color, the index drops two points (see Solberg\n17\n\nand Diascro 2020).\n\n17. We deem this a crude measure of diversity because our equivalence of men of color and White\nfemales is less than ideal; however, we believe this measure allows us to gain a sense of the trends in\njudicial appointments over time.\nTrump\xe2\x80\x99s Judges and Diversity | 213\n\n\x0cThe data in table 11 below clearly show that President Trump\xe2\x80\x99s flouting of diversity as a\nconsideration in his judicial appointments is not by accident. While his cohorts resemble those\nof Reagan or G. H. W. Bush, demographically speaking, the large-scale changes in the bench\nover time and the continued goal of presidents from both parties to increase the diversity of\nthe bench\xe2\x80\x94either because they are committed to increasing representation and opportunities\nfor underrepresented groups, or because they are using judicial nominations as outreach to\ncommunities for their party, or both\xe2\x80\x94reveal that President Trump is truly different in his approach\nand is bucking historical trends. Bluntly put, his increases in diversity are among the smallest on\nthe list and compare poorly to these previous presidents. The lone exception to this statement\nmay be Reagan, but even Reagan scored more \xe2\x80\x9c1s\xe2\x80\x9d than Trump in raw numbers and percentages.\nTrump, by far, has done the most to reduce diversity at a time when contributing to diversity\nis significantly easier, given the current demographics of the profession (see Carsh 2019, and\nAchury and Hofer 2020, this volume). Given the importance of diversity to representation and the\nlegitimacy of institutions, the judiciary should be extremely concerned about this trend.\nIncrease in diversity 2\n\n1\n\n0\n\n-1\n\n37\n\n85\n\n2\n\n3% 29%\n\n66%\n\n1%\n\n3\n\n51\n\n229\n\n8\n\n1%\n\n17%\n\n79%\n\n3%\n\n5\n\n44\n\n97\n\n4\n\n3% 29%\n\n65%\n\n3%\n\n13\n\n143\n\n172\n\n16\n\n4%\n\n42%\n\n50%\n\n5%\n\n12\n\n90\n\n178\n\n13\n\n4%\n\n30% 60% 4%\n\n2%\n\n28\n\n141\n\n*\n\n-2\n\nTotal\n\n0\n\n128\n\n0\n\n291\n\n0\n\n150\n\n0\n\n344\n\nPresident\nCarter\n\nReagan\n\nG.H.W. Bush\n\nClinton\n\nG.W. Bush\n\nObama\n\nTrump\nTotal\n\n4\n\n5\n\n130\n\n28\n\n1\n\n9% 43%\n\n40%\n\n9%\n\n>1%\n\n5\n\n120\n\n40\n\n2\n\n3% 15%\n\n61%\n\n20% 1%\n\n70\n\n1011\n\n111\n\n29\n\n535\n\n8\n\n298\n\n328\n\n196\n1735\n\nTable 11: Changes in diversity: A historical comparison\n* Total numbers for each president will not match overall appointments for two reasons. First, new seats are not\n214 | Trump\xe2\x80\x99s Judges and Diversity\n\n\x0cincluded in this table. Second, some judges are counted twice in that they were appointed to two different courts by\nthe same president. In other words, if President Clinton appointed someone to the district court in his first year and\nthen elevated that same person to the court of appeals in his fifth year, that judge enters the dataset twice.\n\nAs we have mentioned several times now, Trump\xe2\x80\x99s judicial cohort at either the courts of appeals\nor the district courts is not as monolithic as was predicted early in his administration (see\nSolberg and Waltenburg 2018a, b, and c.) While we make no claim that Trump\xe2\x80\x99s judges are by\nany means as diverse as his recent predecessors, the apparent difference between those early\npredictions, supported by contemporaneous analyses, and the final tally leaves one wondering\nwhether something changed or whether scholars were just too quick off the mark in making\nclaims about Trump\xe2\x80\x99s nominees. To investigate this small puzzle further, we collected data on\nthe initial nomination for each of Trump\xe2\x80\x99s successful judicial nominees as well as information\n18\n\non their self-identified gender and race.\n\nFigure 1 displays a scatterplot of the percentage of\n\nTrump\xe2\x80\x99s appointees who are women and/or judges of color over time, while figure 2 displays\nthe results of using a statistical procedure that aids in identifying any signal or pattern in the\ndata. Specifically, the procedure computes the best-fitting regression line for the dependent and\nindependent variables for a given observation and then a small set of additional observations near\nthat observation. The resulting estimations are then weighted so that the specific observation\ncontributes the most to the estimated value of the line, while observations further away contribute\nless to the estimated value. Since the procedure estimates a series of local lines, it is able to follow\n19\n\nthe data much more closely than does the standard regression procedure.\n\nAlthough the scatterplot itself is quite noisy, figure 2 displays a discernable pattern: more women\nand judges of color\n\n20\n\nwere appointed later in time than earlier. In other words, there does seem\n\nto be a shift as time passes. While we cannot say whether President Trump or his administration\nreacted to the coverage in various outlets alluding to the lack of diversity in his judicial nominees,\n\n18. Again, this information was gleaned from the biographical database available from the Federal\nJudicial Center. In doing so, we also noticed that President Trump renominated thirteen judges that\nwere initially nominated by President Obama. Given the vitriol that President Trump spewed about\nhis predecessor and his judges, we were surprised there were so many. We do not know if this is de\nrigueur for presidents and intend to investigate this in future work.\n19. See https://www.stata.com/manuals13/rlowess.pdf (last accessed November 26, 2020).\n20. Previously, the literature has denoted this broad category as nontraditional. The term began as an\neasy way to class the few women and minority judges on the federal bench and because, due to\ndiscrimination in the legal field, these men and women tended to follow career paths divergent from\ntheir White and male counterparts. We eschew that term as it suggests that alternative career paths\nare somehow \xe2\x80\x9cnot normal\xe2\x80\x9d and places the privileged path paved for Whites and men as the normal.\nWe believe this is changing, though slowly, and the literature needs to evolve as well.\nTrump\xe2\x80\x99s Judges and Diversity | 215\n\n\x0cwe can say that as time passes Trump\xe2\x80\x99s cohort was more diversified, yielding an overall cohort that\nwas less White and less male than initially predicted.\n\nFigure 1. Scatterplot of Percentage of Trump Appointments that Are Women and/or Judges of\nColor over Time\n\nFigure 2. Lowess regression of percentage of Trump appointments that are women and/or\njudges of color over time\n\n216 | Trump\xe2\x80\x99s Judges and Diversity\n\n\x0cConclusion\nIn this paper, we took a deep look into the demographic diversity of President Trump\xe2\x80\x99s successful\nlower court judges. As expected, we found that his judicial cohort is generally lacking in diversity.\n21\n\nIndeed, he is appointing judges like it is 1989.\n\nWhile it is reasonable to suggest that President\n\nTrump compares well with Presidents Reagan and G. H. W. Bush in terms of diversity, such a\ncomparison ignores the thirty- to forty-year spread between the start of the Reagan presidency\nand the end of the Trump presidency. Recall that in 1980 few women were on the bench or\nattending law school. Sandra Day O\xe2\x80\x99Connor became the first woman on the Supreme Court in 1981.\nReagan\xe2\x80\x99s selection pool was significantly smaller in terms of women and lawyers of color. While\nthere are still significant pipeline problems (Carsh 2019; Achury and Hofer 2020, this volume),\nwomen now make up a majority of most law school cohorts, and lawyers and judges of color\nare easily found on both sides of the ideological aisle.\n\n22\n\nPresident Trump\xe2\x80\x99s 2020 list of twenty\n\npotential justices is 25 percent people of color (four men and one woman) and 30 percent women\n(N = 6). Among the potential justices of color are people who self-identify as Asian American and\nBlack; three judges are of Latin descent (Lagoa and Cruz are Cuban American, and Muniz\xe2\x80\x99s family\nemigrated from Nicaragua).\n\n23\n\nThus it is clearly possible to find conservative nominees that also\n\nserve to broaden the descriptive representation on the bench.\nExploring the demographics of Trump\xe2\x80\x99s judges is more than an exercise in ranking presidents by\ntheir commitment to diversity. Diversity yields tangible benefits for the courts and for US citizens.\nDiversity has direct connections to diffuse support for the courts and legitimacy for the judiciary\nas a whole. While the courts still seem to enjoy greater support and trust than the rest of the\n24\n\nfederal government, this support is splintered by partisan affiliation.\n\nThis broad support can only\n\nbe enhanced by interactions with courts and those interactions are affected by diversity (Lee et\nal. 2021). Litigants and lawyers before the federal courts are more likely to perceive the process as\nfair and equitable if the bench is diverse (Scherer and Curry 2010; Ulbig 2007). Thus the question\nof how diverse President Trump\xe2\x80\x99s judges are has much broader implications than a commitment to\nequality and social justice. For example, Democrats are less likely to support a court because they\n\n21. Apologies to Prince and his iconic song \xe2\x80\x9cParty like It\xe2\x80\x99s 1999.\xe2\x80\x9d\n22. To further support this contention, we can look to the diverse cohort appointed by G. W. Bush, who\nvalued ideology as well as diversity in his judicial nominees (see Solberg 2005).\n23. It is interesting that Trump\xe2\x80\x99s Supreme Court list has more Latinx representation than Asian\nAmerican, since the latter demographic is the only one save Whites that gained any representation\nunder this president.\n24. See Golde (2019).\nTrump\xe2\x80\x99s Judges and Diversity | 217\n\n\x0cperceive the courts as tilted by President Trump, but if those courts remain diverse and mirror the\n25\n\npopulation, then some of that support may be regained.\n\nReferences\nBaum, L. 2009. Judges and Their Audiences: A Perspective on Judicial Behavior. Princeton, NJ:\nPrinceton University Press.\nBenson, C. R. 2007. \xe2\x80\x9cA Renewed Call for Diversity among Supreme Court Clerks: How a Diverse\nBody of Clerks Can Aid the High Court as an Institution.\xe2\x80\x9d Harvard BlackLetter Law Journal\n23:23\xe2\x80\x9354.\nBonneau, Chris W., and Melinda Gann Hall. 2009. In Defense of Judicial Elections. New York:\nRoutledge.\nBouie, Jamelle. 2020. \xe2\x80\x9cCourt Packing Can Be an Instrument of Justice.\xe2\x80\x9d New York Times, October\n9,\n\n2020.\n\nhttps://www.nytimes.com/2020/10/09/opinion/court-packing-amy-coney-\n\nbarrett.html.\nBoyd, Christina L., Lee Epstein, and Andrew D. Martin. 2010. \xe2\x80\x9cUntangling the Causal Effects of Sex\non Judging.\xe2\x80\x9d American Journal of Political Science 54 (2): 389\xe2\x80\x93411.\nThe Conversation. 2018. \xe2\x80\x9cTrump\xe2\x80\x99s Presidency Marks the First Time in 24 Years that the Federal\nBench Is Becoming Less Diverse.\xe2\x80\x9d June 11, 2018. https://theconversation.com/trumpspresidency-marks-the-first-time-in-24-years-that-the-federal-bench-is-becoming-lessdiverse-97663.\nDiamond, Irene. 1977. Sex Roles in the State House. New Haven, CT: Yale University Press.\nDiascro, Jennifer Segal, and Rorie Spill Solberg. 2009. \xe2\x80\x9cGeorge W. Bush\xe2\x80\x99s Legacy on the Federal\nBench: Policy in the Face of Diversity.\xe2\x80\x9d Judicature 92:289\xe2\x80\x93301.\nDiascro, Jennifer Segal, and Rorie Spill Solberg. \xe2\x80\x9cGeorge W. Bush\xe2\x80\x99s legacy on the federal bench:\nPolicy in the face of diversity.\xe2\x80\x9d Judicature 92 (2008): 289.\n\n25. During the 2020 campaign, some argued that GOP efforts to replace Justice Ginsburg should be met\nby Democrats with court packing to readjust the courts. See Bouie (2020).\n218 | Trump\xe2\x80\x99s Judges and Diversity\n\n\x0cEaston, David. 1965. A Systems Analysis of Political Life. New York: Wiley.\nEpstein, Rachel. 2020. \xe2\x80\x9cKamala Harris Has Becomes the First Black, South Asian, Female Vice\nPresident-Elect.\xe2\x80\x9d Marie Claire, November 7, 2020. https://www.marieclaire.com/politics/\na34607314/kamala-harris-vice-president-win-reactions/.\nGarrett, Major. 2018. \xe2\x80\x9cTrump Sides with Putin over US Intelligence during Remarkable Press\nConference in Helsinki.\xe2\x80\x9d CBS News, July 18, 2018. https://www.cbsnews.com/news/trumpsides-with-putin-over-u-s-intelligence-in-remarkable-helsinki-press-conference/.\nGay, Claudine. 2002. \xe2\x80\x9cSpirals of Trust? The Effect of Descriptive Representation between Citizens\nand Their Government.\xe2\x80\x9d American Journal of Political Science 46 (4): 717\xe2\x80\x9332.\nGolde, Kalvis. 2019. \xe2\x80\x9cRecent Polls Show Confidence in Supreme Court, with Caveats.\xe2\x80\x9d Scotusblog\n(blog),\n\nOctober\n\n22,\n\n2019.\n\nhttps://www.scotusblog.com/2019/10/recent-polls-show-\n\nconfidence-in-supreme-court-with-caveats/.\nGoldman, Sheldon, and Elliot Slotnick. 1999a. \xe2\x80\x9cClinton\xe2\x80\x99s Second Term Judiciary: Picking Judges\nUnder Fire.\xe2\x80\x9d Judicature 82 (6): 264\xe2\x80\x9384.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 1999b. \xe2\x80\x9cPicking Judges under Fire.\xe2\x80\x9d Judicature 82 (6): 265\xe2\x80\x9384.\nGoldman, Sheldon, Elliot Slotnick, Gerard S. Gryski, and Sara Schiavoni. 2007. \xe2\x80\x9cPicking Judges in a\nTime of Turmoil: W. Bush\xe2\x80\x99s Judiciary during the 109th Congress.\xe2\x80\x9d Judicature 90 (6): 252\xe2\x80\x9383.\nGoldsmith, Jack. 2017. \xe2\x80\x9cWill Donald Trump Destroy the Presidency?\xe2\x80\x9d Atlantic, October 2017.\nhttps://www.theatlantic.com/magazine/archive/2017/10/will-donald-trump-destroy-thepresidency/537921/.\nGrant, Tim. 2019. \xe2\x80\x9cTrump\xe2\x80\x99s Refusal to Release His Tax Returns Breaks a Long Presidential\nTradition.\xe2\x80\x9d Pittsburgh Post-Gazette, May 6, 2019. https://www.post-gazette.com/news/politicsnation/2019/05/06/donald-trump-taxes-presidential-tax-law-ways-means-committee/\nstories/201904250114.\nHernandez, Salvador. 2020. \xe2\x80\x9cHere\xe2\x80\x99s How Women Reacted to Kamala Harris Speaking for the\nFirst\n\nTime\n\nas\n\nthe\n\nVice\n\nPresident-Elect.\xe2\x80\x9d\n\nBuzzFeed\n\nNews,\n\nNovember\n\n7,\n\n2020.\n\nhttps://www.buzzfeednews.com/article/salvadorhernandez/kamala-harris-victory-speechreaction.\nHerring, Cedric. 2009. \xe2\x80\x9cDoes Diversity Pay? Race, Gender, and the Business Case for Diversity.\xe2\x80\x9d\nAmerican Sociological Review 74 (2): 208\xe2\x80\x9324.\nJanes, Chelsea. 2020. \xe2\x80\x9cAmericans React to Kamala Harris\xe2\x80\x99s Historic Victory: \xe2\x80\x98Look Baby, She Looks\nTrump\xe2\x80\x99s Judges and Diversity | 219\n\n\x0clike Us.\xe2\x80\x99\xe2\x80\x9d Washington Post, November 7, 2020. https://www.washingtonpost.com/politics/\nreactions-kamala-harris-vice-president/2020/11/07/8eaad904-213a-11eb-90ddabd0f7086a91_story.html.\nKlein, D., and L. Baum. 2001. \xe2\x80\x9cBallot Information and Voting Decisions in Judicial Elections.\xe2\x80\x9d\nPolitical Research Quarterly 54 (4): 709\xe2\x80\x9328.\nLee, Claire, Rorie Spill Solberg, and Eric Waltenburg. 2021. \xe2\x80\x9cSee Jane Judge: Descriptive\nRepresentation and Diffuse Support for a State Supreme Court.\xe2\x80\x9d Politics, Groups, and Identities.\nhttps://doi.org/10.1080/21565503.2020.1864651.\nMansbridge, Jane. 1999. \xe2\x80\x9cShould Blacks Represent Blacks and Women Represent Women? A\nContingent \xe2\x80\x98Yes.\xe2\x80\x99\xe2\x80\x9d Journal of Politics 61 (3): 628\xe2\x80\x9357.\nMauro, T. 2014. \xe2\x80\x9cDiversity and Supreme Court Law Clerks.\xe2\x80\x9d Marquette Law Review 98:361.\nPitkin, Hanna. 1967. The Concept of Representation. Berkeley: University of California Press.\nRoot, Danielle, Jake Faleschini, and Grace Oyenubi. 2019. \xe2\x80\x9cBuilding a More Inclusive Federal\nJudiciary.\xe2\x80\x9d Center for American Progress, October 3, 2019. https://www.americanprogress.org/\nissues/courts/reports/2019/10/03/475359/building-inclusive-federal-judiciary/.\nScherer, Nancy, and Brett Curry. 2010. \xe2\x80\x9cDoes Descriptive Race Representation Enhance\nInstitutional Legitimacy? The Case of the U.S. Courts.\xe2\x80\x9d Journal of Politics 72 (1): 90\xe2\x80\x93104.\nSolberg, Rorie Spill. 2005. \xe2\x80\x9cDiversity and G. W. Bush\xe2\x80\x99s Judicial Appointments: Serving Two Masters.\xe2\x80\x9d\nJudicature 88:276\xe2\x80\x9383.\nSolberg, Rorie Spill, and Jennifer Segal Diascro. 2020. \xe2\x80\x9cA Retrospective on Obama\xe2\x80\x99s Judges:\nDiversity, Intersectionality, and Symbolic Representation.\xe2\x80\x9d Politics, Groups, and Identities 8 (3):\n471\xe2\x80\x9387.\nSolberg, Rorie Spill, and Eric N. Waltenburg. 2017. \xe2\x80\x9cTrump\xe2\x80\x99s Judicial Nominations Would Put a Lot\nof White Men on Federal Courts.\xe2\x80\x9d Monkey Cage (blog). Washington Post, November 28, 2017.\nhttps://www.washingtonpost.com/news/monkey-cage/wp/2017/11/28/this-is-how-trumpis-changing-the-federal-courts/.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2018a. \xe2\x80\x9cAre Trump\xe2\x80\x99s Judicial Nominees Really Being Confirmed at a Record Pace? The\nAnswer\n\nIs\n\nComplicated.\xe2\x80\x9d\n\nMonkey\n\nCage\n\n(blog).\n\nWashington\n\nPost,\n\nJune\n\n14,\n\n2018.\n\nhttps://themonkeycage.org/2018/06/are-trumps-judicial-nominees-really-being-confirmedat-a-record-pace-the-answer-is-complicated/.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2018b. \xe2\x80\x9cTrump\xe2\x80\x99s Judicial Nominations Would Put a Lot of White Men on Federal Courts.\xe2\x80\x9d\n220 | Trump\xe2\x80\x99s Judges and Diversity\n\n\x0cMonkey Cage (blog). Washington Post, November 17, 2017. https://www.washingtonpost.com/\nnews/monkey-cage/wp/2017/11/28/this-is-how-trump-is-changing-the-federal-courts/.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2018c. \xe2\x80\x9cTrump\xe2\x80\x99s Presidency Marks the First Time in 24 Years that the Federal Bench Is\nBecoming Less Diverse.\xe2\x80\x9d The Conversation (blog), June 11, 2018. https://theconversation.com/\ntrumps-presidency-marks-the-first-time-in-24-years-that-the-federal-bench-is-becomingless-diverse-97663.\nSpill, Rorie L., and Kathleen A. Bratton. 2001. \xe2\x80\x9cClinton and Diversification of the Federal Judiciary.\xe2\x80\x9d\nJudicature 84 (5): 256\xe2\x80\x9361.\nSquire, Peverill. 1992. \xe2\x80\x9cLegislative Professionalization and Membership Diversity in State\nLegislatures.\xe2\x80\x9d Legislative Studies Quarterly 17 (1): 69\xe2\x80\x9379.\nUlbig, Stacy G. 2007. \xe2\x80\x9cGendering Municipal Government.\xe2\x80\x9d Social Science Quarterly 88 (8):1106\xe2\x80\x9323.\nWashington Post. 2017. \xe2\x80\x9cTrump Goes above and beyond to Break the Unwritten Rules of Governing.\xe2\x80\x9d\nJanuary 31, 2017. https://www.washingtonpost.com/opinions/trump-goes-above-and-beyondto-break-the-unwritten-rules-of-governing/2017/01/31/46cd1fcee7d3-11e6-b82f-687d6e6a3e7c_story.html.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2020. \xe2\x80\x9cWhat Trump Officials Really Say\xe2\x80\x94in Denying that He Disparaged Fallen Troops.\xe2\x80\x9d\nSeptember 8, 2020. https://www.washingtonpost.com/politics/2020/09/08/trump-officialsmilitary-disparagement-denials/.\nWheeler, Russell. 2012. \xe2\x80\x9cJudicial Nominations and Confirmations in Obama\xe2\x80\x99s First Term.\xe2\x80\x9d Brookings\nInstitution, December 13, 2012. https://www.brookings.edu/research/judicial-nominationsand-confirmations-in-obamas-first-term/.\nWright, Katerina. 2017. \xe2\x80\x9cNorms Watch: Tracking Team Trump\xe2\x80\x99s Breaches of Democratic Traditions.\xe2\x80\x9d\nJust Security (blog), January 13, 2017. https://www.justsecurity.org/36303/normalizationwatch/.\n\nClass Activity\n1. Break students into small groups and assign each group a district or circuit court. If it is a\nsmall class, you can just use the courts in your home circuit.\n2. Have the students use the Federal Judicial Center (FJC) website to examine the composition\nTrump\xe2\x80\x99s Judges and Diversity | 221\n\n\x0cof their court before and after Obama\xe2\x80\x99s appointments, before and after Trump\xe2\x80\x99s\nappointments, and before and after Biden\xe2\x80\x99s appointments.\n3. Students should then discuss how these appointments affected the diversity of the court.\na. You could also have students investigate partisan balance or even the background of the\njudges appointed, since the FJC provides brief resumes for all confirmed judges.\n4. Reconvene as a class to discuss the results.\n\n222 | Trump\xe2\x80\x99s Judges and Diversity\n\n\x0c10. The Appearance of Justice\nA Historical Case Study Evaluating One Supreme Court Justice\xe2\x80\x99s Recusal\nDecisions\nCRAIG ALAN SMITH\n\nJudicial recusal is when a judge voluntarily disqualifies herself from hearing a case. The reasons\nfor this usually include conflicts of interest, such as financial investments with one of the parties\nor personal or professional relationships with the parties or their attorneys. Federal law requires\njudges to recuse themselves under certain circumstances; for example, when a district court\njudge gets promoted to the appellate level or a trial judge sits by designation on an appeal, she\ncannot hear a case that she decided previously. For the most part, at the trial and appellate levels,\nthere has been little controversy over the recusal of federal judges because when they disqualify\nthemselves\xe2\x80\x94whether voluntarily or on the basis of one of the parties requesting it\xe2\x80\x94another\n1\n\nfederal judge is capable of serving as a substitute.\n\nSuch is not the case for the justices of the US Supreme Court because the nation\xe2\x80\x99s Constitution\nrequires that there be \xe2\x80\x9cone Supreme Court.\xe2\x80\x9d No one, not even retired justices, can substitute for\none of the Court\xe2\x80\x99s nine members. If any one of them disqualifies themselves, then the Court would\nbe left shorthanded. In most cases, this would not pose a problem, but in close decisions, one\njustice\xe2\x80\x99s recusal could leave the Court evenly divided, and the lower court\xe2\x80\x99s decision would stand.\nAs a result, Supreme Court justices feel a \xe2\x80\x9cduty to sit,\xe2\x80\x9d an expression that usually refers to not\nleaving the Court evenly divided but just as likely reflects the singularly unique position of the\nSupreme Court within the federal hierarchy. There is, after all, only one Supreme Court.\nLike other federal judges, today\xe2\x80\x99s Supreme Court justices are legally bound to disqualify\nthemselves. However, for much of the High Court\xe2\x80\x99s history, there was no recusal requirement.\nInstead, justices exercised their discretion and sense of propriety when deciding whether to sit\non a case, and they adopted common-law principles, or the prevailing practices of other federal\njudges (Frank 1947). Whenever questions arose over their disqualification, controversy more often\nfollowed from their participation in a case rather than from their recusal. According to Stempel,\nSupreme Court history has been \xe2\x80\x9crife with questionable recusal practices and conduct widely\ncondemned by today\xe2\x80\x99s standards of disqualification\xe2\x80\x9d (1987, 608). Frost similarly observed that\n\n1. Hirsch and Loveland (2002) offer a comprehensive explanation of the federal recusal statutes. For\nthe purposes of this discussion, the terms recusal and disqualification are used synonymously,\nalthough technically, there can be a difference (Bassett 2005, 21n5).\nAppearance of Justice | 223\n\n\x0c\xe2\x80\x9con many occasions during the past 200 years the public has focused on a judge\xe2\x80\x99s questionable\ndecision not to recuse and has found the laws governing that decision to be wanting\xe2\x80\x9d (2005,\n532\xe2\x80\x9333). All of that changed in 1948, when Congress, for the first time, mandated that justices must\ndisqualify themselves under certain circumstances.\nFor example, the 1948 legislation required that justices disqualify themselves when they had been\n2\n\n\xe2\x80\x9cof counsel\xe2\x80\x9d or when they had been \xe2\x80\x9ca material witness\xe2\x80\x9d in a case before the Court. Of course,\njustices continued to exercise considerable discretion over their recusal decisions, as the new\nlegislation left it to their opinion as to whether they were \xe2\x80\x9cso related to or connected with\xe2\x80\x9d\na party in a case or to their lawyer. The issue that prompted the 1948 legislation involved, in\npart, Justice Hugo Black\xe2\x80\x99s participation in a case argued by his former law partner, Crampton\nHarris, in Jewell Ridge Coal v. United Mine Workers, 325 U.S. 161 (1945) and Justice Robert Jackson\xe2\x80\x99s\nconcurring opinion to a denial for rehearing where Jackson intimated the impropriety of Black\xe2\x80\x99s\nhaving participated, as the case raised \xe2\x80\x9ca question as to the qualification of one of the Justices to\n3\n\ntake part in the decision.\xe2\x80\x9d\n\nFor the next quarter of a century, by and large Supreme Court disqualification remained, as\nVirelli put it, a \xe2\x80\x9cpersonal, independent, unreviewable decision by an individual justice whether to\nparticipate in an individual case\xe2\x80\x9d (2012, 1547). Therefore, in 1974 Congress amended the recusal\nlaw to create a \xe2\x80\x9cstricter, more comprehensive, and objective\xe2\x80\x9d standard for Supreme Court\ndisqualification (Stempel 1987, 594).\nThis study focuses on that period from 1948 to 1974, when Congress first required justices to\ndisqualify themselves but the justices had few precedents to guide them other than past practices.\nSpecifically, this study will examine the recusal decisions of Justice Tom C. Clark, who served the\n4\n\nlongest (1949\xe2\x80\x9367) of any justice whose service commenced post-1948 but concluded pre-1974. As\na case study, Justice Clark offers several compelling reasons to review recusal behavior. First, Clark\nhad served as the US attorney general for four years before President Harry S. Truman elevated\nhim to the High Court. As a result, he recused himself from more cases than most of his Court\ncolleagues, especially during his first four terms. Hume found that Clark had a recusal rate of 4\npercent over eighteen terms; the other justices with whom he served with higher recusal rates\nwere short-term Justices Goldberg (4.5 percent) and Fortas (6.25 percent) and former attorney\ngeneral Robert Jackson (4.5 percent; 2014, figure 1). Interestingly, more former attorneys general\nhave gone to the Supreme Court than former solicitors general, although more attention has\n\n2. 28 U.S.C. \xc2\xa7 455, \xe2\x80\x9cDisqualification of Justice, Judge, or Magistrate,\xe2\x80\x9d 1948.\n3. Jewell Ridge Coal v. United Mine Workers, 325 U.S. 897 (1945).\n4. The other justices who fit these parameters were Arthur Goldberg (1962\xe2\x80\x9365), Abe Fortas (1965\xe2\x80\x9369),\nCharles Whittaker (1957\xe2\x80\x9362), Sherman Minton (1949\xe2\x80\x9356), Earl Warren (1953\xe2\x80\x9369), and John Harlan\n(1955\xe2\x80\x9371).\n224 | Appearance of Justice\n\n\x0cfocused on the recusal patterns of former solicitors general (Beamer 2012; Hume 2014; Stempel\n1987; Virelli 2011). In fact, when Clark retired from the Court, he acknowledged that \xe2\x80\x9cfor the first\ntime in 69 years the membership did not include a former Attorney General. No other public office\nhas furnished so many members of the Court\xe2\x80\x9d (1969b).\nAnother reason for examining Clark\xe2\x80\x99s recusal decisions\xe2\x80\x94or more specifically, his decisions to\nparticipate in cases when he might have disqualified himself\xe2\x80\x94relates to Congress\xe2\x80\x99s 1974\namendments. The impetus for the 1974 amendments was, in part, Justice William Rehnquist\xe2\x80\x99s\ndecision to participate in Laird v. Tatum, 408 U.S. 1 (1972) after the respondents requested his\ndisqualification. Laird challenged the government\xe2\x80\x99s domestic surveillance program. Before joining\nthe Court, Rehnquist had served as head of the Office of Legal Counsel at the Justice Department,\nand because he had testified before Congress about the program, respondents argued that he had\nadvised the White House about the program\xe2\x80\x99s constitutionality. Rehnquist denied the respondents\xe2\x80\x99\nrequest and instead joined a five-person majority to support the government\xe2\x80\x99s contention that\nthe respondents lacked standing. In a surprising move, which was unnecessary and admittedly\n5\n\nunprecedented, Rehnquist defended his participation in a lengthy memorandum that became\nthe object of widespread commentary and criticism (\xe2\x80\x9cJustice Rehnquist\xe2\x80\x99s Decision to Participate\xe2\x80\x9d\n1973; MacKenzie 1974; Stempel 1987). Consequently, Congress amended the recusal statute, most\nlikely in response to Rehnquist\xe2\x80\x99s memorandum. Stempel characterized Rehnquist\xe2\x80\x99s defense as\n\xe2\x80\x9cpernicious,\xe2\x80\x9d calling it \xe2\x80\x9can important catalyst\xe2\x80\x9d in congressional reform efforts (2009, 81). The\namended statute required justices to disqualify themselves when their \xe2\x80\x9cimpartiality might\nreasonably be questioned.\xe2\x80\x9d In other words, the appearance of partiality triggered mandatory\n6\n\nrecusal. Actual bias did not need to be proved; justices had to avoid even the appearance of bias.\n\nFor our purposes, Justice Clark warrants scrutiny because Rehnquist\xe2\x80\x99s memorandum drew on\npast cases when there was perceived bias, but it neglected to consider any instances when Clark\nchose to disqualify himself. For example, Rehnquist mentioned Justices Murphy\xe2\x80\x99s and Jackson\xe2\x80\x99s\nbehaviors in Schneiderman v. United States, 320 U.S. 118 (1943); Chief Justice Stone\xe2\x80\x99s congressional\ntestimony in 1943; Justice Black\xe2\x80\x99s participation in United States v. Darby, 312 U.S. 100 (1941) and\nJewell Ridge Coal v. United Mine Workers, 325 U.S. 161 (1945); Justice Frankfurter\xe2\x80\x99s participation\nin United States v. Hutcheson, 312 U.S. 219 (1941); and Justice Hughes\xe2\x80\x99s participation in Adkins v.\nChildren\xe2\x80\x99s Hospital, 261 U.S. 525 (1922) and West Coast Hotel v. Parrish, 300 U.S. 379 (1937). However,\nRehnquist disregarded those instances when Clark participated in questionable cases\xe2\x80\x94cases that\npresented the appearance of partiality, which could have substantially aided in his Laird defense.\nInstead of citing post-1948 judicial behavior, Rehnquist relied on pre-1948 instances to contend\nthat \xe2\x80\x9cnone of the former Justices of this Court since 1911 have followed a practice of disqualifying\n\n5. 409 U.S. 824 (1972).\n6. 28 U.S.C. \xc2\xa7 455, \xe2\x80\x9cDisqualification of Justice.\xe2\x80\x9d\nAppearance of Justice | 225\n\n\x0cthemselves in cases involving points of law with respect to which they had expressed an opinion\n7\n\nor formulated policy prior to ascending to the bench\xe2\x80\x9d.\n\nSuch a claim appeared anachronistic, as there was no pre-1948 congressional mandate for\nSupreme Court recusal. MacKenzie considered Rehnquist\xe2\x80\x99s defense \xe2\x80\x9cirrelevant\xe2\x80\x9d (1974, 209); others\nhave called it \xe2\x80\x9cmisplaced\xe2\x80\x9d (\xe2\x80\x9cJustice Rehnquist\xe2\x80\x99s Decision to Participate,\xe2\x80\x9d 1973, 123). Flamm observed\nthat Rehnquist\xe2\x80\x99s examples amounted to no more than \xe2\x80\x9chistorical relics from a time when society\xe2\x80\x99s\nattitudes toward judicial bias were more relaxed\xe2\x80\x9d (2007, 916).\nTherefore, this study will review Justice Clark\xe2\x80\x99s recusal decisions, paying particular attention\nto those instances when he participated in questionable decisions. Although Beamer examined\n\xe2\x80\x9ccontroversial and overlooked recusal affairs to prove that a consistent flaw exists,\xe2\x80\x9d she did not\nconsider Clark or specifically reference former attorneys general (2012, 1). As the first justice\nappointed following the enactment of the 1948 recusal statute, Clark\xe2\x80\x99s entire Court service was\nencompassed by the law until the 1974 revisions. His recusal decisions may shed light on the\nefficacy of the 1974 amendments and the current debate over further reforms.\nSupreme Court recusal, although understudied and often misunderstood, has become, as Virelli\nput it, one of \xe2\x80\x9cthe most high profile and controversial issues involving the Court\xe2\x80\x9d (2012, 137).\nIn another context, Virelli observed, \xe2\x80\x9cSupreme Court recusal . . . has been a regular topic of\npassionate debate since the Founding\xe2\x80\x9d and today has become one of the Court\xe2\x80\x99s \xe2\x80\x9cmost hotly\ndebated issues\xe2\x80\x9d (2011, 1182 and 1185). Over the past four decades, concern about Supreme Court\ndisqualification has become more urgent and widespread, leading to a number of news stories\nand scholarly articles on the topic, and two recent books have closely examined it to evaluate the\nmerits of proposed reforms (Hume 2017; Virelli 2016). In a review of Hume\xe2\x80\x99s book, Black observed\nthat Supreme Court recusal \xe2\x80\x9clands in that scholarly sweet spot of being really important but\nwoefully understudied\xe2\x80\x9d (2018). Justice Clark\xe2\x80\x99s recusal behavior deserves a closer look. The one\ntime that I found Clark\xe2\x80\x99s behavior questioned was when he participated in a relatively obscure\ncase, Madsen v. Kinsella, 343 U.S. 341 (1952), involving the trial of an American citizen by military\ncommission (Kastenberg and Merriam 2016, 166\xe2\x80\x9367). In addition, Hume mentioned only that Clark\nhad to frequently disqualify himself because of his former position as the attorney general (2017).\n\nAn Attorney General Becomes Associate Justice\nTom Clark served as the US attorney general during the postwar period of the Truman\n\n7. 409 U.S. 824 at 831 (1972).\n226 | Appearance of Justice\n\n\x0cadministration, from 1945 to 1949. During that time, he dealt with a number of issues that\neventually made their way to the Supreme Court. As a result, in his first term he sat out of nearly\none hundred cases, of which the Court decided fifteen on the merits. He found this aggravating, as\nlitigants were entitled to a full Court, he believed, and \xe2\x80\x9cthere were quite a few affirmances by an\nevenly divided Court\xe2\x80\x9d (T. Clark 1969b). How did Clark make his decision to disqualify himself from\nthese cases? Principally, he relied on the advice of Court colleagues, as the new federal statute\nwas still untested. Shortly after starting his judicial service, he requested guidance from Solicitor\nGeneral Philip Perlman, who advised Clark to consult with Justice Jackson and the law clerk to the\nrecently deceased Justice Murphy, whom Clark replaced (Perlman 1949). Section 455 of the Judicial\nCode read, in its entirety,\nAny justice or judge of the United States shall disqualify himself in any case in which he has a\nsubstantial interest, has been of counsel, is or has been a material witness, or is so related to or\nconnected with any party or his attorney as to render it improper, in his opinion, for him to sit on\n8\n\nthe trial, appeal, or other proceeding therein.\n\nClark felt ethically bound to disqualify himself from cases connected to his service as attorney\ngeneral, though strictly speaking, the law did not require recusal for past government service.\nTypically, an attorney general\xe2\x80\x99s connection to a case before the Court was nominal, since as\nFrank observed, the attorney general had \xe2\x80\x9conly theoretical responsibility for minor cases in their\ndepartments\xe2\x80\x9d (1947, 624). Chief Justice Harlan Stone similarly suggested that the standard for\ndisqualification should have \xe2\x80\x9csomething more to do with the case than the merely pro forma\nrelations which an Attorney General often has with cases in the Department of Justice\xe2\x80\x9d (Frank\n1970, 48). Whatever his reasons for disqualification, there was no obligation for Clark to explain his\ndecision, just as there were no means of enforcing his recusal. According to Lubet, \xe2\x80\x9cBy tradition,\nmost Supreme Court Justices do not announce their reasons for recusal. It is therefore impossible\nto know with any precision what the bases were for the great majority of these disqualifications\xe2\x80\x9d\n(1996, 659; see also Bassett 2005, 50; and Flamm 2007, 915). During his entire Court service, Clark\ndecided for himself whether his \xe2\x80\x9csubstantial interest\xe2\x80\x9d in a case warranted his recusal. As Frank\nsummarized, for the next quarter of a century, justices generally did not disqualify themselves\nunless (a) they had a dollar interest, (b) they were related to a party or to counsel, (c) their former\nlaw office was involved, or (d) when serving in government, \xe2\x80\x9cthey dealt with the precise matter\xe2\x80\x9d\nbefore the Court (1970, 50).\nClark\xe2\x80\x99s service as the attorney general offered substantial reasons for disqualification, and twothirds of his recusals occurred during his first four terms. In total, he sat out of seventy-three\ncases decided on the merits (see the appendix). So far as the record shows, none of those were\ndue to illness or injury, but during the first week of January 1953, he was in Texas attending his\n\n8. Ch. 646, \xc2\xa7 455, 62 Stat. 908, June 25, 1948.\nAppearance of Justice | 227\n\n\x0c9\n\nmother\xe2\x80\x99s funeral and missed oral arguments in five cases decided on the merit. Most often, he\n10\n\ndisqualified himself from antitrust decisions\n\n11\n\nand cases involving suspected Communists. He\n\nalso sat out of several alien property claims. In 1942, President Roosevelt had established the alien\nproperty custodian by Executive Order 9095, but in 1946, President Truman terminated the office\n12\n\nby Executive Order 9788 and transferred its authority to the attorney general. In addition, Clark\n13\n\nmissed deportation or denaturalization cases because, as part of a 1940 reorganization plan,\n\nthe powers and functions of the Immigration and Naturalization Service were transferred from\n14\n\nthe Labor Department to the Justice Department.\n\nIn some instances, Clark disqualified himself\n\nbecause he had argued before the Court as the attorney general on the very issue before the\nCourt. In other instances, he had publicly supported Truman administration policies. Several of\nthese issues will be examined more closely, paying particular attention to cases in which Clark\nparticipated when there was ample reason for him to recuse himself.\nHis inconsistency in this regard should not impugn his character, however. According to Frank,\n\xe2\x80\x9cIn repeated instances, Attorneys General rise to the Supreme Court, and they must then decide\nwhether they can sit on cases which were in the Department when they themselves were there,\xe2\x80\x9d\nbut Clark was \xe2\x80\x9cimmensely sensitive to the value of high ethical appearance as well as substance\xe2\x80\x9d\n(1970, 47 and 48). That he disqualified himself from seventy-three decisions on the merits before\n\n9. May v. Anderson, 345 U.S. 528 (1953); Lauritzen v. Larsen, 345 U.S. 571 (1953); Wells v. Simonds, 345\nU.S. 514 (1953); Bode v. Barrett, 344 U.S. 583 (1953); and B&O Ry v. United States, 345 U.S. 146 (1953).\n10. United States v. Yellow Cab, 338 U.S. 338 (1949); United States v. Real Estate Board, 339 U.S. 485\n(1950); Bowman Dairy v. United States, 341 U.S. 214 (1951); Timken v. United States, 341 U.S. 593 (1951);\nLorain Journal v. United States, 342 U.S. 143 (1951); Far East Conf v. United States, 342 U.S. 570 (1952);\nUnited States v. Oregon Med. Soc., 343 U.S. 326 (1952); Besser Manufacturing v. United States, 343\nU.S. 444 (1952); and United States Gypsum v. National Gypsum, 352 U.S. 457 (1957).\n11. United States v. Fleischman, 339 U.S. 349 (1950); United States v. Bryan, 339 U.S. 323 (1950); Blau v.\nUnited States, 340 U.S. 159 (1950); Blau v. United States, 340 U.S. 332 (1951); Rogers v. United States,\n340 U.S. 367 (1951); and Service v. Dulles, 354 U.S. 363 (1957).\n12. McGrath v. Manufacture Trust, 338 U.S. 241 (1949); Zittman v. McGrath, 341 U.S. 446 (1951);\nGuessefeldt v. McGrath, 342 U.S. 308 (1952); Kaufman v. Societe International, 343 U.S. 156 (1952);\nUebersee Finanz v. McGrath, 343 U.S. 205 (1952); Orvis v. Brownell, 345 U.S. 183 (1953); Brownell v.\nChase National, 352 U.S. 36 (1956); and Societe Internationale v. Rogers, 357 U.S. 197 (1958).\n13. Reorganization Plan No. V of 1940, 5 F.R. 2223, 54 Stat. 1238, June 15, 1940.\n14. Eichenlaub v. Shaughnessy, 338 U.S. 521 (1950); Wong Yang Sung v. McGrath, 339 U.S. 33 (1950);\nMcGrath v. Kristensen, 340 U.S. 162 (1950); Harisiades v. Shaughnessy, 342 U.S. 580 (1952); United\nStates v. Spector, 343 U.S. 169 (1952); Bindczyck v. Finucane, 342 U.S. 76 (1951); Ackerman v. United\nStates, 340 U.S. 193 (1950); Knauff v. Shaughnessy, 338 U.S. 537 (1950); and Bridges v. United States,\n346 U.S. 209 (1953).\n228 | Appearance of Justice\n\n\x0cCongress imposed more objective recusal standards speaks of his integrity. According to Hume,\nClark\xe2\x80\x99s recusal rate was twice the average of all justices from the modern era and well above the\nvast majority (2014, figure 1; 2017, figure 2.1). In fact, Clark was so committed to the appearance of\njustice that he retired from the Court principally because his son, Ramsey, became the US attorney\ngeneral. There was no legal requirement for him to do so, just as there was no legal requirement for\nhim to disqualify himself from cases handled by Ramsey at the Justice Department. Nevertheless,\nClark retired to make room for his son\xe2\x80\x99s advancement, writing to one well-wisher, \xe2\x80\x9cI believe it\nwould be best for me to retire. Litigants have enough problems without having a father-son\npsychology to face. And while there is no actual conflict the potential is there, and the appearance\n15\n\nof justice is as important and effective as the real thing\xe2\x80\x9d (1967).\n\nRamsey Clark at the Justice Department\nClark\xe2\x80\x99s retirement notwithstanding, his recusal record with respect to his son, Ramsey, was\nhaphazard at best. Eight years before Ramsey became the attorney general, he had argued a\ncase at the Supreme Court involving Safeway Stores, Safeway Store v. Oklahoma Retail Grocers,\n360 U.S. 334 (1959), and his father disqualified himself. Then after Ramsey was confirmed as the\nattorney general, Clark disqualified himself from Honda v. Clark, 386 U.S. 484 (1967), an appeal\nwhere Ramsey was named as a party in an alien property case. However, these were the only two\ninstances of Clark recusing himself due to his son\xe2\x80\x99s direct involvement in a case before the Court.\nDuring the four years that Ramsey served as the assistant attorney general of the Justice\nDepartment\xe2\x80\x99s Lands Division and then two years as the deputy attorney general and the acting\nattorney general, his father did not disqualify himself from cases brought by the Justice\nDepartment. \xe2\x80\x9cThe cases came to the Supreme Court that I had participated in in the lower courts,\nand had actually been involved in formulating the position taken by the government,\xe2\x80\x9d Ramsey told\nan interviewer. \xe2\x80\x9cDad always sat on the cases; he never, as far as I know, disqualified himself in any\ncases, because I happen to have been in it\xe2\x80\x9d (1968). Ironically, Justice Clark chose to retire when his\nson became the attorney general to avoid the appearance of a conflict of interest, yet when his son\nheaded the Lands Division, the question of a conflict of interest hardly arose. \xe2\x80\x9cI don\xe2\x80\x99t know why it\ndidn\xe2\x80\x99t,\xe2\x80\x9d Ramsey recalled. He continued,\nIn fact, your proximity to actual cases in the Supreme Court is much greater as Assistant Attorney\n\n15. A couple years after his retirement, Clark expressed a similar sentiment. \xe2\x80\x9cYou know there\xe2\x80\x99s more to\njustice than just trying cases and dispositions and judgments,\xe2\x80\x9d he said. \xe2\x80\x9cThe appearance of justice, I\nthink, is more important than justice itself\xe2\x80\x9d (1969a)\nAppearance of Justice | 229\n\n\x0cGeneral than as Attorney General, because they are much closer to specifics and to individual\ncases. . . . Actually, as Deputy I was much further away from the work of the Supreme Court than\nI had been as Assistant Attorney General in the Lands Division where we would have six or eight\ncases before the Court in a single term (1968).\nFrank acknowledged that \xe2\x80\x9cthere was in fact no functional difference between the son\xe2\x80\x99s relationship\nto the Supreme Court as Deputy Attorney General or, certainly, as Acting Attorney General, a post\nhe held for a long time, and his final position as Attorney General\xe2\x80\x9d (1970, 47). Of course, Tom and\nRamsey Clark\xe2\x80\x99s situation was without precedence. The only other time that a similar father-son\nrelationship created a potential conflict of interest was in 1930, when Charles Evans Hughes Jr.\nresigned his position as the solicitor general because his father became the chief justice of the\nUnited States.\n\nFormer Law Clerks\nOther than his son appearing before the Court, the next closest \xe2\x80\x9cfamily\xe2\x80\x9d to Clark who posed\nthe potential for a conflict of interest were his former law clerks. Given that his Court service\nextended for eighteen terms, it was not unusual that some of his former clerks worked on cases\nwhere he had to decide whether to participate. Of course, the prevailing recusal statute said\nnothing with respect to former law clerks, so Clark\xe2\x80\x99s decisions as to whether he was \xe2\x80\x9cso related to\nor connected with any party or his attorney as to render it improper\xe2\x80\x9d for him to participate were\nleft to his discretion. As a result, his decisions appeared indiscriminate, especially since some of\nthem changed case outcomes.\nClark twice recused himself when his fourth-term clerk Frederick Rowe presented cases to the\nCourt. He sat out of a case involving illegal oil pipeline rebates where Rowe prepared the briefs\nfor one of the pipeline companies, United States v. Atlantic Refining, 360 U.S. 19 (1959), and he\nsat out of a case involving public utilities regulation that Rowe argued on appeal, Commercial\nCommunications v. Public Utilities Commission, 359 U.S. 341 (1959). In his final term, Clark also\ndisqualified himself from three antitrust cases when his second-term clerk Donald Turner\nappeared before the Court as the assistant attorney general of the Antitrust Division. Turner had\nworked on the briefs in two of the cases, United States v. Sealy, 388 U.S. 350 (1967) and United\nStates v. Arnold, Schwinn, 388 U.S. 365 (1967) and presented the government\xe2\x80\x99s arguments in the\nthird, United States v. 1st City Nat Bank, 386 U.S. 361 (1967). One of Justice William Brennan\xe2\x80\x99s former\nlaw clerks, Richard Posner, also assisted on the briefs and argued before the Court; however,\nBrennan did not recuse himself.\nClark also participated in cases when his former law clerks appeared before the Court. For\n230 | Appearance of Justice\n\n\x0cexample, he participated in Bushnell v. Ellis, 366 U.S. 418 (1961), argued by his first-term clerk\nPercy Don Williams, who represented an indigent defendant; Escobedo v. Illinois, 378 U.S. 478\n(1964), where his fourth-term clerk Bernard Weisberg argued as an amicus curiae for the American\nCivil Liberties Union; and United States v. John Hancock Mutual Insurance, 364 U.S. 301 (1960),\nargued by his eighth-term clerk Harry Hobson. Although he had disqualified himself from two\nof Frederick Rowe\xe2\x80\x99s cases, he also participated in cases presented by Rowe, and sometimes his\nparticipation determined the outcome. For instance, Clark provided the fifth vote in Federal Trade\nCommission v. Henry Broch, 363 U.S. 166 (1960), an antitrust decision adverse to Rowe\xe2\x80\x99s corporate\nclient. Two years later, Rowe was back at the Court after the US Court of Appeals modified a\ncease and desist order on remand, and Clark participated in Federal Trade Commission v. Henry\nBroch, 368 U.S. 360 (1962), but Rowe lost a second time. In a habeas corpus petition where\nRowe represented an indigent defendant, Payne v. Madigan, 366 U.S. 761 (1961), Clark participated,\nbut instead of providing the fifth vote, his participation created an evenly divided Court due\nto Justice Felix Frankfurter\xe2\x80\x99s nonparticipation, and the Court affirmed the lower court\xe2\x80\x99s ruling.\nConsidering the nature of the appeal, that may have been a strategic move, as Clark was regarded\ngenerally as tough on criminal defendants, and affirmance meant that the defendant remained\nincarcerated for the prescribed sentence. A similar instance occurred when Clark participated in\nUnited States v. Huck Mfg., 382 U.S. 197 (1965), argued by his second-term clerk Donald Turner, and\nClark\xe2\x80\x99s participation led to affirmance by an evenly divided Court, as Justice Abe Fortas did not\nparticipate.\nWhen his former law clerk Assistant Attorney General Donald Turner assisted in preparing the\nbrief in Baltimore & Ohio v. United States, 386 U.S. 372 (1967), Clark\xe2\x80\x99s participation determined\nthe outcome. The case involved an order of the Interstate Commerce Commission, which had\npermitted a proposed railway merger. In his majority opinion, Clark reversed the lower court,\nthereby precluding the proposed merger. Had he disqualified himself, then an evenly divided\nCourt would have affirmed the lower court\xe2\x80\x99s decision. Of course, Clark may have participated only\nbecause Justice Brennan did, even though Brennan\xe2\x80\x99s former clerk Richard Posner had also assisted\non the brief.\nBy participating in a case involving an Interstate Commerce Commission (ICC ) order and a\nproposed railway merger, particularly one involving his former law clerk, Clark appeared\ninconsistent. Years earlier, he had disqualified himself from St. Joe Paper v. Atlantic Coast Line\nRailroad, 347 U.S. 298 (1954), which involved an ICC plan to reorganize a bankrupt railway by\nmerging it with another railway, and in a split decision, the Court forestalled the proposed merger\nbecause Justice Hugo Black also sat out of the case. Clark\xe2\x80\x99s decision to participate in Baltimore &\nOhio may have been strategic, or it may have been simply waiting long enough. After all, Turner\nhad been his law clerk more than fifteen years beforehand, and Clark\xe2\x80\x99s recusal in St. Joe Paper was\nmore than a dozen years previously. As he once told an interviewer, \xe2\x80\x9cIndeed, I sat in cases involving\nSafeway stores even though I represented them in 1937. I think you can go to ridiculous lengths\nAppearance of Justice | 231\n\n\x0cin abstention\xe2\x80\x9d (1973b). However, in one antitrust case, Safeway Stores v. Vance, 355 U.S. 389 (1958)\nand its companion, Nashville Milk v. Carnation, 355 U.S. 373 (1958), decided twenty years after his\npersonal association with Safeway had ended, Clark\xe2\x80\x99s participation determined the outcome.\n\nAntitrust Cases\nAntitrust cases represented the greatest number of cases where Clark disqualified himself, which\nwas unsurprising given that he had served for several years as a lawyer in the Justice Department\xe2\x80\x99s\nAntitrust Division and for a short time had headed the division. As the attorney general, he\nreportedly had \xe2\x80\x9cstarted more antitrust suits than any previous Attorney General,\xe2\x80\x9d and he was\nproud of his record for filing \xe2\x80\x9calmost as many [antitrust] suits as we formerly had in the history\nof the United States\xe2\x80\x9d (\xe2\x80\x9cEnforcing the Antitrust Laws\xe2\x80\x9d; see also \xe2\x80\x9cClark, Cautious Trust Buster\xe2\x80\x9d). At\nthe Court, he disqualified himself from cases involving the Du Pont Corporation because as the\nattorney general, he had made high-profile attacks against the industrial giant. For example, he\nsat out of United States v. Du Pont, 351 U.S. 377 (1956); United States v. Du Pont, 353 U.S. 586 (1957);\nand United States v. Du Pont, 366 U.S. 316 (1961). He also recused himself from a number of movie\nindustry cases because he had argued before the Court in a major film distribution monopoly case,\nUnited States v. Paramount Pictures, 334 U.S. 131 (1948), which led to similar recusals in Sutphen\nEstates v. United States, 342 U.S. 19 (1951); Hughes v. United States, 342 U.S. 353 (1952); and Partmar\nv. Paramount, 347 U.S. 89 (1954). As a result, he necessarily sat out of other antitrust cases that\nrelied on the principles announced in Paramount Pictures, such as United States v. Gypsum, 340\nU.S. 76 (1950) and United States v. New Wrinkle, 342 U.S. 371 (1952).\nThat Clark disqualified himself from so many antitrust cases, particularly ones involving the movie\nindustry, did not necessarily mean that he had to recuse himself from all of them. For example,\nwhen the Court considered the \xe2\x80\x9cscope and effect\xe2\x80\x9d of Paramount Pictures in Theatre Enterprises\nv. Paramount, 346 U.S. 537 (1954), Clark wrote the majority opinion and found the petitioners\xe2\x80\x99\nallegations \xe2\x80\x9cuntenable\xe2\x80\x9d and any relevance to Paramount Pictures \xe2\x80\x9cslight.\xe2\x80\x9d Having had experience\nwith\xe2\x80\x94even having expressed an opinion on\xe2\x80\x94an issue before the Court did not automatically\ndisqualify a justice. As Justice Rehnquist argued in his defense for participating in Laird,\nIt would be not merely unusual, but extraordinary, if they had not at least given opinions as to\nconstitutional issues in their previous legal careers. Proof that a Justice\xe2\x80\x99s mind at the time he\njoined the Court was a complete tabula rasa in the area of constitutional adjudication would be\n16\n\nevidence of lack of qualification, not lack of bias.\n\n16. 409 U.S. 824 at 835 (1972).\n232 | Appearance of Justice\n\n\x0cHowever, Clark participated in two antitrust decisions so closely related to Paramount Pictures\nthat his impartiality appeared questionable. The first involved an alleged antitrust violation in\nthe promotion of professional boxing. In International Boxing Club v. United States, 358 U.S. 242\n(1959), Clark wrote the five-person majority opinion. He had argued in Paramount Pictures to end\na movie industry monopoly, and in International Boxing Club he effectively ended a professional\nboxing monopoly. Most significantly, in his International Boxing Club opinion he made frequent\nreferences to significant holdings from Paramount Pictures, at one point announcing, \xe2\x80\x9cThe case\n17\n\nwhich most squarely governs this case is United States v. Paramount Pictures.\xe2\x80\x9d\n\nClark\xe2\x80\x99s participation in International Boxing Club had two plausible explanations, which may\ntemper the impression of partiality. When the case first appeared at the Court, United States v.\nInternational Boxing Club, 348 U.S. 236 (1955), it did not present the antitrust questions controlled\nby Paramount Pictures but instead questioned whether professional boxing could receive the\nsame antitrust exemption as professional baseball. Chief Justice Earl Warren ruled that boxing\nwas different from baseball for the purposes of interstate commerce and sent the case back to\nthe district court, which subsequently found an antitrust violation. Clark had participated in the\nfirst International Boxing Club decision, which was unquestionably appropriate, so when the case\nreturned to the Court as an antitrust violation, it may have seemed reasonable to participate\na second time. There was also the length of time involved, as Clark\xe2\x80\x99s arguments in Paramount\nPictures were a decade in the past.\nThe second antitrust case where Clark\xe2\x80\x99s participation should have raised questions about his\nimpartiality involved a named defendant that he had prosecuted as the attorney general. One\nof the original defendants in Paramount Pictures was Loew\xe2\x80\x99s, and Clark recused himself from\nUnited States v. Loew\xe2\x80\x99s, 339 U.S. 974 (1950), an appeal of the Paramount Pictures decision. A dozen\nyears later, Loew\xe2\x80\x99s was back before the Court in a case questioning whether block booking of\ncopyrighted feature motion pictures for television violated antitrust law. Although Loew\xe2\x80\x99s new\nappeal involved television broadcasting instead of movie theater film distribution, the connection\nto Paramount Pictures was unmistakable.\nRelying on Paramount Pictures, Justice Arthur Goldberg ruled that \xe2\x80\x9ctying agreements,\xe2\x80\x9d no matter\nthe medium, were illegal. \xe2\x80\x9cAppellants attempt to distinguish the Paramount decision in its relation\nto the present facts,\xe2\x80\x9d Goldberg announced in United States v. Loew\xe2\x80\x99s, 371 U.S. 38 (1962), but\n\xe2\x80\x9cappellants cannot escape the applicability of Paramount Pictures.\xe2\x80\x9d The degree to which\nParamount Pictures controlled the new television medium was indubitable:\nThe principles underlying our Paramount Pictures decision have general application to tying\narrangements involving copyrighted products, and govern here. . . . Enforced block booking of\n\n17. 358 U.S. 242 at 251 (1959).\nAppearance of Justice | 233\n\n\x0cfilms is a vice in both the motion picture and television industries, and that the sin is more serious\n(in dollar amount) in one than the other does not expiate the guilt for either. Appellants\xe2\x80\x99 block\n18\n\nbooked contracts are covered by the flat holding in Paramount Pictures.\n\nOn previous occasions, Clark had disqualified himself from cases that relied on principles\nannounced in Paramount Pictures, such as No Pac Ry v. United States, 356 U.S. 1 (1958), when the\nCourt considered whether tying agreements were unreasonable restraints on trade. However, this\ntime he participated, and the only reasonable explanation for his participation was that enough\ntime had passed.\n\nCommunist-Inspired Decisions\nClark served as the attorney general during the immediate postwar period, when Communist or\nsubversive infiltration was keenly feared. As part of President Truman\xe2\x80\x99s federal loyalty program,\nClark had made public the infamous \xe2\x80\x9cAttorney General\xe2\x80\x99s List of Subversive Organizations,\xe2\x80\x9d and\nbecause he was the original named respondent, he recused himself when the attorney general\xe2\x80\x99s\nlist was challenged in Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951), which\nwas the appeal of Joint Anti-Fascist Refugee Committee v. Clark, 177 F. 2d 79 (D.C. Cir. 1949). He\nalso disqualified himself from Smith Act prosecutions, such as Dennis v. United States, 341 U.S. 494\n(1951), which led to the convictions of American Communist Party leaders. The Smith Act punished\nadvocating the violent overthrow of government. Clark also sat out of Dennis v. United States, 339\nU.S. 162 (1950), which challenged the trial jury\xe2\x80\x99s impartiality when the defendant refused to appear\nbefore the House Un-American Activities Committee; Sacher v. United States, 343 U.S. 1 (1952),\nwhich involved contempt charges against Dennis lawyers; and In re Isserman, 345 U.S. 286 (1953),\nwhich considered disbarment of Dennis lawyers.\nOne of the more significant Communist-inspired cases where Clark recused himself was American\nCommunications Association v. Douds, 339 U.S. 382 (1950), which also became the basis for one of\nhis more questionable participation decisions in a case that appeared to overturn Douds. During\nhis first term, Clark sat out of Douds, which challenged the non-Communist oath for union officers\nin the Taft-Hartley Act, a law that Congress had passed over President Truman\xe2\x80\x99s veto and that\nAttorney General Clark had sought to repeal. In the Court\xe2\x80\x99s majority opinion, Chief Justice Fred\nVinson upheld Taft-Hartley\xe2\x80\x99s non-Communist oath, concluding that it was not a bill of attainder.\nHad Clark participated in Douds, undoubtedly he would have supported Vinson\xe2\x80\x99s majority position,\nas Clark\xe2\x80\x99s anti-Communist views were well established\xe2\x80\x94his opposition to Taft-Hartley had more\n\n18. 371 U.S. 38 at 50 (1962).\n234 | Appearance of Justice\n\n\x0cto do with his views on labor\xe2\x80\x94and during his first term, Clark reflectively voted alongside Vinson\nin 98 percent of cases decided on the merits.\nFifteen years later, the Court considered United States v. Brown, 381 U.S. 437 (1965), a case that\nchallenged a law making it a crime for Communist Party members to serve as union officers\nor employees. The new law, which had replaced that portion of Taft-Hartley requiring a nonCommunist oath, was enacted a decade after Clark joined the Court, and Brown became the first\ntime that the Court reviewed a conviction under it. Speaking for a five-person majority, Chief\nJustice Earl Warren invalidated the law principally because it was a bill of attainder, and Clark\njoined three other dissenters. Although Brown did not consider the First Amendment freedom of\nassociation as had Douds, the similarities between the two cases were unmistakable.\nThe purpose of the two laws was the same. According to Chief Justice Vinson, the non-Communist\noath of Taft-Hartley was intended to \xe2\x80\x9cprevent political strikes,\xe2\x80\x9d and Chief Justice Warren held that\nits replacement was to minimize \xe2\x80\x9cthe danger of political strikes.\xe2\x80\x9d In fact, Warren conceded that\nthe new law \xe2\x80\x9cwas designed to accomplish the same purpose\xe2\x80\x9d as Taft-Hartley \xe2\x80\x9cbut in a more direct\n19\n\n20\n\nand effective way\xe2\x80\x9d , while the four Brown dissenters considered Douds \xe2\x80\x9cobviously overruled.\xe2\x80\x9d\n\nDissenting along with Clark were Justices Byron White, John Marshall Harlan, and Potter Stewart.\nNot incidentally, Victor Rabinowitz and Leonard Boudin appeared as counsel in both cases. They\nrepresented the appellants in Douds, where they lost the decision, and they returned in Brown\nwith amicus briefs, where their side prevailed.\nClark\xe2\x80\x99s participation in Brown seemed suspicious because Brown appeared to overrule a case\nwhere he had recused himself. As with most of his questionable decisions, enough time had\npassed to give the appearance of impartiality, and this time Clark\xe2\x80\x99s participation did not change\nthe outcome, so it made little difference. Furthermore, Clark had changed. He was no longer a\nfreshman justice who uncritically followed the chief justice; he was now fourth in seniority on the\nhistorically activist Warren Court. In fact, only two other justices\xe2\x80\x94Black and Douglas\xe2\x80\x94who had\nserved with him in Douds remained on the Court for Brown. Black, who had dissented in Douds,\njoined the majority in Brown. Douglas, on the other hand, had missed Douds and half of Clark\xe2\x80\x99s\nfirst term due to serious injuries he suffered from falling off a horse that then fell on him, but\nhe also joined the majority in Brown. The country was also different, as concern with Communist\ninfiltration had waned considerably since the demise of McCarthyism, and the Court reflected this\nshift in perspective.\nBy the 1960s, public criticism of the Court was directed at its rulings, not at recusal decisions.\nFor example, the Court faced harsh public criticism following its school prayer decisions, Engel v.\n\n19. 381 U.S. 437 at 439n2 (1965).\n20. 381 U.S. 437 at 465 (1965).\nAppearance of Justice | 235\n\n\x0cVitale, 370 U.S. 421 (1962) and Abington v, Schempp, 374 U.S. 203 (1963), and its criminal prosecution\ndecisions, such as Mallory v. United States, 354 U.S. 449 (1957) and Escobedo v. Illinois, 378 U.S.\n478 (1964). Just as important, Justice Arthur Goldberg had as much reason to disqualify himself\nfrom Brown as did Clark. Fifteen years earlier, Goldberg had worked on the briefs for the Congress\nof Industrial Organizations (CIO) in a case consolidated with the Douds ruling, and he had filed\namicus curiae briefs for the CIO in the final Douds decision. Yet Goldberg participated in Brown,\nwhich may have given Clark reason for doing so. While Goldberg provided the crucial fifth vote to\noverturn a law that the Brown majority argued was \xe2\x80\x9cnot necessarily controlled by Douds,\xe2\x80\x9d\n\n21\n\nClark\n\nand the dissenting justices asserted that Congress was now forbidden \xe2\x80\x9cto do precisely what was\n22\n\nvalidated in Douds.\xe2\x80\x9d\n\nThe Submerged Lands Act\nCommonly referred to as the \xe2\x80\x9ctidelands\xe2\x80\x9d controversy, the states and federal government had a\nlong-standing dispute over who controlled offshore oil, gas, and mineral rights. As the attorney\ngeneral, Clark had argued in United States v. California, 332 U.S. 19 (1947) that the federal\ngovernment should have \xe2\x80\x9cparamount rights in and power over\xe2\x80\x9d California\xe2\x80\x99s three-mile belt along\nthe coast. After his successful argument defending national sovereignty, Clark tried to forestall\ncongressional efforts to restore state authority, writing, \xe2\x80\x9cThe United States should not by\nlegislative action transfer to the respective coastal states dominion and control over the lands\nand resources underlying the ocean areas adjacent to our shores but should retain and administer\nthese valuable national assets for the benefit of all\xe2\x80\x9d (1948). Nonetheless, Congress tried to restore\nstate sovereignty over the tidelands, once while Clark was still the attorney general and again after\nhe joined the Court, and both times President Truman vetoed the measures.\nIt was unsurprising, then, when Clark disqualified himself during his first term from a pair of\ncases raising the issue of state sovereignty. Other states, such as Louisiana and Texas, had joined\nCalifornia in urging state sovereignty, but the Court continued to rule against them in United\nStates v. Louisiana, 339 U.S. 699 (1950) and United States v. Texas, 339 U.S. 707 (1950). The\nCourt found no reason to treat Louisiana any differently than California, even though Texas\xe2\x80\x99s\nunique status as an independent republic caused some disagreement among the justices. Texans\nwere especially furious with the Court\xe2\x80\x99s decisions\xe2\x80\x94in part because Attorney General Clark had\npreviously indicated in a press statement that Texas was different: \xe2\x80\x9cAs a Republic it owned all of the\n\n21. 381 U.S. 437 at 457 (1965).\n22. 381 U.S. 437 at 465 (1965).\n236 | Appearance of Justice\n\n\x0clands within its boundaries, including the marginal sea commonly called tidelands. This area was\nunder the sovereignty of Texas during the Republic and was retained by it under the provisions of\nthe Act of Admission\xe2\x80\x9d (Daniel 2010).\nFollowing these Supreme Court losses, several additional states not party to the original disputes\nrenewed court challenges after President Dwight D. Eisenhower signed the 1953 Submerged\nLands Act, which granted to coastal states title to submerged lands and natural resources within\ntheir traditional boundaries, limited to three miles.\n\n23\n\nWhen the Court considered these new\n\nstate challenges, Clark participated, even though as the attorney general he had argued for and\npublicly defended national sovereignty. Instead of recusing himself, he joined the Court\xe2\x80\x99s per\ncuriam opinion in Alabama v. Texas, 347 U.S. 272 (1954) to uphold the Submerged Lands Act on\nthe constitutional ground that Congress could dispose of territory under its control any way it\nwanted. Because California was involved, the chief justice and former California governor Earl\nWarren did not participate.\nThe most striking aspect of Clark\xe2\x80\x99s participation in the Submerged Lands Act decision was not\nthe timeframe involved\xe2\x80\x94only four years had elapsed from his recusal in tidelands cases to his\nparticipation in one\xe2\x80\x94but his reversal of position. Given that he had successfully argued in favor\nof and had publicly supported national sovereignty, it was surprising that he voted to uphold a\nlaw granting state sovereignty, effectively reversing the Court\xe2\x80\x99s prior decisions. By reversing his\nown position as the attorney general, Clark gave the impression of being unbiased and probably\ndeflected attention away from whether he should have disqualified himself. However, in three\nsubsequent tidelands cases, United States v. Louisiana, 363 U.S. 1 (1960); United States v. Florida,\n363 U.S. 121 (1960); and United States v. California, 381 U.S. 139 (1965), Clark continued to recuse\nhimself.\n\nThe Steel Seizure Case\nThe one time that Clark\xe2\x80\x99s participation in a case publicly raised concern was during the highprofile incident when President Truman ordered his secretary of commerce, Charles Sawyer,\nto seize the nation\xe2\x80\x99s steel mills. By that time, the Korean War was entering its third year, and\na threatened strike of steelworkers potentially endangered America\xe2\x80\x99s forces overseas.\nContemporary commentators, such as syndicated columnist Drew Pearson, expected Clark to\nsupport the president\xe2\x80\x99s action because he had made statements to that effect as the attorney\n\n23. The actual tidelands, which lie between the high-tide mark and the mean low tide, were not involved\n(\xe2\x80\x9cSubmerged Lands Act\xe2\x80\x9d; see also \xe2\x80\x9cThe Tidelands Oil Controversy,\xe2\x80\x9d 116n1).\nAppearance of Justice | 237\n\n\x0cgeneral. Pearson predicted that Clark would vote in favor of the president (1952), and Truman\nprobably counted on Clark\xe2\x80\x99s assent. According to Marcus, \xe2\x80\x9cEveryone anticipated that Clark would\nvote for the President\xe2\x80\x9d (1994, 190).\nAs the attorney general, Clark had advised Truman regarding labor relations and industrial work\nstoppages that threatened the nation\xe2\x80\x99s well-being. In fact, when coal miners threatened to go\non strike in defiance of a court injunction and the government took control of the mines, Clark\nsuccessfully defended the administration in United States v. Mine Workers, 330 U.S. 258 (1947),\ncalling the miners\xe2\x80\x99 defiance an \xe2\x80\x9cinsult to the United States itself.\xe2\x80\x9d In addition, Attorney General\nClark had made public statements to the Senate Committee on Labor, which were widely\nreproduced in the press, defending the president\xe2\x80\x99s authority to interfere in proposed strikes.\n\xe2\x80\x9cWith regard to the question of the power of the Government,\xe2\x80\x9d Clark contended, \xe2\x80\x9cI might point out\nthat the inherent power of the President to deal with emergencies that affect the health, safety\nand welfare of the entire Nation is exceedingly great\xe2\x80\x9d (1949).\nTherefore, in the steel seizure case, Clark was on record as having advised the president on the\nvery issue before the Court, and while the case was under review, initially it did appear as though\nhe would support Truman\xe2\x80\x99s action. \xe2\x80\x9cThere was quite a clamor for me to disqualify myself in that\ncase,\xe2\x80\x9d Clark remembered twenty years afterward. \xe2\x80\x9cThey all said I\xe2\x80\x99d prejudged it\xe2\x80\x94that I was going\nto decide in favor of the President\xe2\x80\x9d (1973a). Nevertheless, rather than supporting the president,\nClark joined a Court majority to deny Truman the authority to seize private property. However,\nhe would not join Justice Hugo Black\xe2\x80\x99s opinion in Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579\n(1952), which ruled that Truman lacked constitutional authority or congressional authorization for\nhis action.\nInstead, Clark concurred in the judgment insofar as Congress had \xe2\x80\x9claid down specific procedures\nto deal with the type of crisis confronting the President.\xe2\x80\x9d Without such statutory guidance, Clark\nargued, \xe2\x80\x9cthe Constitution does grant to the President extensive authority in times of grave and\nimperative national emergency,\xe2\x80\x9d but \xe2\x80\x9cthe President\xe2\x80\x99s independent power to act depends upon the\n24\n\ngravity of the situation confronting the nation.\xe2\x80\x9d\n\nIn other words, Justice Clark maintained the\n\nposition he had taken as the attorney general\xe2\x80\x94that the president possessed \xe2\x80\x9cexceedingly great\xe2\x80\x9d\ninherent power\xe2\x80\x94but only so long as Congress did not prescribe a specific alternate procedure to\nfollow under the circumstances. Unfortunately, as Dickson observed, Truman was \xe2\x80\x9cinfuriated by\nTom Clark\xe2\x80\x99s \xe2\x80\x98betrayal\xe2\x80\x99 and never forgave his old friend\xe2\x80\x9d (2001, 182n32).\nThis middle ground\xe2\x80\x94acknowledging the president\xe2\x80\x99s authority to act yet denying its exercise\xe2\x80\x94may\nhave been in response to the dissenting justices, who used Clark\xe2\x80\x99s views as the attorney general\nto defend Truman\xe2\x80\x99s action. Chief Justice Fred Vinson, writing in dissent, also drew attention to\n\n24. 343 U.S. 579 at 662 (1952).\n238 | Appearance of Justice\n\n\x0ctwo former attorneys general, Frank Murphy and Robert Jackson, whose views were \xe2\x80\x9cin line\xe2\x80\x9d with\nClark\xe2\x80\x99s. After the Court announced the steel seizure decision, public attention shifted from Clark\xe2\x80\x99s\nrecusal to his changed position, what he called a self-reversal:\nI found myself in that spot in the Steel case where the press pointed out that as Attorney General\nI had advised Senator Thomas that the inherent powers of the President were very great, but as a\nJustice had stricken down the President\xe2\x80\x99s seizure of the steel mills. My reply was that when writing\nthe Senator, I was Attorney General; now I am a Justice! (1969b)\nOnce again, by altering the position he had taken as the attorney general, Clark diverted attention\naway from his participation in the steel seizure decision.\n\nContemporary Issues\nAs previously mentioned, in 1974 Congress amended the federal recusal statute to require justices\nto disqualify themselves when their \xe2\x80\x9cimpartiality might reasonably be questioned.\xe2\x80\x9d Congress did\nthis in large part to address concerns over Justice William Rehnquist\xe2\x80\x99s defense of his participation\nin Laird v. Tatum using pre-1948 examples of questionable judicial behavior. Thirty years later,\nJustice Antonin Scalia sparked renewed interest in Supreme Court recusal when he similarly\ndenied a motion to disqualify himself from a case involving Vice President Richard Cheney as a\nnamed party, Cheney v. U.S. District Court, 542 U.S. 367 (2004). The controversy began when Scalia,\namong others, went on a duck hunting trip with Cheney, and afterward news coverage and critical\ncommentary became so intense that Scalia issued a memorandum defending his participation in\n25\n\nthe case.\n\nA spate of duck-themed articles followed Scalia\xe2\x80\x99s participation in Cheney (Freedman\n\n2004; Goodson 2005; Riffle 2005). Like Rehnquist\xe2\x80\x99s defense, Scalia\xe2\x80\x99s memorandum was remarkable\ngiven the well-entrenched custom on the Court to avoid explaining recusal or participation\ndecisions, what Weaver called a \xe2\x80\x9cconspiracy of silence\xe2\x80\x9d (1975).\nJustice Scalia\xe2\x80\x99s defense relied, in part, on a doctrine first propounded by Rehnquist, what came\nto be known as the \xe2\x80\x9cduty to sit.\xe2\x80\x9d This duty to sit has become such a compelling reason to\navoid recusal that Hume concluded it oftentimes outweighs other ethical considerations favoring\ndisqualification (2017, 4). However, the duty to sit has come increasingly under fire, as other\ncommentators have argued that Congress repudiated the doctrine with the 1974 amendments\nrequiring disqualification regardless of the potential for leaving the Court shorthanded (Bassett\n2005, 21; Beamer 2012, 3; Stempel 1987, 607; 2009, 814 and 818; Virelli 2016, 15\xe2\x80\x9316).\n\n25. 541 U.S. 913 (2004).\nAppearance of Justice | 239\n\n\x0cNevertheless, justices continued to participate in questionable decisions, more often than not\nwithout explanation. For example, when the Court considered the constitutionality of the\nAffordable Care Act (Obamacare) in National Federation of Independent Business v. Sebelius, 132 S.\nCt. 2566 (2012), critics sought Justice Elena Kagan\xe2\x80\x99s recusal because she had served as the solicitor\ngeneral when, presumably, the government developed its defense of the program (Hume 2017, 1,\n4, and 41). Calls were similarly heard for Justice Neil Gorsuch to disqualify himself from Janus\nv. AFSCME, 138 S. Ct. 2448 (2018) because of his close ties to political interests who funded one\nside of the controversy (Warren 2017; \xe2\x80\x9cGinsburg and Gorsuch Should Explain\xe2\x80\x9d 2017). In neither\ninstance did Kagan or Gorsuch explain their participation despite publicized misgivings about\ntheir impartiality. Undoubtedly, they subscribed to the duty to sit requirement, as their\ndisqualifications would have left the Court evenly split, which may have been the sole objective of\nthose advocating for their recusals.\nMore recently, disqualification became an issue during the confirmation hearings of Judge Brett\nKavanaugh. In addition to some arguably partisan attacks on Kavanaugh\xe2\x80\x99s qualifications\xe2\x80\x94not to\nmention the scandalous accusations of prior sexual misconduct\xe2\x80\x94there was also concern about his\nimpartiality, particularly when deciding cases involving a sitting president who faced the potential\nfor indictment. Because he had previously written articles suggesting that the president could\nnot face criminal charges while in office, some commentators believed that Kavanaugh should\ndisqualify himself from any case involving President Donald Trump, who faced the possibility of a\ncriminal investigation (Hurley 2018; Nichols 2018; Rizzo 2018). Thus Kavanaugh\xe2\x80\x99s nomination raised\nthe specter of Supreme Court disqualification even before his confirmation occurred.\n\nCalls for Reform\nThe most salient issue regarding Supreme Court recusal has centered on who has the authority\nto decide when a justice must disqualify themselves. For most of the Court\xe2\x80\x99s history, that decision\nbelonged to the justices themselves; however, for the past seven decades, Congress has required\njustices to disqualify themselves when their participation raised ethical questions, but that\ndecision has always been unreviewable and unenforceable. Even after Congress amended the law\nto provide for more objective recusal standards, for the next forty-five years, as Hume observes,\n\xe2\x80\x9cthe justices have at times conducted their business as though the 1974 revisions never happened\xe2\x80\x9d\n(2017, 117). As a result, a number of reform measures have been proposed to correct what Stempel\ncalls the Court\xe2\x80\x99s \xe2\x80\x9cflawed practice of permitting each justice to make a final and unreviewable\ndecision\xe2\x80\x9d (1987, 590).\nCalls for reform most often followed from a justice\xe2\x80\x99s participation in a particular case when there\n240 | Appearance of Justice\n\n\x0cwere arguably reasons for their recusal. More sustained criticism of a justice\xe2\x80\x99s behavior inevitably\nfollowed from his participation in close decisions, when his disqualification could have potentially\nchanged the outcome. Reform measures have ranged from leaving the law intact but changing the\nCourt\xe2\x80\x99s practice to repealing the law entirely and relying on \xe2\x80\x9cmore indirect constitutional tools\xe2\x80\x9d\n(Virelli 2011, 1185).\nOne proposal, for example, would retain the law in terms of the criteria used for deciding when\nto recuse, but justices with the potential for bias in borderline cases would be required to explain\ntheir participation in a \xe2\x80\x9cstatement of interest.\xe2\x80\x9d These statements would then become a part of the\npublic record, which would draw the other justices\xe2\x80\x99\xe2\x80\x94and the public\xe2\x80\x99s\xe2\x80\x94attention toward the ethical\nimplications of their participation. In addition, other proposals would require similar statements\nwhenever a justice disqualified herself because justices have never explained their recusal when\nthey did sit out of cases (Bassett 2005, 50; Hume 2017, 130\xe2\x80\x9331).\nBeyond these reporting requirements, another area of potential reform involves some type of\nreview, usually by the other justices, of a particular justice\xe2\x80\x99s decision to participate. For example,\none proposal would require a \xe2\x80\x9cstatement of interest\xe2\x80\x9d whenever a party requested a justice\xe2\x80\x99s recusal\nbut was denied, and then the full Court would review that decision (Goodson 2005, 186 and\n213\xe2\x80\x9320). Another proposal would amend the current recusal statute to require justices to inform\nparties of factors that might prompt their disqualification, which could then lead to requests for\ntheir recusal. Again, if the parties\xe2\x80\x99 request were denied, then the Court would review and possibly\noverturn that decision (Stempel 1987, 590 and 643; see also Hume 2017, 127\xe2\x80\x9328). Such a method\nof reporting and oversight may still be possible without amending the law, as traditional forms of\nadjudication already permit it (Frost 2005, 535 and 592).\nYet a third proposal would address the most compelling reason justices sometimes ignore the\nethical implications of their participation\xe2\x80\x94the \xe2\x80\x9cduty to sit.\xe2\x80\x9d Unlike other federal courts where\nvisiting judges can sit by designation, Supreme Court justices are irreplaceable if they choose\nto disqualify themselves. Therefore, to avoid the possibility of an evenly divided Court, another\nproposal would allow replacements for recused justices, such as retired justices or chief judges on\nthe US Court of Appeals (Hume 2017, 128\xe2\x80\x9329).\nOf course, all of these proposals, from reporting requirements, to judicial oversight, to potential\nsubstitutions, presuppose that Congress can legislatively compel justices to disqualify themselves.\nHowever, legislative control over Supreme Court behavior may be an \xe2\x80\x9cunconstitutional intrusion\xe2\x80\x9d\non the separation of powers principle. Therefore, before the Court rules on its constitutionality,\nCongress should repeal the current recusal statute affecting justices. As an alternative to\nlegislation, Virelli has argued, Congress could rely on constitutionally sounder methods, such as\nimpeachment and removal, which may be the only effective means of enforcing the current statute\nregardless (2011, 1185; 2012, 1535\xe2\x80\x9336; 2016, chap. 5). Bassett, on the other hand, thought that it was\n\xe2\x80\x9cunclear whether the statute potentially infringes on separation of powers\xe2\x80\x9d (2005, 50).\nAppearance of Justice | 241\n\n\x0cConclusion\nWhen President Truman nominated his attorney general to a seat on the Supreme Court, there\nwas little consternation over Clark\xe2\x80\x99s past government service, which included eight years in\nthe Justice Department before serving four years as the attorney general. Whether Clark would\nhave to disqualify himself because of his close connection to issues that he had considered as\nthe attorney general never came up during his confirmation. There was some controversy over\nTruman nominating a non-Catholic to fill the seat of the recently deceased Justice Frank Murphy,\nand a few Senators objected to Clark\xe2\x80\x99s nomination for his failure to appear before the judiciary\ncommittee for questioning, a familiar practice today that was then still developing. When Clark did\nrecuse himself, usually there was a recognizable connection to his service as the attorney general,\nbut at times it was difficult to discern. For example, he sat out of several cases where the most\nplausible explanation for his recusal was the case\xe2\x80\x99s Texas-based origins: Dalehite v. United States,\n346 U.S. 15 (1953) involved the notorious Texas City disaster, where over five hundred people\nperished in one of the deadliest industrial accidents in US history; United States v. Harriss, 347\nU.S. 612 (1954) involved federal lobbying law violations and a Texas corporation\xe2\x80\x99s failure to report\nits lobbying efforts affecting agricultural prices; United Gas v. Memphis Gas, 358 U.S. 103 (1958)\ninvolved a Federal Power Commission decision affecting gas prices where a Texas corporation\nserved as one of the parties; and Mercantile National Bank v. Langdeau, 371 U.S. 555 (1963) was an\nappeal from the Supreme Court of Texas involving Dallas-based banks and insurance that turned\non the question of venue.\nAs the first justice appointed to the Court following enactment of the 1948 recusal statute, Clark\nused his best judgment to decide whether he would participate in cases. By and large, he was free\nto exercise his discretion, and for the most part, he behaved appropriately. Rarely did his decisions\naffect the outcome of cases, and only once was his decision to participate publicly questioned.\nFollowing the 1974 amendments, concern about Supreme Court disqualification persisted, leading\nto calls for further reform. However, it is unclear whether additional statutory amendments will\nmake a difference in how justices behave. Since recusal decisions seldom change case outcomes\nor public perceptions of the Court, as Hume has argued, justices routinely disqualify themselves\nwhen the stakes are low. When the stakes are high and their participation will determine the\noutcome, then policy preferences overcome ethical concerns (2017, 15\xe2\x80\x9316 and 117\xe2\x80\x9318). In other\nwords, even when there are good reasons for a justice\xe2\x80\x99s recusal, she will still participate in cases\nwhen the outcome matters to her.\nClark understood this as well as the separation of powers problem behind legislative efforts.\nWriting in another context, he observed,\n\n242 | Appearance of Justice\n\n\x0cTo many minds the judge is the law. To bend the judge to anyone\xe2\x80\x99s will, therefore, raises\ngrave questions. This makes it the more necessary to give pause to any temporary popular\ndemand to straightjacket the judges. . . . It cannot be gainsaid that the founders intended\nfor each branch of the federal government to be master of its own house. This is especially\ntrue in the judiciary where history teaches that the bulwark of a free society is its courts.\n(1970)\nRecent attention to Supreme Court recusal, with its attendant calls for reform, should heed Clark\xe2\x80\x99s\nexample. There may be no constitutionally effective way\xe2\x80\x94save impeachment\xe2\x80\x94to enforce Supreme\nCourt disqualification; the law will have to serve as well as the justices who abide by it. Although he\ndeparted from the federal bench in disgrace following allegations of sexual misconduct, the Ninth\nCircuit Court of Appeals judge Alex Kozinski put it best when reflecting on rules and restrictions\nto promote ethical judicial behavior: \xe2\x80\x9cThe hard truth is that none of these things really matters.\nJudicial ethics, where it counts, is hidden from view, and no rule can possibly ensure ethical\njudicial conduct. Ultimately, there is no choice but to trust the judges\xe2\x80\x9d (2004, 1106).\n\nReferences\nBassett, Debra Lyn. 2005. \xe2\x80\x9cRecusal and the Supreme Court.\xe2\x80\x9d Hastings Law Journal 56 (August):\n657\xe2\x80\x9398. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3) (\xe2\x86\xb5 Return 4) (\xe2\x86\xb5 Return 5)\nBeamer, Laura M. 2012. \xe2\x80\x9cJudicial Recusal: On the Brink of Constitutional Change.\xe2\x80\x9d Colonial\nAcademic Alliance Undergraduate Research Journal 3: 1\xe2\x80\x9322. http://scholarworks.gsu.edu/caaurj/\nvol3/iss1/8 (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3)\nBlack, Ryan C. 2018. \xe2\x80\x9cEthics and Accountability on the U.S. Supreme Court: An Analysis of Recusal\nPractices. By Robert J. Hume.\xe2\x80\x9d Review of Ethics and Accountability on the U.S. Supreme Court:\nAn Analysis of Recusal Practices, Robert J. Hume. Law and Politics Book Review 28 (4): 45\xe2\x80\x9351. (\xe2\x86\xb5\nReturn)\n\xe2\x80\x9cClark, Cautious Trust Buster.\xe2\x80\x9d 1945. Business Week, May 26. (\xe2\x86\xb5 Return)\nClark, Ramsey. 1968. Interview by Harri Barker, October 30. Oral History Interview I, Internet\nCopy, LBJ Library, Austin, Texas. http://www.lbjlibrary.net/assets/documents/archives/\noral_histories/clark_r/CLARK-R1.PDF (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\n\nAppearance of Justice | 243\n\n\x0cClark, Tom C. 1948. \xe2\x80\x9cNational Sovereignty and Dominion Over Lands Underlying the Ocean.\xe2\x80\x9d Texas\nLaw Review 27 (December): 140\xe2\x80\x9357. (\xe2\x86\xb5 Return)\nClark, Tom C. 1949. Letter to Elbert D. Thomas, February 2. The Steel Case, box 124, Tom C. Clark\nPapers, Supreme Court, Harry S Truman Library, Independence, Missouri. (\xe2\x86\xb5 Return)\nClark, Tom C. 1967. Letter to Lowell Wadmond, March 23. General office material: General\ncorrespondence and office files, box B123, Tom C. Clark Papers, Tarlton Law Library, Austin,\nTexas. (\xe2\x86\xb5 Return)\nClark, Tom C. 1969a. Interview by Joe B. Frantz, October 7. Oral History Interview I, Internet\nCopy, LBJ Library, Austin, Texas. http://www.lbjlibrary.net/assets/documents/archives/\noral_histories/clark_t/Clark-T.PDF. (\xe2\x86\xb5 Return)\nClark, Tom C. 1969b. \xe2\x80\x9cReminiscences of an Attorney General turned Associate Justice.\xe2\x80\x9d Houston\nLaw Review 6 (4): 623\xe2\x80\x9329. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3)\nClark, Tom C. 1970. \xe2\x80\x9cJudicial Self-Regulation\xe2\x80\x94Its Potential.\xe2\x80\x9d Law and Contemporary Problems 35\n(Winter): 37\xe2\x80\x9342. (\xe2\x86\xb5 Return)\nClark, Tom C. 1973a. Interview by Jerry N. Hess, February 8. Second Oral History Interview,\nHarry S. Truman Presidential Library and Museum. https://www.trumanlibrary.gov/library/\noral-histories/clarktc. (\xe2\x86\xb5 Return)\nClark, Tom C. 1973b. Interview by Robert M. Ireland, May 8. Fred M. Vinson Oral History Project,\nLouie B. Nunn Center for Oral History, University of Kentucky Libraries. (\xe2\x86\xb5 Return)\nDaniel, Price. 2010. \xe2\x80\x9cTidelands Controversy.\xe2\x80\x9d Handbook of Texas Online, Texas State Historical\nAssociation. https://tshaonline.org/handbook/online/articles/mgt02 (\xe2\x86\xb5 Return)\nDickson, Del. 2001. The Supreme Court in Conference (1940\xe2\x80\x931985): The Private Discussions Behind\nNearly 300 Supreme Court Decisions. New York; Oxford University Press. (\xe2\x86\xb5 Return)\n\xe2\x80\x9cEnforcing the Antitrust Laws: What Business Can Expect: An Interview with Attorney General\nTom C. Clark.\xe2\x80\x9d 1948. U.S. News & World Report, December 17. (\xe2\x86\xb5 Return)\nFlamm, Richard E. 2007. Judicial Disqualification: Recusal and Disqualification of Judges, 2nd ed.\nBerkeley, CA: Banks and Jordan. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nFrank, John P. 1947. \xe2\x80\x9cDisqualification of Judges.\xe2\x80\x9d The Yale Law Journal 56 (4): 605\xe2\x80\x9336. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5\nReturn 2)\n\n244 | Appearance of Justice\n\n\x0cFrank, John P. 1970. \xe2\x80\x9cDisqualification of Judges: In Support of the Bayh Bill.\xe2\x80\x9d Law and Contemporary\nProblems 35 (1): 43\xe2\x80\x9368. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3) (\xe2\x86\xb5 Return 4)\nFreedman, Monroe H. 2004. \xe2\x80\x9cDuck-Blind Justice: Justice Scalia\xe2\x80\x99s Memorandum in the Cheney\nCase.\xe2\x80\x9d Georgetown Journal of Legal Ethics 18: 229\xe2\x80\x9335. (\xe2\x86\xb5 Return)\nFrost, Amanda, 2005. \xe2\x80\x9cKeeping up Appearances: A Process-Oriented Approach to Judicial Recusal.\xe2\x80\x9d\nUniversity Kansas Law Review 53 (April): 531\xe2\x80\x9393.\xe2\x80\x9cGinsburg and Gorsuch Should Explain Their\nNon-Recusal Decisions.\xe2\x80\x9d 2017. Fixthecourt.com. https://fixthecourt.com/2017/12/ginsburggorsuch-explain-non-recusals-despite-clear-biases/ (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return)\nGoodson, Timothy J. 2005. \xe2\x80\x9cDuck, Duck, Goose: Hunting for Better Recusal Practices in the United\nStates Supreme Court in Light of Cheney v. United States District Court.\xe2\x80\x9d North Carolina Law\nReview 84 (December): 181\xe2\x80\x93220. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nHirsch, Alan and Kay Loveland. 2002. \xe2\x80\x9cRecusal: Analysis of Case law Under 28 U.S.C. \xc2\xa7\xc2\xa7 455\n& 144.\xe2\x80\x9d Federal Judicial Center. http://www.courtappointedmasters.org/sites/default/files/\nRecusal.pdf. (\xe2\x86\xb5 Return)\nHume, Robert J. 2014. \xe2\x80\x9cDeciding Not to Decide: The Politics of Recusals on the U.S. Supreme Court.\xe2\x80\x9d\nLaw and Society Review 48 (September): 621\xe2\x80\x9350. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nHume, Robert J. 2017. Ethics and Accountability on the U.S. Supreme Court: An Analysis of Recusal\nPractices. Albany: State University of New York Press. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3) (\xe2\x86\xb5\nReturn 4) (\xe2\x86\xb5 Return 5) (\xe2\x86\xb5 Return 6) (\xe2\x86\xb5 Return 7) (\xe2\x86\xb5 Return 8) (\xe2\x86\xb5 Return 9)\nHurley, Lawrence. 2018. \xe2\x80\x9cJustice Kavanaugh Unlikely to Heed Calls for Recusal.\xe2\x80\x9d Reuters.com.\nhttps://www.reuters.com/article/us-usa-court-kavanaugh-recusal/justice-kavanaughunlikely-to-heed-calls-for-recusal-idUSKCN1ML18S (\xe2\x86\xb5 Return)\n\xe2\x80\x9cJustice Rehnquist\xe2\x80\x99s Decision to Participate in Laird v. Tatum.\xe2\x80\x9d 1973. Columbia Law Review 73 (1):\n106\xe2\x80\x9324. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nKastenberg, Joshua and Eric Merriam. 2016. In a Time of Total War: The Federal Judiciary and the\nNational Defense\xe2\x80\x941940\xe2\x80\x931954. New York: Routledge. (\xe2\x86\xb5 Return)\nKozinski, Alex. 2004. \xe2\x80\x9cThe Real Issues of Judicial Ethics.\xe2\x80\x9d Hofstra Law Review 32 (4): 1095\xe2\x80\x931106. (\xe2\x86\xb5\nReturn)\nLubet, Steven. 1996. \xe2\x80\x9cDisqualification of Supreme Court Justices: The Certiorari Conundrum.\xe2\x80\x9d\nMinnesota Law Review 80 (February): 657\xe2\x80\x9376. (\xe2\x86\xb5 Return)\n\nAppearance of Justice | 245\n\n\x0cMacKenzie, John P. 1974. The Appearance of Justice. New York: Charles Scribner\xe2\x80\x99s. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5\nReturn 2)\nMarcus, Maeva. 1994. Truman and the Steel Seizure Case: The Limits of Presidential Power. Durham:\nDuke University Press. (\xe2\x86\xb5 Return)\nNichols, John. 2018. \xe2\x80\x9cBrett Kavanaugh Once Argued that a Sitting President Should be Above the\nLaw, and That Should be Disqualifying.\xe2\x80\x9d The Nation, July 9. (\xe2\x86\xb5 Return)\nPearson, Drew. 1952. \xe2\x80\x9cEight Supreme Court Justices Have Okayed Seizures in Past.\xe2\x80\x9d St. Petersburg\nTimes, May 19. (\xe2\x86\xb5 Return)\nPerlman, Philip. 1949. Letter to Tom C. Clark, August 31. General office material: General\ncorrespondence and office files, box B94, Tom C. Clark Papers, Tarlton Law Library, Austin,\nTexas. (\xe2\x86\xb5 Return)\nRiffle, Christopher. 2005. \xe2\x80\x9cDucking Recusal: Justice Scalia\xe2\x80\x99s Refusal to Recuse Himself from\nCheney, and the Need for a Unique Recusal Standard for Supreme Court Justices.\xe2\x80\x9d Nebraska Law\nReview 84: 650\xe2\x80\x9373. (\xe2\x86\xb5 Return)\nRizzo, Salvadore. 2018. \xe2\x80\x9cDoes Brett Kavanaugh Think the President is Immune from Criminal\nCharges.\xe2\x80\x9d Washington Post, July 11. (\xe2\x86\xb5 Return)\nStempel, Jeffrey. 1987. \xe2\x80\x9cRehnquist, Recusal, and Reform.\xe2\x80\x9d Brookings Law Review 53 (Fall): 589\xe2\x80\x93667.\n(\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3) (\xe2\x86\xb5 Return 4) (\xe2\x86\xb5 Return 5) (\xe2\x86\xb5 Return 6) (\xe2\x86\xb5 Return 7)\nStempel, Jeffrey. 2009. \xe2\x80\x9cChief William\xe2\x80\x99s Ghost: The Problematic Persistence of the Duty to Sit.\xe2\x80\x9d\nBuffalo Law Review 57 (May): 813\xe2\x80\x93958. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nVirelli, Louis J. 2011. \xe2\x80\x9cThe (un)constitutionality of Supreme Court Recusal Standards.\xe2\x80\x9d Wisconsin\nLaw Review: 1181\xe2\x80\x931234. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3) (\xe2\x86\xb5 Return 4)\nVirelli, Louis J. 2012. \xe2\x80\x9cCongress, the Constitution, and Supreme Court Recusal.\xe2\x80\x9d Washington and Lee\nLaw Review 69 (Summer): 1535\xe2\x80\x931606. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3)\nVirelli, Louis J. 2016. Disqualifying the High Court: Supreme Court Recusal and the Constitution.\nLawrence: University Press of Kansas. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3)\nWarren,\n\nElizabeth.\n\n2017.\n\n\xe2\x80\x9cThe\n\nSupreme\n\nCourt\n\nhas\n\nan\n\nEthics\n\nProblem.\xe2\x80\x9d\n\nPolitico.com.\n\nhttps://www.politico.com/magazine/story/2017/11/01/supreme-court-ethics-problemelizabeth-warren-opinion-215772 (\xe2\x86\xb5 Return)\nWeaver, Warren. 1975. \xe2\x80\x9cHigh Court and Disqualification.\xe2\x80\x9d New York Times, March 3. (\xe2\x86\xb5 Return)\n246 | Appearance of Justice\n\n\x0cClass Activity\n1. Compare the 1948 recusal statute affecting Supreme Court justices as found in this chapter\nto the 1974 amendments, which were much more extensive. A copy of the 1974 amendments\nis available at https://www.law.cornell.edu/uscode/text/28/455.\nDiscuss which of these statutes you believe is more appropriate for Supreme Court recusal. What\nwould you change or amend to improve the requirements for Supreme Court recusal?\n2. Discuss whether you believe Justice Tom Clark behaved ethically with regard to the 1948\nstatute. If the 1974 amendments had been in place while he served, do you believe that he\nbehaved ethically?\n3. In 1993, seven justices signed a \xe2\x80\x9cStatement of Recusal Policy,\xe2\x80\x9d announcing when they\nwould\xe2\x80\x94and when they would not\xe2\x80\x94disqualify themselves with respect to their spouses,\nchildren, or other family members who practiced law. A copy of the policy is available at\nhttp://eppc.org/docLib/20110106_RecusalPolicy23.pdf. Today, only two of those justices still\nserve on the Court, Justices Ruth Bader Ginsberg and Clarence Thomas, although Chief\nJustice John Roberts and Justice Samuel Alito have announced that they subscribe to its\nrequirements.\nDiscuss whether you think Supreme Court justices should issue such a policy statement. Weigh\nthe advantages and disadvantages of such a move.\n4. Consider the reforms mentioned in this chapter, including repeal of the current recusal\nstatute, and evaluate which proposals have merit. Discuss the ethical and/or constitutional\nimplications of each proposal.\n\nAppearance of Justice | 247\n\n\x0cCongress\nThe courts are part of a system of separate institutions that make up the US federal government.\nCongress controls the budget and generally the shape and form of the federal courts. In terms\nof staffing the judiciary, for the most part, the Senate, with its role of advice and consent,\nconfirms all life-tenure judges. How do the interactions of Congress and the judiciary play out\npolitically? In this section, Mark Miller examines this question by closely analyzing the role of\nthe House and Senate judiciary committees and their dealings with Article III courts. Using\nelite interviews, he shows that the congressional committees have a variety of mechanisms to\ninfluence the decisions of the courts. His inquiry also uncovers the important role that lawyerlegislators play in this process, suggesting that changes in this particular demographic could have\nsignificant consequences for the relationship between the courts and Congress. Stone et al. zoom\nin on senatorial responses to charges of sexual misconduct during Supreme Court confirmation\nhearings. Using the Senate floor speeches during the Thomas and Kavanaugh confirmation\nhearings, these scholars explore and assess whether that behavior systematically changed during\nthe intervening decades (1991 to 2018). They find that the more things change the more they stay\nthe same, a somewhat surprising finding given the significant developments surrounding women\xe2\x80\x99s\nrights, gender inclusivity, the increasing number of women in the Senate, and the #MeToo\nmovement.\nMiller, Mark C. \xe2\x80\x9cThe Relationship between the Federal Courts and the Two Congressional Judiciary\nCommittees.\xe2\x80\x9d\nStone, Molly, Carol Moren, Laruen Sluss, Rorie Spill Solberg, and Eric Waltenburg. \xe2\x80\x9cSenatorial\nSpeeches from Thomas to Kavanaugh: A Short Note.\xe2\x80\x9d\n\n248 | Congress\n\n\x0c11. The Relationship between the Federal\nCourts and the Two Congressional\nJudiciary Committees\nMARK C. MILLER\n\nThe interactions and relationships between the federal courts and Congress are important for\nunderstanding the role of the judiciary in the larger American governmental system. While\nscholars have studied the courts and Congress separately, there are fewer efforts to examine how\nthese two government institutions interact. As den Dulk and Pickerill have noted, \xe2\x80\x9cTreating the\nCourt or Congress in isolation misconstrues the nature of inter-institutional lawmaking in the\nUnited States. The actions of each institution have important reciprocal effects; both contribute\nto the form and substance of law\xe2\x80\x9d (den Dulk and Pickerill 2003, 420). The chapter will explore these\ncourt-Congress interactions over three different historical periods: the late 1980s, the early 2000s,\nand today.\nThis chapter will examine the relationship between Congress and the federal courts from the\nperspectives of the House Judiciary Committee and the Senate Judiciary Committee, the two\ncongressional committees that have jurisdiction over most court-related and legal matters. It\nis worth looking at court-Congress interactions through the lens of congressional committees\nbecause committees matter a great deal in Congress. As Woodrow Wilson in 1885 famously\nobserved, \xe2\x80\x9cCongress in session is Congress on public exhibition, whilst Congress in its committeerooms is Congress at work\xe2\x80\x9d (Wilson 1885). Comparing the interactions between the federal courts\nand the House and Senate Judiciary Committees respectively is important because, as Richard\nFenno noted in his landmark study, \xe2\x80\x9cCongressional committees differ from one another. And\nHouse committees differ from Senate committees\xe2\x80\x9d (Fenno 1973, 280).\nThe relationships between the courts and Congress are especially important to study for students\nof judicial politics, \xe2\x80\x9cgiven the profound influence that the legislative branch of government has\nexerted on the very nature of the judicial branch\xe2\x80\x9d (Geyh 2006, 18). Congress working through its\nJudiciary Committees has the ultimate decision about how to structure the federal courts and\ntheir jurisdictions (the power to hear a case). Congress also decides how many judges will serve\non each level of the federal judiciary, including the US Supreme Court. For example, in 1977, 1984,\nand 1990 Congress greatly expanded the number of judgeships on the US District Courts (the\nfederal trial courts), suddenly giving the then president many more judicial nominations than his\npredecessors (see de Figueiredo and Tiller 1996, 443). Congress also sets the number of justices\non the US Supreme Court, and during and after the Civil War, the Republican Congress altered\nThe Relationship between the Federal Courts and the Two\nCongressional Judiciary Committees | 249\n\n\x0cthat number to fit its political needs at the time (see Collins and Ringhand 2013, 18). By refusing to\nconsider President Obama\xe2\x80\x99s nomination of Judge Merrick Garland to the Supreme Court, in effect\nthe Republican Senate reduced the number of justices on the Court to eight for almost a year.\nWith the Supreme Court now having a clear conservative majority, some liberals are calling for an\nexpansion of the size of the Supreme Court if liberals gain control of both houses of Congress and\nthe White House (see, e.g., Otterbein 2020).\nCongress also determines the boundaries of the US Courts of Appeals, occasionally redrawing\nthose boundaries for workload or ideological reasons. For example, following the lead of its\nJudiciary Committees, Congress in 1980 split the old Fifth Circuit Court of Appeals and moved\nthe states of Florida, Georgia, and Alabama to the new Eleventh Circuit for both political and\nmanagement reasons (Barrow and Walker 1988). Today, many conservatives would like to split up\nthe current Ninth Circuit because of its perceived liberal decisions. When Republicans controlled\nthe House Judiciary Committee, that committee held various hearings over the years on this issue,\nas did the Senate Judiciary Committee (see, e.g., Bomboy 2017).\nOne of the routine points of interactions between the federal courts and the Congress involves\nthe Senate\xe2\x80\x99s role in the confirmation of appointees to the federal bench. The president appoints\nfederal judges, while the Senate must confirm them. The House has no role in this process. Judicial\nconfirmations are a very important point of interaction between the Senate Judiciary Committee\nand federal judges. As Bell has noted, \xe2\x80\x9cPresidents routinely fill more federal judgeships than any\nother office\xe2\x80\x9d (Bell 2002, 102).\nSince 1939, most presidential nominees to the federal bench have faced confirmation hearings\nbefore the Senate Judiciary Committee before the nomination is considered by the full Senate\n(see Collins and Ringhand 2013, 1). Senators have often used these hearings as a mechanism to\nsend signals to the potential judges about what past rulings they oppose and what kinds of future\njudicial decisions they would like to see. As Gerhardt explains, \xe2\x80\x9cSenators, and presidents, employ\ntheir authority over appointments to impress their constitutional views upon other institutions\n(and the public)\xe2\x80\x9d (Gerhardt 2000, xxvi). At the hearings, Senators may ask a lot of questions about\nthe nominees\xe2\x80\x99 views on judicial activism and other judicial philosophies. Thus, the Senators are\ntrying to figure out how the nominees may rule on future controversies. Today, most judicial\nnominees refuse to give direct answers to these questions (Baker 2007, 108). In fact, the judicial\nconfirmation process may affect future interactions between Congress and the courts. As Baker\nexplains, \xe2\x80\x9cIn recent years, justices of the Supreme Court have emerged badly battered from\nthe polarized, partisan, and contentious confirmation process in the Senate, so it would not be\nsurprising if they were to harbor lingering bitterness towards the politicians who subjected them\nto harsh and lengthy interrogation\xe2\x80\x9d (Baker 2007, 107).\n\n250 | The Relationship between the Federal Courts and the Two Congressional Judiciary Committees\n\n\x0cHistorical Institutionalism and Elite Interviewing\nThis chapter examines court-Congress interactions using a Historical Institutionalist analysis.\nIn Historical Institutionalism, scholars explore how over time \xe2\x80\x9cinstitutional cultures, structures,\nrules, and norms constrain the choices and action of individuals when they serve in a political\ninstitution\xe2\x80\x9d (Miller 2015, 185). The assumption is that political institutions may develop new norms,\ntraditions, and functions as they interact with other institutions and refine their institutional\nrelationships (see Gillman and Clayton 1999, 6\xe2\x80\x937).\nThe Historical Institutionalism approach allows scholars to consider the big picture questions\nthat more narrow studies often cannot address. As Pierson and Skocpol explain, \xe2\x80\x9cHistoricalinstitutional scholars address big, substantive questions that are inherently of interest to broad\npublics as well as to fellow scholars\xe2\x80\x9d (Pierson and Skocpol 2002, 695). For our purposes, the\nbig questions mean examining court-Congress interactions. These big-picture questions can\ntell us a lot about how institutional cultures and norms affect political decision-making in our\ngovernmental institutions. As these scholars continue, \xe2\x80\x9cResearching important issues in this way,\nhistorical institutionalists make visible and understandable the overarching contexts and\ninteracting processes that shape and reshape [nations], politics, and public policymaking\xe2\x80\x9d (Pierson\nand Skocpol 2002, 693).\nAnother aspect of the Historical Institutional approach is that the researcher can easily shift levels\nof analysis. This chapter will begin with an overview of court-Congress interactions at the highest\nlevel of analysis, the full Congress, before moving to a lower level of analysis that focuses on the\ntwo Judiciary Committees and then a third level of analysis: the individual politicians who serve\non these committees and their views of the federal courts.\nIn order to understand how institutional variables constrain the decisions made by legislators in\nCongress, I conducted elite interviews with people who served on or worked closely with the\nHouse Judiciary Committee and the Senate Judiciary Committee. These committees have the\nclosest and most frequent interactions with the federal courts because they have jurisdiction\nover most legal and court-related matters. The Judiciary Committees also hold most of the\nconstitutionally based hearings in Congress (Devins 2017, 750). As stated previously, the Senate\nJudiciary Committee also investigates and holds confirmation hearings for all federal judicial\nnominees at all three levels of the federal judiciary.\nI interviewed US Representatives, legislative staff members in both the US House and the US\nSenate, federal judges, lobbyists familiar with the two committees, staff in think tanks that deal\nwith Congress-court relationships, and academics who have studied judicial-legislative\ninteractions. These semistructured interviews occurred in Washington, DC, over three different\nperiods of time: calendar years 1989, 2006\xe2\x80\x937, and 2017\xe2\x80\x9318. Some of these interviews were as short\nThe Relationship between the Federal Courts and the Two Congressional Judiciary Committees | 251\n\n\x0cas fifteen minutes, but others lasted almost two hours. Instead of surveying the interviewees\nstrictly for their opinions and then aggregating those views, these semistructured interviews\nwere designed to elicit the interviewees\xe2\x80\x99 expertise about the institutional culture of the two\ncongressional committees and how the committees interacted with the federal courts. These\ninterviews were more like in-depth conversations where the participants often provided key\ninformation before I even asked for it. For example, my interviewees told me that lawyerlegislators were the key to understanding the relationships between the federal courts and the\nJudiciary Committees, something I had not considered before I started my interviews.\nThis type of empirical elite interviewing does not involve formal hypothesis testing because I\nhad no preconceived notions of what I would hear from my expert interviewees. As Richard\nFenno stated in one of his landmark studies of Members of Congress, \xe2\x80\x9cSomeone doing this\nkind of research is quite likely to have no crystallized idea of what he or she is looking for or\nwhat questions to ask when he or she starts\xe2\x80\x9d (Fenno 1978, 250). My analysis draws on these\ninterviews; thus, the quotations from the interviews illustrate how the experts understand the\ninstitutional factors that constrain the decision-making of the individuals who serve on the House\nand Senate Judiciary Committees when they interact with the federal courts, both at the individual\nlevel of analysis and at the committee level of analysis. In his study of the Supreme Court\xe2\x80\x99s\ncertiorari decision-making, Perry states, \xe2\x80\x9cElite interviewing is a well-developed tradition in social\nscience.\xe2\x80\xa6Done well, it is particularly useful for developing general understandings of processes,\nand it highlights assumptions that can be tested empirically\xe2\x80\x9d (Perry 1991, 8). At various points in\nthis chapter, I will cite important quotations from these various interviews.\n\nSeparation of Powers\nWe will begin at the highest level of analysis: the role of the branches of government in the\nAmerican separation of powers system. Each branch of the federal government (executive,\nlegislative, judicial) has its own duties and responsibilities, but each governmental institution\nis also subject to checks and balances from the other branches. Rubin calls this governmental\nsystem, \xe2\x80\x9ca network of interconnected institutions\xe2\x80\x9d (Rubin 2002, 61). Rarely can a single political\ninstitution make decisions without at least considering the perspectives of the others. Thus,\nRichard Neustadt has referred to this system as one of \xe2\x80\x9cseparated institutions sharing powers\xe2\x80\x9d\n(Neustadt 1980, 26). And as Clark reminds us, \xe2\x80\x9cSeparation of powers represents perhaps the\nmost important contribution the American experiment has made to constitutional democracy\nthroughout the world\xe2\x80\x9d (Clark 2011, 1).\nIn this complex separation of powers system, the relationships between the Congress (and its\n252 | The Relationship between the Federal Courts and the Two Congressional Judiciary Committees\n\n\x0ccommittees) and the federal courts are very important. These interactions are worth exploring\nbecause each institution needs the other. Martin notes that Congress and the courts have a\nrelationship of \xe2\x80\x9cinstitutional interdependence\xe2\x80\x9d because \xe2\x80\x9cthe Founders created a separation of\npowers system whereby no single institution could enact policy unilaterally\xe2\x80\x9d (Martin 2006, 4). The\ncurrent constitutional relationship between these two governmental institutions also deserves\nattention. As Bailey, Maltzman, and Shipan conclude, \xe2\x80\x9cWhereas Congress\xe2\x80\x99s relationship with the\nexecutive is spelled out in detail in the Constitution, the relationship between Congress and the\njudiciary was left by the founders to be defined by history. Since history is rarely tidy or consistent,\nthe relationship that exists between the courts and Congress is as messy as the Constitution itself\xe2\x80\x9d\n(Bailey, Maltzman, and Shipan 2011, 835).\nSome of the interactions between the courts and Congress are quite routine and sometimes\neven cooperative. For example, Congress often purposefully assumes that the courts will clarify\nvague legislative language (see Miller 1956; Lovell 2003, 5\xe2\x80\x937), and in their opinions, the courts\nmay request that Congress act to fix a perceived legal problem (see Hausegger and Baum 1999).\nThese routine interactions rarely lead to conflict between the institutions. As Pickerill has noted,\n\xe2\x80\x9cThose who expect a constitutional revolution, a constitutional moment, or other form of severe\nconfrontation between the Court and Congress simply do not appreciate the more routine and\ntypical type of interaction between the Court and Congress in the political process\xe2\x80\x9d (Pickerill\n2004, 130). At other times, however, the interactions between Congress and the federal courts can\nbecome more conflictual.\nOne of the key differences between the courts and the other voices in the interinstitutional\ndialogue about governance is the fact that appellate courts including the US Supreme Court must\njustify their decisions using legal reasoning and legal analysis. Politicians in Congress are under no\nsuch constraints and can justify their decisions in purely political terms if they justify them at all.\nAs Justice Kennedy has noted, the Supreme Court is \xe2\x80\x9cset apart from other branches of government\nbecause it speaks a different language from the political branches\xe2\x80\x9d (quoted in Perry 1999, 48).\nIn our separation of powers structure, at times Congress and the federal courts really do not\nunderstand each other very well. As one scholar has explained, \xe2\x80\x9cThe judiciary seeks an\nenvironment respectful of its independence. Congress seeks a judicial system that faithfully\nconstrues the laws of the legislative branch and efficiently discharges justice\xe2\x80\x9d (quoted in Katzmann\n1997, vii). Thus, the courts and Congress clearly have different institutional cultures, different\ninstitutional needs, and different institutional wills. As Judge Katzmann has argued, \xe2\x80\x9cCongress is\nlargely oblivious of the well-being of the judiciary as an institution, and the judiciary often seems\nunaware of the critical nuances of the legislative process. But for occasional exceptions, each\nbranch stands aloof from the other\xe2\x80\x9d (Katzmann 1988, 7).\nMisunderstandings between Congress and the courts can therefore arise because the two\ninstitutions thus have very different approaches to policy making. As Judge Katzmann has\nThe Relationship between the Federal Courts and the Two Congressional Judiciary Committees | 253\n\n\x0cconcluded, \xe2\x80\x9cThe study of judicial-congressional relations is rooted in the premise that the two\nbranches lack appreciation of each other\xe2\x80\x99s processes and problems, with unfortunate\nconsequences for both and for policymaking more generally\xe2\x80\x9d (Katzmann 1988, 1). The policymaking process thus depends on these two institutions working together as much as possible.\nAs Pickerill explains, \xe2\x80\x9cLawmaking in our separated system is continuous, iterative, speculative,\nsequential, and declarative, and consequently each institution in our system must necessarily\nanticipate, interact with, and react to the actions of the other institutions\xe2\x80\x9d (Pickerill 2004, 4).\nThese potential conflicts between Congress and the Supreme Court, as well as other federal\ncourts, often receive the most attention from scholars and from the media.\nIt is quite common for various politicians to criticize specific court opinions with which they\ndisagree. Legislators can be especially critical when the US Supreme Court declares an act of\nCongress to be unconstitutional and thus void. All regular courts in the United States have the\npower of judicial review, which is the ability to declare the actions of the Congress, the president,\nthe bureaucracy, or the states to be unconstitutional. Although not specifically mentioned in the\nConstitution, the Supreme Court took this power of judicial review for itself in the landmark case\nof Marbury v. Madison (1803). However, most of the time the Court upholds the constitutionality\nof congressional laws. In his exhaustive study of Supreme Court cases from 1789 until 2018,\nWhittington found that over time the Court has upheld the constitutionality of federal statutes\nabout three-fourths of the time (Whittington 2019, 25).\nAt times, Congress even attempts to overturn various federal court rulings. If the judicial decision\nis constitutionally based, then in theory a constitutional amendment is required to overturn the\nruling. Recall that a constitutional amendment requires two-thirds of the US House, two-thirds of\nthe US Senate, and three-quarters of the states to be approved. Sometimes, however, Congress\ntries to use mere statutes to overturn constitutionally based court decisions. When the Supreme\nCourt in Texas v. Johnson (1989) declared that burning an American flag was protected political\nspeech under the First Amendment, instead of passing a constitutional amendment Congress\ninstead attempted to overturn the ruling with a new federal statute. The Court quickly declared\nthat federal statute to be unconstitutional as well in United States v. Eichman (1990). For statutory\ninterpretation rulings, if Congress is unhappy with the judicial interpretation of the statute, then\nall they need to do is to enact a new statute, which has the effect of overturning the court\ninterpretation (see Barnes 2004). For example, The Lilly Ledbetter Fair Pay Act of 2009 overturned\nthe Supreme Court\xe2\x80\x99s decision in Ledbetter v. Goodyear Tire & Rubber Co. (2007), which interpreted\nthe Civil Rights Act of 1964 to make it more difficult to prove sex discrimination regarding salaries.\nOne issue that nicely illustrates the differing institutional wills between Congress and the federal\njudiciary involves cameras at the Supreme Court. The Supreme Court has never allowed its oral\narguments to be televised. Every year at least two justices go across the street and ask the\nappropriate subcommittee of the House Appropriations Committee for money for the federal\n254 | The Relationship between the Federal Courts and the Two Congressional Judiciary Committees\n\n\x0cjudiciary\xe2\x80\x99s annual budget (see, e.g., Walker and Barrow 1985). Inevitably, members of the\nsubcommittee seem to ask two perennial questions: Why are there so few minority law clerks at\nthe US Supreme Court? Why doesn\xe2\x80\x99t the Court allow cameras in its courtroom to televise oral\narguments? On the cameras question, some of the justices (such as Justice Souter) have replied\nthat cameras will come into their courtroom \xe2\x80\x9cover their dead bodies\xe2\x80\x9d (Kopko and Krause 2015, 62).\nOn the other hand, legislation has been proposed in Congress since the 1970s to try to get the\nSupreme Court to televise its proceedings (see, e.g., Thornberry 2012). For example, in December\nof 2014 a House Judiciary Committee subcommittee held a hearing on the so-called Sunshine in\nthe Courtroom Act of 2013, which would have required cameras to be allowed in all federal courts,\nincluding the US Supreme Court (US House Judiciary Committee 2014). To date, Congress has\nnever approved any legislation requiring the federal courts to televise their proceedings, but the\nissue keeps getting raised.\n\nCourt-Congress Interactions in the 1980s\nThe level of potential conflict between Congress (and its committees) and the federal courts seems\nto vary greatly over time. Conservatives have been wary of the federal courts since the heyday of\nliberal judicial activism during the 1950s and 1960s. They have certainly criticized many federal\ncourt decisions that they perceived to be too liberal, and they have offered a number of courtcurbing proposals over the years, but Congress enacted very few of them (see, e.g., Geyh 2006).\nThis conflictual relationship between the courts and Congress certainly played out in the two\nJudiciary Committees.\nThe chapter will now move to the committee level of analysis to help us better understand the\ninteractions between Congress and the federal courts. When I started my interviews in 1989,\none of my main concerns was finding out how the institutional culture of the House Judiciary\nCommittee had worked to thwart the various court-curbing proposals. I quickly discovered that\nthe lawyer-legislators on the House Judiciary Committee had been instrumental in shielding the\nfederal courts from institutional attacks. The most important players in protecting the courts\n1\n\nturned out to be the respective chairs of the House Judiciary Committee.\n\n1. Congressman Peter W. Rodino Jr. (D-NJ) chaired the committee from 1973 to 1989 and was extremely\nsupportive of the federal courts. Following Chairman Rodino was another supporter of the court,\nRepresentative Jack Brooks (D-TX), who chaired the committee from 1989 to 1995. Another leader of\nthe committee who worked to protect the courts was Congressman Henry Hyde (R-IL), who served\nThe Relationship between the Federal Courts and the Two Congressional Judiciary Committees | 255\n\n\x0cBoth the Senate and House Judiciary Committees are often known as the Committees of Lawyers.\nClearly lawyer-politicians have been greatly overrepresented among the membership of both\n2\n\nJudiciary Committees. While lawyers have long been the largest professional group in the US\nCongress as a whole (see, e.g., Bonica 2020), the Judiciary Committees have attracted almost\nexclusively lawyer-legislators. In their longitudinal study of the committee assignment process\nin the US House from World War II to the early 2000s, Frisch and Kelly found that \xe2\x80\x9clawyers,\nregardless of party or electoral status, are likely to request assignment to Judiciary\xe2\x80\x9d (Frisch and\nKelly 2006, 148). The parties generally obliged these requests, and only lawyers were appointed to\nthe committees for many years (see, e.g., Perkins 1981, 348).\nBoth the House and Senate Judiciary Committees have developed generally lawyerly decisionmaking cultures that are extremely partisan in nature and thus rife with conflict. For example, one\nset of scholars have described the House Judiciary Committee as a forum \xe2\x80\x9cwhere passionate and\ncombative oratory is generally the order of the day\xe2\x80\x9d (Koszczuk and Stern 2005, 797). And as Devins\nnotes about the two committees, \xe2\x80\x9cJudiciary Committee polarization is more extreme than party\npolarization elsewhere because the Judiciary Committees tend to attract especially ideological\nlawmakers\xe2\x80\x9d (Devins 2017, 777). Traditionally, both Judiciary Committees attracted members from\nthe extremes of each political party, but this ideological polarization has been most evident in\nthe House. Comparing the Judiciary Committees, a Democratic Senate staffer told me that \xe2\x80\x9cthe\ncommittee is much bigger in the House and it has a broader range of extremists in both parties\nthan in the Senate\xe2\x80\x9d (Miller 2020, 218).\nIn my early research, lawyer members of the House, and especially those lawyers who served\non the House Judiciary Committee, were extremely protective of the courts. During my 1989\ninterviews, I found that over 70 percent of the US Representatives I interviewed who served\non several House committees had extremely positive attitudes toward the federal courts, while\nonly about 50 percent of the nonlawyer members did (Miller 1995, 105). Traditionally, the various\nchairs of the House Judiciary Committee were especially protective of the courts and prevented\nthe committee from considering any court-curbing legislation. In 1989, one House Judiciary\nCommittee staffer offered an extremely insightful explanation of why he felt the committee was\nextremely supportive of the courts. He said, \xe2\x80\x9cJust like one can disagree with different schools of\nthought among legal scholars or other academics, Judiciary members disagree with the courts\n\nas the Ranking Minority Member of the Committee when it was under Democratic control and then\nwho chaired the committee from 1995 to 2001 under GOP control.\n2. When counting lawyer members in Congress, I count all individuals with law degrees, as opposed to\ncounting only those who list attorney or some other lawyer-related field as their main occupation. I\nargue that even lawyer-politicians who have never practiced law nevertheless have been socialized\ninto the profession through law school and thus \xe2\x80\x9cthink like a lawyer\xe2\x80\x9d (Miller 1995, 17\xe2\x80\x9323).\n256 | The Relationship between the Federal Courts and the Two Congressional Judiciary Committees\n\n\x0cwithout attacking the courts as an institution. When Judiciary members disagree with a court\xe2\x80\x99s\ndecision, they don\xe2\x80\x99t call for the impeachment of the judge; they file amicus briefs for the appeal\xe2\x80\x9d\n(Miller 1995, 137). While some conservatives advocated for a variety of court-curbing measures, the\nHouse Judiciary Committee quietly killed those attacks on judicial independence.\n\nCourt-Congress Conflicts in the Early 2000s\nThings had changed quite a bit when I conducted my next round of interviews in 2006\xe2\x80\x937. Federal\njudges felt that they were under attack from Congress in general, and specifically from the House\nJudiciary Committee. I wanted to find out what had changed in the institutional culture of the\nJudiciary Committee that made the federal judiciary feel vulnerable.\nAfter the Republicans took control of the full House and therefore the House Judiciary Committee\nafter the 1994 elections, Chairman Henry Hyde (R-IL) remained strongly supportive of the courts,\nand never let the committee consider court-curbing measures (Miller 2009, 145\xe2\x80\x9347). On the other\nhand, Hyde\xe2\x80\x99s successor, Chairman Jim Sensenbrenner (R-WI), was extremely antagonistic toward\nthe federal judiciary when he chaired the Committee from 2001 to 2007, including convincing\nhis committee to pass a variety of court-curbing legislation. Both men were very conservative\nlawyer-legislators from the Midwest, but they took radically different approaches to the issue of\ninstitutional attacks on the courts. As one congressional staffer told me in 2006, \xe2\x80\x9cCongressman\nHyde had an old-school approach to the courts, treating judges with the respect deserved for\nmembers of a co-equal institution. Sensenbrenner is a highly partisan guy who wants to assert\nhis own power and impose his will on anyone who gets in his way, including federal judges\xe2\x80\x9d\n(Miller 2009, 146). And as a Democratic member of the House Judiciary Committee told me\nin 2006, \xe2\x80\x9cChairman Sensenbrenner wants to whip up the country against the courts, turning\nthe judges into the enemy. Federal judges feel physically insecure right now\xe2\x80\x9d (Miller 2009, 143).\nSensenbrenner thus led the charge against the federal judiciary. As an employee of the judicial\nbranch told me in 2006, \xe2\x80\x9cThe days when we could count on lawyers in the House to protect judicial\nindependence are long over. Today ideology and party matter much more than whether a member\nhas a law degree\xe2\x80\x9d (Miller 2009, 139).\nUnder Chairman Sensenbrenner, the conservative lawyers on the House Judiciary Committee\n(backed by various socially conservative interest groups) led the attack against the federal courts.\nLiberals on the Judiciary Committee were outraged. Stressing the importance of having liberal\nlawyer-legislators on the Committee to protect the courts, one liberal Member of Congress told\nme in 2006 that \xe2\x80\x9cthere is less respect for the independence of the courts today\xe2\x80\x9d (Miller 2009, 17).\nAnother US Representative told me, \xe2\x80\x9cThe conservatives don\xe2\x80\x99t understand the courts and the legal\nThe Relationship between the Federal Courts and the Two Congressional Judiciary Committees | 257\n\n\x0cideology of the courts very well. They don\xe2\x80\x99t really know the impact of the opinions of the courts,\nand they don\xe2\x80\x99t bother to try to understand judicial rulings. They just attack the courts. Lawyers\n[on the committee] must stand up for the courts when they can\xe2\x80\x99t stand up for themselves\xe2\x80\x9d (Miller\n2009, 207). The presence of ideological extremists on the committee had clear ramifications in this\nera. As a lobbyist described the House committee in the early 2000s, \xe2\x80\x9cThe true believers come to\nthe House Judiciary Committee. There are bomb hurlers on both sides of that committee\xe2\x80\x9d (Miller\n2009, 136).\nThe early 2000s seemed to be the low point in the interinstitutional relationship between\nCongress and the federal courts, in large part because conservative lawmakers (and especially the\nconservative lawyer-legislators on the House Judiciary Committee) went on the attack against\nwhat they perceived to be liberal activist federal judges. Writing about this time period, Baker\ndescribed the interinstitutional relationship among the judicial and legislative branches as \xe2\x80\x9cmutual\nwariness, suspicion, jealousy, and even a bit of spite\xe2\x80\x9d (Baker 2007, 116). In his research, Clark\nfound that the period of 2001\xe2\x80\x938 was one of the highest in modern history for the introduction\nof court-curbing legislation in Congress (Clark 2011, 43). During my 2006 interviews, many of the\ninterviewees described the relationship between the two branches at that time as \xe2\x80\x9cvenomous,\xe2\x80\x9d\n\xe2\x80\x9chostile,\xe2\x80\x9d \xe2\x80\x9ctense,\xe2\x80\x9d \xe2\x80\x9cdeteriorating,\xe2\x80\x9d \xe2\x80\x9ccontentious,\xe2\x80\x9d \xe2\x80\x9c[full of] animosity,\xe2\x80\x9d \xe2\x80\x9cstrained,\xe2\x80\x9d and \xe2\x80\x9cadversarial\xe2\x80\x9d\n(quoted in Miller 2009, 17). One liberal US Representative who served on the House Judiciary\nCommittee told me in 2006 that, \xe2\x80\x9cthe relationship between the Congress and the federal courts is\nat an all-time low\xe2\x80\x9d (Miller 2009, 17).\nThe tension between the courts and Congress received quite a bit of attention from the media\nin that period. For example, in 2005 Newsweek ran a story entitled, \xe2\x80\x9cThe War on Judges,\xe2\x80\x9d which\nconcluded that \xe2\x80\x9cconcern over the rising tide of anti-judge rhetoric has rocked even the Supreme\nCourt. Though judges have been dragged into the culture wars before, lately the animosity\xe2\x80\x94and a\nrange of new efforts to curb judicial power\xe2\x80\x94have reached fever pitch\xe2\x80\x9d (Rosenberg 2005, 23). Even\nJustice Sandra Day O\xe2\x80\x99Connor highlighted these concerns, stating in 2004 that the relationship\nbetween Congress and the federal courts was \xe2\x80\x9cmore tense than at any time in my lifetime\xe2\x80\x9d (quoted\nin Greenhouse 2005, 10). Justice Ginsburg agreed, stating that the judiciary was \xe2\x80\x9cunder assault\nin a way that I haven\xe2\x80\x99t seen before\xe2\x80\x9d (Mauro 2006, A13). As Chief Justice Rehnquist wrote in his\n2004 annual report, \xe2\x80\x9cCriticism of judges has dramatically increased in recent years, exacerbating\nin some respects the strained relationship between the Congress and the federal judiciary\xe2\x80\x9d\n(Rehnquist 2004, 4). Summarizing the alarm that many felt about the rising level of attacks on the\njudiciary during this period, Geyh concluded that \xe2\x80\x9csome have likened the relationship between\ncourts and Congress to a conversation or dialogue, but such measured and civil exchanges do not\ncapture the rough and tumble of the interaction in its ordinary course the way a schoolyard fracas\ndoes\xe2\x80\x9d (Geyh 2011, 23).\nWhen Congress is angry with the federal courts, it has a wide array of weapons in its arsenal to\n258 | The Relationship between the Federal Courts and the Two Congressional Judiciary Committees\n\n\x0cuse against the judiciary. For example, the House and Senate Judiciary Committees often hold\nhearings about Supreme Court and other federal court rulings that their majority members find to\nbe wrongly decided, and this was especially true in the early 2000s. For example, a subcommittee\nof the House Judiciary Committee held a hearing to express their displeasure with the ruling in\nKelo v. City of New London (2005), where the Supreme Court ruled that local governments had the\nright to define the phrase \xe2\x80\x9cpublic use\xe2\x80\x9d in the Taking Clause of the Fifth Amendment. Representing\nthe views of the committee\xe2\x80\x99s opponents to the judicial ruling, Representative Tom Feeney (R-FL)\nsaid that the Kelo decision was \xe2\x80\x9cindicative of the larger trend in the Court to substitute their own\nprejudices and biases for the constitutional language itself\xe2\x80\x9d (US House Judiciary Committee 2005.\nStatement of Representative Feeney). Sometimes the hearings took on broader topics, such as\ncomplaints against the use of foreign court decisions as persuasive precedent in American judicial\nrulings (US House Judiciary Committee 2004).\nSome of the routine interactions between Congress and the courts occur outside of the Judiciary\nCommittees because the legislative branch must approve annual spending for the judiciary. These\nappropriations include funding for construction of new federal courthouses, for staff salaries,\nfor technology and security needs, for judicial libraries, and for other operating expenses. These\nbudget issues can also involve salaries for federal judges (Bell 2018, 45\xe2\x80\x9346). In order to protect the\nindependence of the federal courts, the US Constitution gives all federal judges life terms and it\nprevents Congress from reducing the salaries of federal judges. However, Congress is under no\nobligation to provide annual cost of living increases to them or to pay for law clerks, computers,\nor even air conditioning for the judges.\nIn the early 2000s, some conservative politicians demanded that Congress use its budgetary\npowers against what they perceived to be liberal activist federal judges. For example, in 2005 then\nmajority leader of the House Tom DeLay (R-TX) bellowed, \xe2\x80\x9cWe set up the courts. We can unset\nthe courts. We have the power of the purse!\xe2\x80\x9d (quoted in Klein 2005, A9). At about the same time,\nRepresentative Steve King (R-IA), then a member of the House Judiciary Committee, expressed his\nfrustration with the federal courts by proclaiming, \xe2\x80\x9cWhen their budget starts to dry up, we\xe2\x80\x99ll get\ntheir attention\xe2\x80\x9d (Marcus 2005, A19). Although individual legislators have often threatened to use\ncongressional budget powers against the federal courts in order to retaliate for judicial decisions\nthat they do not like, Congress as a whole has rarely done so.\nAt times, the House Judiciary Committee has considered more severe court-curbing proposals,\nincluding court-stripping. Court stripping means that Congress passes a statute prohibiting the\nfederal courts from hearing a specific case or a specific class of cases. Congress creates federal\ncourt jurisdiction, and many argue that the legislative branch can also take this jurisdiction\naway. In the early 2000s, conservative demands gained momentum to strip the federal courts of\njurisdiction over a variety of types of cases. Conservative lawyer-legislators, who had traditionally\nprotected the federal judiciary, seemed to have switched sides. For example, writing in 2006,\nThe Relationship between the Federal Courts and the Two Congressional Judiciary Committees | 259\n\n\x0cBell and Scott found that lawyers in the House were just as likely to introduce court-curbing\nlegislation as were their nonlawyer colleagues. These scholars also found that House Judiciary\nCommittee members were just as likely to introduce court-stripping legislation as were their\ncolleagues who did not serve on that committee (Bell and Scott 2006, 196). Conservatives in\nthe Senate also seemed supportive of court-stripping. In September 2004 the Senate Republican\nPolicy Committee distributed a report entitled Restoring Popular Control of the Constitution: The\nCase for Jurisdiction-Stripping Legislation. The report stated that \xe2\x80\x9cthe American people must have\na remedy when they believe that federal courts have overreached and interpreted the Constitution\nin ways that are fundamentally at odds with the people\xe2\x80\x99s common constitutional understandings\nand expectations\xe2\x80\x9d (Kyl 2004, 1).\nThe House Judiciary Committee passed a variety of court-stripping measures in the early 2000s,\nmany of which failed to pass the full House. However, when the full Congress did enact courtstripping provisions in the Military Commissions Act of 2006 in order to prevent the high court\nfrom determining the constitutional rights of enemy combatants being held at Guantanamo Bay,\nthe Supreme Court promptly ignored them and declared the underlying act to be unconstitutional\nin Boumediene v. Bush (2008). Thus the constitutionality of court-stripping measures is unclear.\nClearly, however, the intent of these proposals is to change the direction of federal judicial\ndecisions and thus alter the independent voice of the courts in the interinstitutional constitutional\ndialogue.\nIn addition to stripping the courts of jurisdiction over a variety of cases, the House Judiciary\nCommittee discovered some other novel ways to attack the courts. One example came in the form\nof a bill that would have established an inspector general (IG) for the federal judiciary in order to\noversee the courts, investigate ethical problems among federal judges, and conduct investigations\ninto the issue of judges\xe2\x80\x99 overreaching their constitutional powers. In 2005, the then chair of the\nHouse Judiciary Committee, Congressman Jim Sensenbrenner (R-WI), and the then chair of the\nSenate Judiciary Committee, Senator Chuck Grassley (R-IA), proposed such a bill. This legislation\nwas approved by the House Judiciary Committee in September 2006 on a party-line vote, although\nit then died in the full House at the end of the 109th Congress (see Miller 2009, 170\xe2\x80\x9379). The timing\nof this legislation was important. At the time, the House Judiciary Committee had passed a variety\nof court-stripping bills, and there were threats of impeachment of federal judges coming from\nmany committee members.\nCreating an inspector general for the judiciary would be a very aggressive form of congressional\noversight over the independent third branch. Since 1978, Congress has established inspectors\ngeneral in almost all federal agencies to help conduct oversight of the executive branch. The\ninspectors general conduct audits and investigations of agency programs and operations, and\nreport directly to Congress on their findings. An inspector general for the federal judiciary,\nhowever, has never existed. Although the authors of this inspector-general legislation said that it\n260 | The Relationship between the Federal Courts and the Two Congressional Judiciary Committees\n\n\x0cwas not intended to alter the decisions of federal judges, others were less convinced. The proposal\nstruck federal judges as an attack on judicial independence. They saw the main goal of an inspector\ngeneral as providing evidence to be used for the impeachment of federal judges whose decisions\nvarious politicians did not like (see Miller 2009, 170\xe2\x80\x9379). As one lobbyist told me in a 2007 interview,\n\xe2\x80\x9cHaving the IG report information to Congress is a clear form of intimidation of federal judges over\nthe direction of their judicial decisions and a clear impeachment threat against them\xe2\x80\x9d (Miller 2009,\n173). Along these same lines, Justice Ruth Bader Ginsburg declared that \xe2\x80\x9cjudges have good cause\nfor concern\xe2\x80\x9d about the legislation, implying that the sponsors\xe2\x80\x99 intent was to force federal judges to\nissue decisions with which they agreed (Ginsburg 2006, 8). Adding some force to this argument,\nHouse Judiciary Committee Chairman Sensenbrenner said in a speech at Stanford University, \xe2\x80\x9cThe\ninspector general would be able to manage how we punish and who does the punishing for judges\xe2\x80\x99\nmisconduct\xe2\x80\x9d (quoted in Yap 2005, emphasis added). Thus the inspector-general legislation was just\none of several institutional attacks on the federal courts by the House Judiciary Committee when\nit was under Chairman Sensenbrenner\xe2\x80\x99s control.\nAnother extremely aggressive weapon that Congress could use against federal judges is the threat\nof impeachment. The House must first approve articles of impeachment by a majority vote, and\nthen the Senate holds a trial to determine whether the federal official should be removed from\noffice. It takes a two-thirds vote of the Senate to remove a federal judge or federal official. This\nis a drastic measure, and since the failed attempt to impeach Justice Chase in 1804 Congress has\nnever removed a federal judge solely because of their decisions (see Rehnquist 1992). However,\nthreats of impeachment have long been used by legislators against federal judges. For example,\nangry members of Congress introduced two different proposals for the impeachment of Justice\nWilliam O. Douglas, the first in 1953, objecting to his willingness to stay the executions of Ethel\nand Julius Rosenberg, and the second in 1970 over a variety of concerns (see Pacelle 2002, 96).\nThe standards for impeachment of federal judges are unclear. As part of the efforts to impeach\nJustice Douglas, then House minority leader Gerald Ford (R-MI) stated, \xe2\x80\x9can impeachable offense\nis whatever a majority of the House of Representatives considers it to be at any given moment in\nhistory\xe2\x80\x9d (quoted in Kastenberg 2019, 113).\nThe House has brought articles of impeachment against at least fifteen federal judges over\nAmerican history, and at least eight have been removed from office (see Davidson, Oleszke, Lee,\nand Schickler 2018, 359), but none were removed from the bench merely for their political views\nbut instead for criminal and other similar offenses. However, the movement favoring impeachment\nof judges for political reasons kept growing in the early 2000s, especially among conservatives. For\nexample, in the early 2000s, various politicians and interest groups called for the impeachment\nof any judges who dared cite foreign judicial decisions in any form. As one interest group\nspokesperson stated at a conference entitled \xe2\x80\x9cRemedies to Judicial Tyranny\xe2\x80\x9d in 2005, \xe2\x80\x9cif about\n40 [federal judges] get impeached, suddenly a lot of these guys would be retiring\xe2\x80\x9d (quoted in\nMiller 2009, 181). One conservative member of the House Judiciary Committee told me in 2006\nThe Relationship between the Federal Courts and the Two Congressional Judiciary Committees | 261\n\n\x0cthat \xe2\x80\x9cwe need to increase impeachments of federal judges in order to rein in those judges who\ninsist on legislating from the bench\xe2\x80\x9d (Miller 2009, 183). The interest group Justice at Stake found\nthat between 2002 and 2006, there were over 58 impeachment threats against federal judges\n(Brandenburg and Kay 2007, 16\xe2\x80\x9317).\nAlthough Congress has never removed a federal judge merely for their judicial rulings, the mere\nthreat of impeachment remains a weapon some would like to use against federal judges with\nwhom they disagree. Alarmed at the rise in threats of impeachment, one liberal member of the\nHouse Judiciary Committee told me in 2006, \xe2\x80\x9cConstitutional amendments and impeachment are\nmeant to be extremely rare\xe2\x80\x9d (Miller 2009, 180). Another member of the House Judiciary Committee\nagreed, stating, \xe2\x80\x9cThe thought of impeaching a judge because of their rulings is astonishing.\nFortunately, cooler heads always prevail. Congress must be cautious with the use of this awesome\npower\xe2\x80\x9d (Miller 2009, 180). Concerned that threats of impeachment were being used to attempt to\nalter specific court decisions, in May 2005 almost two-thirds of the deans of US law schools sent\na letter to the leadership of both chambers of Congress opposing such actions. In part, the deans\xe2\x80\x99\nletter stated, \xe2\x80\x9cIt is irresponsible and harmful to our constitutional system and to the value of a\njudiciary that is independent, in fact and appearance, when prominent individuals and Members\nof Congress state or imply that judges may be impeached or otherwise punished because of their\nrulings\xe2\x80\x9d (Revesz et al. 2005).\n\nCongress-Court Interactions Today\nWhen I again conducted my interviews in 2017 and 2018, the relationship between the Judiciary\nCommittees and the courts was far less tense. There were certainly moments of potential conflict,\nbut in general, the overt institutional attacks against the courts had clearly subsided. I wanted to\nexplore more comparisons between the two Judiciary Committees and their relationships with\nthe federal bench. The Senate Judiciary Committee seemed much less eager to approve anticourt\nlegislation than its House counterpart.\nAlthough the relationship between Congress and the federal courts is much better today,\nconservative opposition to the judiciary continues. For example, in 2015 a subcommittee of the\nSenate Judiciary Committee held a very broadly entitled hearing called With Prejudice: Supreme\nCourt Activism and Possible Solutions (US Senate Judiciary Committee 2015). The hearing discussed\na variety of ways to limit the voice of the federal courts and its power of judicial review. Individual\nmembers of the Senate Judiciary Committee have also proposed various court-curbing measures.\nWhen running for president in the 2016 presidential primaries against Donald Trump, Senator Ted\nCruz (R-TX), a member of the Senate Judiciary Committee, supported a variety of proposals to\n262 | The Relationship between the Federal Courts and the Two Congressional Judiciary Committees\n\n\x0ccurb the power of the federal bench, including ending life terms by imposing retention elections\nfor US Supreme Court justices. Senator Cruz said then, \xe2\x80\x9cTo see the court behaving as it is today,\nas a super-legislature, simply enacting the policy preferences of the elite judges who are serving\nupon it, is a profound betrayal of their judicial oaths of office and of the constitutional design\nthat has protected our liberty for over two centuries\xe2\x80\x9d (quoted in Zezima 2015). Given his strong\ncriticism of the Supreme Court\xe2\x80\x99s rulings on same-sex marriage and the Affordable Care Act,\ncritics of Senator Cruz have stated that he is advocating \xe2\x80\x9cmassive resistance\xe2\x80\x9d to Supreme Court\ndecisions, much like we saw from conservatives after the Brown v. Board of Education (1954)\nruling. Senator Cruz countered that the current Supreme Court is out of control and needs a\nmassive reorganization and a narrower mission. As the Senator has stated, \xe2\x80\x9cNo one in their right\nmind would establish a system of government where every major contested public policy issue is\ndecided by the decree of five unelected lawyers. That\xe2\x80\x99s not a rational way to govern our society\xe2\x80\x9d\n(quoted in Zezima 2015). President Donald Trump, of course, also routinely attacked federal judges\nin highly personal ways when they issued decisions with which he disagreed (see, e.g., Barnes\n2018).\nHowever, the Senate in general, and the Senate Judiciary Committee in particular, have over the\nyears killed many court-curbing bills, including most of the anticourt legislation passed by the\nHouse Judiciary Committee early in this century. As one Republican former Senate staffer told\nme in 2017, \xe2\x80\x9cThe Senate Judiciary Committee stopped everything coming from the House\xe2\x80\x9d (Miller\n2020, 216). It is worth noting that since Reconstruction, 78 percent of court-curbing legislation\nintroduced in Congress has originated in the House, while only 22 percent started in the US\nSenate (Clark 2011, 26). As one lobbyist concluded, \xe2\x80\x9cThe Senate is slower, more moderate, and more\ndeliberative than the House\xe2\x80\x9d (Miller 2020, 217). Agreeing, one lobbyist said in 2017, \xe2\x80\x9cThe Senate\nis a shield against the hyperactive House\xe2\x80\x9d (Miller 2020, 216\xe2\x80\x9317). The Senate Judiciary Committee\nhas certainly served as the legislative graveyard for anticourt legislation considered by the House\nJudiciary Committee.\nBoth the House and Senate Judiciary Committees are thus creatures of the institutional cultures\nof their respective broader chambers. The House is designed to protect the rights of the majority\nparty and that is certainly true of the House Judiciary Committee as well. The Senate, on the other\nhand, gives more protections to minority party members, as does the Senate Judiciary Committee.\nA Democratic Senate staffer told me, \xe2\x80\x9cThe House Committee is more stage-managed than Senate\nJudiciary,\xe2\x80\x9d meaning that the committee chair has a great deal of power in the House; individual\nSenators have a greater voice on the Senate Committee (Miller 2020, 218). Despite its lawyerlike\nstyle and culture, the House Judiciary Committee nevertheless reflects the highly partisan and\nideologically polarized nature of the broader House of Representatives. A Democratic Senate\nstaffer noted in 2017 that there is no minority voice on the House Judiciary Committee, just as\nthere is little role for members of the minority party in the broader House chamber (Miller 2020,\n217\xe2\x80\x9318).\nThe Relationship between the Federal Courts and the Two Congressional Judiciary Committees | 263\n\n\x0cIt is certainly true that the person who is chairing the Judiciary Committees can have an enormous\neffect on the relationship between the committees and the federal courts. On the House Judiciary\nCommittee, subsequent chairs after Chairman Sensenbrenner were far less antagonistic toward\nthe courts. As one lobbyist mentioned to me in 2018, Chairman Lamar Smith (R-TX), who chaired\nthe Judiciary Committee from 2011 to 2013, was less problematic for the courts than\nSensenbrenner, while Chairman Bob Goodlatte (R-VA), who chaired the Committee from 2013 to\n2019, was quite sympathetic to the courts, and to federal judges in particular (Miller 2020, 248).\nChairman Jerrold Nadler (D-NY), who became chair of the Committee in 2019, has been a strong\nchampion of the federal judiciary and has led the fight against various anticourt measures over\nthe years (see, e.g., Miller 2009, 153). Thus the chair of the committee plays a key role in shaping\nthe interactions between the committee and the courts. As one lobbyist told me in 2018, \xe2\x80\x9cThe key\nfactor of great importance in the relationship between Congress and the courts is the committee\nleadership and their individual attitudes towards the judiciary\xe2\x80\x9d (Miller 2020, 248).\nOn the Senate side, although Senator Chuck Grassley (R-IA) was not a friend of the court when he\nchaired the Senate Judiciary Committee from 2015 to 2019, he could not convince the committee\nto approve his court-curbing agenda, in part because he could not overcome the Senate\xe2\x80\x99s general\nunwillingness to enact extreme and nonincrementalist measures. Senator Grassley also did not\nwant to increase tensions with the other members of the committee on legislative matters\nbecause he was compelled by the party leadership to take certain highly controversial steps\non judicial confirmations. As one lobbyist explained to me in 2017, \xe2\x80\x9cGrassley wants comity and\ncollegiality, and thus he won\xe2\x80\x99t push anti-court legislation in the committee\xe2\x80\x9d (Miller 2020, 243\xe2\x80\x9344).\nThe Senate Judiciary Committee is thus clearly reflective of the broader culture of its parent\nchamber, which means it is harder for the Senate chair to control the approach of the committee,\nunlike the chair of the House Judiciary Committee.\nDuring Chairman Grassley\xe2\x80\x99s tenure, the Senate Judiciary Committee was in the strange situation\nof having nonlawyers leading each party\xe2\x80\x99s membership on the committee. Senator Grassley was\nnot a lawyer, and neither was the Ranking Member of the Committee, Senator Dianne Feinstein\n(D-CA). The lack of lawyers in the leadership of the committee raised some concerns. As a former\nDemocratic staffer on the Senate Judiciary Committee complained in 2017, \xe2\x80\x9cIt is quite obvious that\nChairman Grassley and Ranking Member Feinstein are not lawyers. It is quite odd to have nonlawyers as both the chair and the ranking member\xe2\x80\x9d (Miller 2020, 241). Not everyone was happy\nthat there were so many nonlawyers serving in key roles on the Senate Judiciary Committee.\nOne lobbyist in 2018 was quite critical of Senator Chuck Grassley (R-IA), the former chair of\nthe Committee. This lobbyist stated, \xe2\x80\x9cAs a non-lawyer, Grassley is unaware of the process used\nin the Judicial Conference to make policy\xe2\x80\x9d (Miller 2020, 242\xe2\x80\x9343). An employee of a think tank\nwas equally critical of Senator Grassley\xe2\x80\x99s approach to the judiciary in a 2018 interview with me,\nnoting that \xe2\x80\x9cGrassley only has a vague conception of what courts do. Everything with Grassley is\npersonal, and he has a great deal of antagonism toward federal judges.\xe2\x80\x9d This person continued, \xe2\x80\x9cAs\n264 | The Relationship between the Federal Courts and the Two Congressional Judiciary Committees\n\n\x0ca non-lawyer, Grassley doesn\xe2\x80\x99t understand how the court system actually functions\xe2\x80\x9d (Miller 2020,\n243). A Democratic Senate staffer was more subtle in his criticism of the chairman, \xe2\x80\x9cGrassley is\na non-lawyer, and certain issues matter more to him and matter differently than to the lawyer\nmembers on the committee\xe2\x80\x9d (Miller 2020, 243). When Senator Lindsey Graham (R-SC) took over\nthe chairmanship of the Senate Judiciary Committee in 2019, lawyer-legislators again controlled\nthe leadership of the committee.\nIn conclusion, this chapter has employed Historical Institutionalism analysis involving elite\ninterviewing techniques to examine the relationship and the interactions between the federal\ncourts and the House and Senate Judiciary Committees. At times, the interactions are routine and\neven friendly, but in other periods the relationship can grow extremely tense and even conflictual.\nWho is chairing the committees seems to have a very important impact on the relationship\nbetween the committees and the courts. When the interactions between Congress and the courts\nare the most difficult, that is when we can clearly see the differing institutional approaches\nof the two branches. Thus Congress and the federal courts clearly have different institutional\ncultures, different institutional wills, and different approaches to policy making. The US separation\nof powers system sets the stage for how these two separate, but interdependent, branches of\ngovernment interact.\n\nReferences\nBailey, Michael A., Forrest Maltzman, and Charles R. Shipan. 2011. \xe2\x80\x9cThe Amorphous Relationship\nbetween Congress and the Courts.\xe2\x80\x9d In The Oxford Handbook of the American Congress, edited by\nEric Schickler and Frances E. Lee. New York: Oxford University Press.\nBaker, Ross K. 2007. Strangers on a Hill: Congress and the Court. New York: W. W. Norton.\nBarnes, Jeb. 2004. Overruled? Legislative Overrides, Pluralism, and Contemporary Court-Congress\nRelations. 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Clayton. 1999. \xe2\x80\x9cBeyond Judicial Attitudes: Institutional\nApproached to Supreme Court Decision-Making.\xe2\x80\x9d In Supreme Court Decision-Making: New\nInstitutionalist Approaches, edited by Cornell W. Clayton and Howard Gillman. Chicago:\nUniversity of Chicago Press.\nGinsburg, Ruth Bader. 2006. \xe2\x80\x9cJudicial Independence: The Situation of the U.S. Federal Judiciary.\xe2\x80\x9d\nNebraska Law Review 85:1\xe2\x80\x9315.\nGoldmacher, Shane. 2015. \xe2\x80\x9cTed Cruz: Democratic Supreme Court Justices Rule \xe2\x80\x98Like a Radical\nLeftist Nutcase.\xe2\x80\x99\xe2\x80\x9d Politico, September 18, 2015. https://www.politico.com/story/2015/09/cruzsupreme-court-justices-nutcase-213843.\nGreenhouse, Linda. 2005. \xe2\x80\x9cRehnquist Resumes His Call for Judicial Independence.\xe2\x80\x9d New York\nTimes, January 1, 2005.\nHausegger, Lori, and Lawrence Baum. 1999. \xe2\x80\x9cInviting Congressional Action: A Study of Supreme\nCourt Motivations in Statutory Interpretation.\xe2\x80\x9d American Journal of Political Science 43 (1):\n162\xe2\x80\x9385.\nKalman, Laura. 2017. The Long Reach of the Sixties: LBJ, Nixon, and the Making of the Contemporary\nSupreme Court. New York: Oxford University Press.\nKatzmann, Robert A. 1997. Courts and Congress. Washington, DC: Brookings Institution.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94, ed. 1988. Judges and Legislators: Toward Institutional Comity. Washington, DC: Brookings\nInstitution.\nKastenberg, Joshua E. 2019. The Campaign to Impeach Justice William O. Douglas: Nixon, Vietnam,\nand the Conservative Attack on Judicial Independent. Lawrence: University Press of Kansas.\nKlein, Rick. 2005. \xe2\x80\x9cDeLay Apologized for Blaming Federal Judges in Schiavo Case. But House Leaser\nCall for Probe of \xe2\x80\x98Judicial Activism.\xe2\x80\x99\xe2\x80\x9d Boston Globe, April 14, 2005, A9.\n\nThe Relationship between the Federal Courts and the Two Congressional Judiciary Committees | 267\n\n\x0cKopko, Kyle C., and Erin Krause. 2015. \xe2\x80\x9cShooting from the Hip: Concealed Cameras in the United\nStates Supreme Court.\xe2\x80\x9d Judicature 99:60\xe2\x80\x9367.\nKoszczuk, Jackie, and H. Amy Stern, 2005. Politics in America 2006: The 110th Congress.\nWashington, DC: CQ Press.\nKyl, Jon. 2004. Restoring Popular Control of the Constitution: The Case for Jurisdiction-Stripping\nLegislation. Report from the US Senate Republican Policy Committee, September 28, 2004.\nLovell, George I. 2003. Legislative Deferrals: Statutory Ambiguity, Judicial Power, and American\nDemocracy. New York: Cambridge University Press.\nManning, Jennifer E. 2020. Membership of the 116th Congress: A Profile. Washington, DC:\nCongressional Research Service.\nMarcus, Ruth. 2005. \xe2\x80\x9cBoot the Bench: There\xe2\x80\x99s a New Ferocity in Talk of Firing Activist Judges.\xe2\x80\x9d\nWashington Post, April 11, 2005, A19.\nMartin, Andrew D. 2006. \xe2\x80\x9cStatutory Battles and Constitutional Wars: Congress and the Supreme\nCourt.\xe2\x80\x9d In Institutional Games and the US Supreme Court, edited by James R. Rogers, Roy B.\nFlemming, and Jon R. Bond. Charlottesville: University of Virginia Press.\nMauro, Tony. 2006. \xe2\x80\x9cJustices Fight Back,\xe2\x80\x9d USA Today, June 20, 2006, A13.\nMiller, Arthur S. 1956. \xe2\x80\x9cStatutory Language and the Purposive Use of Ambiguity.\xe2\x80\x9d Virginia Law\nReview 42:23\xe2\x80\x9339.\nMiller, Mark C. 1995. The High Priests of American Politics: The Role of Lawyers in American Political\nInstitutions. Knoxville: University of Tennessee Press.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2004. \xe2\x80\x9cThe View of the Courts from the Hill: A Noninstitutional Perspective.\xe2\x80\x9d In Making\nPolicy, Making Law: An Interbranch Perspective, edited by Mark C. Miller and Jeb Barnes.\nWashington, DC: Georgetown University Press.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2009. The View of the Courts from the Hill: Interactions between Congress and the Federal\nJudiciary. Charlottesville: University of Virginia Press.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2015. Judicial Politics in the United States. Boulder, CO: Westview.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2020. \xe2\x80\x9cA Comparison of the House and Senate Judiciary Committees and Their Relationships\nto the Federal Courts.\xe2\x80\x9d Seton Hall Legislative Journal 44:207\xe2\x80\x9352.\nNeustadt, Richard E. 1980. Presidential Power: The Politics of Leadership from FDR to Carter. New\nYork: Macmillan.\n268 | The Relationship between the Federal Courts and the Two Congressional Judiciary Committees\n\n\x0cOtterbein, Holly. 2020. \xe2\x80\x9cLiberal Groups Back Plan to Expand Supreme Court.\xe2\x80\x9d Politico, June 11,\n2020.\nPacelle, Richard L. 2002. The Role of the Supreme Court in American Politics: The Least Dangerous\nBranch? Boulder, CO: Westview.\nPerkins, Lynette P. 1981. \xe2\x80\x9cMember Recruitment to a Mixed Goal Committee: The House Judiciary\nCommittee.\xe2\x80\x9d Journal of Politics 43:348\xe2\x80\x9364.\nPerry, Barbara A. 1999. The Priestly Tribe: The Supreme Court\xe2\x80\x99s Image in the American Mind.\nWestport, CT: Praeger.\nPerry, H. W., Jr. 1991. Deciding to Decide: Agenda Setting in the United States Supreme Court.\nCambridge, MA: Harvard University Press.\nPickerill, J. Mitchell. 2004. Constitutional Deliberation in Congress: The Impact of Judicial Review in\na Separated System. Durham, NC: Duke University Press.\nPierson, Paul, and Theda Skocpol. 2002. \xe2\x80\x9cHistorical Institutionalism in Contemporary Political\nScience.\xe2\x80\x9d In Political Science: The State of the Discipline, edited by Ira Katznelson and Helen V.\nMilner. New York: W. W. Norton.\nRehnquist, William H. 1992. Grand Inquests: The Historic Impeachments of Justice Samuel Chase and\nPresident Andrew Johnson. New York: William Morrow.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2004. The Year-End Report on the Judiciary. Washington, DC: Supreme Court of the United\nStates.\nRevesz, Richard, et al. 2005. Letter from Deans of US Law Schools to the Leadership of Both\nChambers of Congress. May 4, 2005, http://www.nyu.edu/public/affairs/releases/detail/647.\nRosenberg,\n\nDebra.\n\n2005.\n\n\xe2\x80\x9cThe\n\nWar\n\non\n\nJudges.\xe2\x80\x9d\n\nNewsweek,\n\nApril\n\n25,\n\n2005,\n\n23\xe2\x80\x9327.\n\nhttps://www.newsweek.com/war-judges-116067.\nRubin, Edward L. 2002. \xe2\x80\x9cIndependence as a Governance Mechanism.\xe2\x80\x9d In Judicial Independence at\nthe Crossroads: An Interdisciplinary Approach, edited by Stephen B. Burbank and Barry Friedman.\nThousand Oaks, CA: Sage.\nThornberry, R. Patrick. 2012. \xe2\x80\x9cTelevising the Supreme Court: Why Legislation Fails.\xe2\x80\x9d Indiana Law\nJournal 87:479\xe2\x80\x93503.\nUS House Judiciary Committee. 2004. Appropriate Role of Foreign Judgments in the Interpretation\nof American Law, Hearing before the Subcommittee of the Constitution of the House Judiciary\nCommittee, 108th Cong., March 25, 2004.\nThe Relationship between the Federal Courts and the Two Congressional Judiciary Committees | 269\n\n\x0c\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2005. Supreme Court\xe2\x80\x99s Kelo Decision and Potential Congressional Responses: Hearing before\nthe Subcommittee on the Constitution of the House Judiciary Committee, 109th Cong., September\n22, 2005.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2014. Sunshine in the Courtroom Act of 2013. Hearings before the Subcommittee on Courts,\nIntellectual Property, and the Internet of the House Committee on the Judiciary, 113th Cong., 2nd\nsession, December 3, 2014.\nUS Senate Judiciary Committee. 2015. With Prejudice: Supreme Court Activism and Possible\nSolutions: Hearing before Subcommittee on Oversight, Agency Action, Federal Rights and Federal\nCourts of the Senate Judiciary Committee, 114th Cong.\nWalker, Thomas G., and Deborah J. Barrow. 1985. \xe2\x80\x9cFunding the Federal Judiciary: The\nCongressional Connection.\xe2\x80\x9d Judicature 69: 43\xe2\x80\x9350.\nWhittington, Keith E. 2019. Repugnant Laws: Judicial Review of Acts of Congress from the Founding\nto the Present. Lawrence: University Press of Kansas.\nWilson, Woodrow. 1885. Congressional Government: A Study in American Politics. New York:\nHoughton Mifflin.\nYap, Albert. 2005. \xe2\x80\x9cCongressman Speaks on Legislature, Judiciary.\xe2\x80\x9d Stanford Review, May 20, 2005.\nZezima, Katie. 2015. \xe2\x80\x9cCruz Once Clerked for a Chief Justice, but He\xe2\x80\x99s No Longer a Friend of the\nCourt.\xe2\x80\x9d Washington Post, July 6, 2015.\n\nTable of Cases\nBoumediene v. Bush, 553 U.S. 723 (2008).\nBrown v. Board of Education, 347 U.S. 483 (1954).\nKelo v. City of New London, 545 U. S. 469 (2005).\nLedbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).\nMarbury v. Madison, 5 U.S. 137 (1803).\nTexas v. Johnson, 491 U.S. 397 (1989).\n270 | The Relationship between the Federal Courts and the Two Congressional Judiciary Committees\n\n\x0cUnited States v. Eichman, 496 U.S. 310 (1990).\n\nActivity\nWhat is your opinion on the following discussion questions?\n1. Do you think that Congress should pass legislation to require that the Supreme Court\ntelevise its oral arguments? Or should that decision be left to the Court itself?\n2. Should Congress cut the budgets for the judiciary when its members disagree with a decision\nof the US Supreme Court?\n3. Discuss the issue of court stripping and whether Congress should restrict the type of cases\nthat the federal courts can hear.\n4. Discuss whether you believe that Congress should create an inspector general for the federal\njudiciary.\n5. Should federal judges be impeached and removed from office if the majority in Congress\ndisagrees with their rulings?\n6. Do you think that members of the Senate Judiciary Committee should vote against a\npresidential nominee to the US Supreme Court for purely ideological reasons?\n\nThe Relationship between the Federal Courts and the Two Congressional Judiciary Committees | 271\n\n\x0c12. Senatorial Speeches from Thomas to\nKavanaugh\nA Short Note\nMOLLY STONE, CAROL MORENO, LAUREN SLUSS, RORIE SPILL SOLBERG, AND ERIC WALTENBURG\n\nThe confirmation hearings of then judge Brett Kavanaugh reminded many of the hearings for\nJustice Clarence Thomas. In both situations, there were allegations of sexual misconduct after\nthe initial hearings concluded. In both cases, the Senate Judiciary Committee held an additional\nhearing to investigate the claims. The ideological balance of the Court was also at stake in\nboth confirmations. Clarence Thomas replaced the liberal icon Thurgood Marshall, swinging the\nCourt further to the right; Brett Kavanaugh replaced the moderately conservative swing vote\nAnthony Kennedy, solidifying the Court\xe2\x80\x99s conservative majority. Both men were confirmed by\nincredibly small margins (50\xe2\x80\x9348 and 52\xe2\x80\x9348, respectively). And finally, both confirmation battles\nwere followed by large wins by women in the next national election.\nAlthough these similarities are certainly striking, it is the hearings\xe2\x80\x99 differences that are perhaps\nmore noteworthy and consequential for examining senatorial behavior. Kavanaugh was accused\nof sexual assault as a teen, whereas Thomas allegedly sexually harassed colleagues as an adult\nand supervisor at the Equal Employment Opportunity Commission. Anita Hill, Clarence Thomas\xe2\x80\x99s\naccuser, was questioned directly by the senators in 1991; Christine Blasey Ford, Brett Kavanaugh\xe2\x80\x99s\naccuser, was questioned directly by the Democratic senators, but the Republican senators used\n1\n\na proxy\xe2\x80\x94a female prosecutor with experience in the area of sexual assault. The Thomas hearing\nspurred awareness of sexual harassment (Black and Allen 2001). The Kavanaugh hearings, on the\nother hand, occurred in the wake of the Me Too movement and after several high-profile men\nhad lost significant positions of power and privilege. In 1991, there were only two women in the\nSenate and none on the Judiciary Committee; by 2018, there were twenty-three women sitting as\nsenators and four serving on the Judiciary Committee.\nThese differences resulted in the Kavanaugh hearing presenting a context especially conducive\nto senators making rhetorical overtures both supporting women and recognizing the issues of\nsexual harassment and assault. In this short research note, we leverage the different contexts of\n\n1. Additionally, Clarence Thomas and Anita Hill are Black; Brett Kavanaugh and Christine Blasey Ford\nare white. Both men aggressively defended their innocence; though Thomas racialized the\nproceedings in a way that Kavanaugh could not (i.e., \xe2\x80\x9chi-tech lynching\xe2\x80\x9d)\n272 | Senatorial Speeches from Thomas to Kavanaugh\n\n\x0cthe Thomas and Kavanaugh hearings to explore whether institutional and broader social contexts\naffect the representational and strategic behavior of senators. To do so, we systematically examine\nthe frames senators used in the floor speeches that were made during both confirmations. To\nput it more simply, we investigate whether there is an association between a change in the\ninstitutional and social context and a change in use of rhetorical representation.\nA relative constant of senatorial behavior is the use of floor speeches to declare and explain\npublicly an intended vote (Mayhew 2004; Jacobson and Carson 2019). To be sure, current members\nof Congress have many options for communicating with their constituents and signaling\ncolleagues and interest groups (see Lublin 1999; Tate 2003; Gamble 2011; Minta 2011; Stout 2019).\nThe senatorial speech justifying a vote remains part of this arsenal. Senator Collins\xe2\x80\x99s forty-minute\nfloor speech explaining her support for Kavanaugh is a clear example of the continued viability\n2\n\nof the floor speech as a signaling method. Since at least some senators engaged in this behavior\nin the two time periods described, these speeches are excellent tools to investigate whether the\ndifferent contexts of the hearings resulted in senators responding differently to the issue of sexual\nmisconduct by a Supreme Court nominee.\nScholarly investigations into congressional behavior are legion. Mayhew (1974) provides the\nseminal explanation for why senators explain their votes. Hill and Hurley (2003) show that\nsenatorial speeches are clear examples of representational and strategic behavior, and Osborn\nand Mendez (2010) find that gender affects the content of these speeches. The highly salient and\ncontroversial nature of both the Thomas and Kavanaugh confirmations would spur significant\n3\n\nsenatorial talk for representational and/or strategic ends (Haines, Mendelberg, and Butler 2019).\n\nGiven this research, the emergence of the Me Too movement, and the increase in female senatorial\nrepresentation, we expect to see different frames employed in the Senate floor speeches prior to\nthe Thomas and Kavanaugh confirmation votes (Thomas 1991; Lawless 2015; Wade and BrittanPowell 2001). Specifically, we expect there would be an increase in recognition of the issues\nof sexual harassment and assault or women\xe2\x80\x99s issues more obliquely in the speeches from the\nKavanaugh hearing regardless of a senator\xe2\x80\x99s party.\nAlthough we expect the speeches during the Kavanaugh confirmation overall to contain more\nreferences in support of women and women\xe2\x80\x99s issues, we also anticipate that there will be\ndifferences in the speeches\xe2\x80\x99 recognition of sexual assault, harassment, and support for women in\ngeneral at the level of the individual senator for two reasons. First, the GOP in the current period\nsuffers from a significant deficit when it comes to support from women (Cassese and Barnes 2018;\nBarnes and Cassese 2017). Republican senators, then, signaling their support for women or the Me\n\n2. A transcript of Senator Collins\xe2\x80\x99s speech can be found at Agorakis (2018).\n3. Indeed, both elections following these two confirmations were hailed as years of women (see\nRosenwald 2018; Zhou 2018).\nSenatorial Speeches from Thomas to Kavanaugh | 273\n\n\x0cToo movement in their justification for Kavanaugh would provide some rhetorical representation\nthat could benefit their reelection goals. While some research suggests that politicians might\navoid the topic altogether, fearing the potential backlash any statement might incur (Pietryka\n2012; Milita et al. 2014), it is also clear that if there is an electoral reward or the political context\nsimply requires action, politicians will speak out (Sides 2006; Pietryka 2012). The high-profile\nnature of both of these confirmation events places the situation in the latter category. Thus we\nexpect that the increased rhetorical support for women and women\xe2\x80\x99s issues during the Kavanaugh\nconfirmation should be greater for Republican senators than for Democratic senators.\nSecond, signaling support for women (an increasingly mobilized and potent voting bloc) should\nyield electoral dividends. Thus for those senators facing reelection soon after the hearings, the\nbenefit of speaking out is clear. Accordingly, we expect higher levels of senatorial speech among\nsenators facing reelection directly after the Kavanaugh confirmation than for the Thomas vote.\nTo state each of these hypotheses more plainly, if the Thomas hearing is considered our first time\nperiod and the Kavanaugh hearing the second period, our expectations are as follows:\n\nH1: Prowomen Rhetorict2 > Prowomen Rhetorict1\n\nH2: (Change in Prowomen Rhetoric*GOP)t2 > (Change in Prowomen Rhetoric*Democrat)t2\n\nH3: (Incidence of Speeches*Penultimate Year)t2 \xe2\x89\xa5 (Incidence of Speeches*Penultimate Year)t1\n\nResearch Design\nTo study the senators\xe2\x80\x99 speeches, we identify the underlying messages (i.e., frames) of each speech.\nIndividuals \xe2\x80\x9cactively classify and interpret their life experiences to make sense of them\xe2\x80\x9d using\n\xe2\x80\x9cschemes of interpretation called \xe2\x80\x98primary frameworks\xe2\x80\x99\xe2\x80\x9d (Scheufele 2009; Goffman 1974). Within a\npolitical speech, such as a Senate floor speech, \xe2\x80\x9cthere are ways of\xe2\x80\xa6depicting events\xe2\x80\xa6that depend\non the framework employed\xe2\x80\x9d by the speaker (Scheufele 2009). By framing the issues in each\nspeech and in giving a speech, senators hope to connect to their constituents, and in doing so,\n274 | Senatorial Speeches from Thomas to Kavanaugh\n\n\x0ctake the appropriate position and explain their vote (Mayhew 2004; Jacobson and Carson 2019),\nthereby ensuring their key supporters that they are voting as expected.\nTo begin, all floor speeches made by the senators after the second set of confirmation hearings\nfor either Justice Thomas or Kavanaugh were read and analyzed for frameworks (N = 98; N = 63\nfor Thomas; N = 35 for Kavanaugh). Initially, we content-analyzed the speeches at a granular level,\nidentifying seventeen frames. We then collapsed these frames into ten categories for analysis (see\n4\n\ntable 1). In addition, we gathered data on every senator including age at the time of the speech,\nrace/ethnicity, gender, date of their upcoming reelection, and political party. We also recorded\nthe vote of each senator at the end of the hearing: yea or nay. Our analyses of these data employ\n5\n\nboth contingency tables and bivariate logit analysis with interaction effects.\nFrequency\nThomas\n\nFrequency\nKavanaugh\n\nTotal\n\nQualifications Emphasizes qualifications or credibility of the\nboost\nnominee or testifier\n\n45\n\n23\n\n68\n\nLasting\nimpact\n\nThe influence the hearing will have on the US and\nwomen\n\n44\n\n23\n\n67\n\nQualifications Detracting from credibility or qualifications of the\nattack\nnominee or testifier\n\n35\n\n21\n\n56\n\nProcedure\nfail\n\nAny kind of reference to the shortcomings of the\nprocedure\n\n24\n\n22\n\n46\n\nJudicial\ntemperament\n\nReferences to the conduct of the nominee during\nthe hearing\n\n19\n\n15\n\n34\n\nProcedure\nfair\n\nAny kind of reference to the fairness of the\nprocedure or due process\n\n24\n\n8\n\n32\n\nPartisan\nstrategy\n\nReferences or accusations of strategies employed\nor conspiracies by either party\n\n15\n\n15\n\n30\n\nHarm to\n\nReferences to harm endured by nominee/accuser\nor family\n\n25\n\n5\n\n30\n\n\xe2\x80\x9cI believe her\xe2\x80\x9d\n\nOutright support of testifier\n\n7\n\n9\n\n16\n\nMedia\ninfluence\n\nReferences to mainstream media influencing\nprocedure or vote\n\n14\n\n3\n\n17\n\nFrame\n\nDescription\n\nTable 1: Frequency of frames\n\n4. Tests of intercoder reliability yielded a score of 77 percent agreement before we collapsed the\nframes. Thus our reliability should be higher since the few similar frames were combined to create a\nbroader category\n5. A replication dataset is available from the authors by request.\nSenatorial Speeches from Thomas to Kavanaugh | 275\n\n\x0cFindings\nThe test of our first hypothesis, an increased emphasis or mention of issues of sexual harassment\nor assault, revealed that the frame most closely associated with these salient topics, the I\nHER frame, was not a commonly employed frame. Only 16 percent (N = 16) of the\n\nBELIEVE\n\nspeeches overall contained this frame, and almost half (N = 7) of these occurred during the Thomas\nconfirmation, well before the Me Too movement. The LASTING IMPACT frame, which is more\nobliquely related to these issues and includes references to the weight of the hearings on women\nor the status of women, was more popular, occurring in 68 percent (N = 67) of the speeches\noverall, but again the bulk of its use occurred during the Thomas confirmation (44 versus 23). We\ncalculated the bivariate relationship between the confirmation and these two frames and found a\nsignificant difference between the nominations in the use of the LASTING IMPACT frame (.002),\nthough the direction is not as we anticipated. At first blush, it would seem that we do not find\nsupport for our first hypothesis.\nI BELIEVE HER\nNominee\nThomas\n\nKavanaugh\n\nNo\n\nYes\n\n93\n\n7\n\n93%\n\n7%\n\n91\n\n9\n\n91%\n\n9%\n\nTable 2a: Cross-tabulation: Nominee by frame for Me Too-related frames\n2\n\nPearson chi =.27 Pr=.602\n\nLASTING IMPACT\nNominee\nThomas\n\nKavanaugh\n\nNo\n\nYes\n\n56\n\n44\n\n56%\n\n44%\n\n77\n\n23\n\n77%\n\n23%\n\nTable 2b: Cross-tabulation: Nominee by frame for Me Too- related frames\n2\n\nPearson chi =9.90 Pr=.002\n276 | Senatorial Speeches from Thomas to Kavanaugh\n\n\x0cAnother way we can test our first hypothesis is to examine the relative ranking of the frames.\nThe I\n\nBELIEVE\n\nHER frame ranks last among all the frames during the Thomas hearing but\n\nrises to seventh place during the Kavanaugh period. The LASTING IMPACT frame ranks second\nduring the Thomas hearing and ties for first during Kavanaugh hearings. In other words, while the\nabsolute number of times these frames were employed was higher during the earlier hearing, the\nI BELIEVE HER and LASTING IMPACT frames were actually employed more frequently during\nthe Kavanaugh hearings relative to the other frames (see figure 1). The change in ranking shows\nthat the language used to discuss issues of sexual harassment or assault in these types of speeches\nmay not have changed all that dramatically; however, the emergence of the Me Too movement and\nthe addition of several women to the Senate and the Senate Judiciary Committee seems to have\n6\n\ninspired at least increased reference to the status of women. Thus we claim partial support for\nour first hypothesis.\n\nFigure 1: Ranking of frames\n\nAcross the confirmations, the most frequently used frames, based on raw numbers, were\n\n6. While the data support this statement, we are only examining the speeches on the floor of the\nSenate prior to a vote on a Supreme Court confirmation. We are not suggesting that our findings go\nfurther than that small subset of senatorial speech.\nSenatorial Speeches from Thomas to Kavanaugh | 277\n\n\x0cQUALIFICATIONS BOOST for the nominee or testifier (70 percent), QUALIFICATIONS ATTACK\n(57 percent), PROCEDURAL FAILURE and PROCEDURAL FAIRNESS (47 percent, 33 percent,\nrespectively), JUDICIAL TEMPERAMENT (47 percent), and PARTISIAN STRATEGY (31 percent).\nThese results, we believe, would likely match up with other confirmation hearings and suggest\nthat the unusual aspects of these two hearings did not much alter Senate behavior (see Watson\nand Stookey 1995; Solberg and Waltenburg 2014).\nThomas\n\nParty\n\nI BELIEVE HER\n\nGOP\n\nLASTING IMPACT\n\nNo\n\nYes\n\n40\n\n3\n\n93%\n\n7%\n\nDemocrat 53\n93%\n\n4\n\nGOP\n\nNo\n\nYes\n\n25\n\n18\n\n58%\n\n42%\n\nDemocrat 31\n\n7%\n\n26\n\n54%\n\np>.994\n\n46%\n\np>.708\n\nKavanaugh\n\nParty\n\nGOP\n\nNo\n\nYes\n\n51\n\n0\n\nGOP\n\n100%\nDemocrat 40\n82%\n\n9\n\nNo\n\nYes\n\n45\n\n6\n\n88%\n\n12%\n\nDemocrat 32\n\n18%\n\np>.001\n\n17\n\n65%\n\n35%\n\np>.006\n\nTable 3: Frequency of rhetorical representation frames by party and confirmation\n\nOur second hypothesis relates to partisan difference in behavior across our two cases. We\nanticipated that Republicans would use the I\n\nBELIEVE\n\nHER and/or the LASTING\n\nIMPACT\n\nframes more in the later time period. We employed cross-tabulations and a logit model to test\nour hypothesis. Again, our expectations were not borne out by our data (see table 3). During\nthe Thomas confirmation, there were no significant differences between the parties in the\nemployment of the I BELIEVE HER frame. Although the difference is significant (.006), during the\nKavanaugh confirmation it is the Democrats who utilized this frame appreciably more often. The\nsame pattern repeats for the LASTING IMPACT frame. Significant differences only appear between\nthe parties during the Kavanaugh hearing (.006), with Democrats again setting the pace for using\nthis rhetorically representative frame. For their part, GOP senators used the frame at about the\n\n278 | Senatorial Speeches from Thomas to Kavanaugh\n\n\x0csame rate as their Democrat counterparts during the Thomas confirmation, but the inclusion of\nthe frame in their speeches fell off dramatically during the Kavanaugh confirmation.\nTo further substantiate this finding, we combined the two frames associated with the Me Too\nera\xe2\x80\x94LASTING IMPACT and I BELIEVE HER\xe2\x80\x94and employed a logit model with the senator\xe2\x80\x99s\nparty, the nomination, and an interaction term of those variables as the independent variables\n(see online appendix for the logit estimation results). Figure 2 clearly shows that the likelihood\nof employing these frames decreased for senators in both parties, and especially so for the GOP.\nIndeed, the probability of a Democratic senator making a speech with one of these frames drops\nmeagerly from .49 to .41 while the probability of a Republican senator using this frame decreases\ndramatically, from .44 to .12.\nTherefore, we are again forced to recognize that our hypothesis\xe2\x80\x94that the Republicans would\nincrease their use of frames related to sexual assault and harassment, or at least maintain their\nrecognition of these issues in their senatorial speeches\xe2\x80\x94is incorrect. Despite the changing\ncontext and the Republican Party\xe2\x80\x99s recognition of the gender gap, the use of these frames actually\ndecreased among those few Republican senators that gave a speech justifying their vote on\nKavanaugh. In other words, the Republicans were significantly less likely to use rhetorical\nrepresentation or to reach out to women in their speeches.\n\nFigure 2: Probability of use of Me Too frames by party and nomination\n\nThus far we have found only partial support for one of our hypotheses; however, in doing so\nwe have also uncovered a most intriguing finding: the rather dramatic decline in the number\nSenatorial Speeches from Thomas to Kavanaugh | 279\n\n\x0cof speeches made from 1991 to 2018. During the confirmation hearing for Clarence Thomas, 63\nsenators spoke, while only 35 chose to make a speech to explain their vote before casting their\nvote for or against Brett Kavanaugh. Furthermore, 47.6 percent of the speeches after the Thomas\nhearing were made by Republicans and 52.4 percent were made by Democrats\xe2\x80\x94nearing parity.\nAfter the Kavanaugh hearing, 60 percent of the speeches made were by Democrats, and only 40\n7\n\npercent were made by Republicans. This within-party difference for the GOP is highly significant\n(<.0001). As with the initial comparison, this unexpected finding begs for further investigation.\n8\n\nTherefore, we examined the within-party differences in the use of several of the frames.\n\nWe calculated the bivariate relationship between the confirmation and the frames under\nexamination within each party. As mentioned earlier, the LASTING IMPACT frame, as anticipated\nfrom the earlier results, is highly significant when we examine only GOP speeches (.001), and\nthe I\nfor\n\nBELIEVE\n\nthe\n\nHER frame approaches conventional levels of statistical significance (.055)\n\nRepublican\n\nsenators.\n\nSimilarly,\n\nthe\n\nuse\n\nof\n\ntwo\n\nother\n\nfrequently\n\nemployed\n\nframes\xe2\x80\x94QUALIFICATIONS BOOST, QUALIFICATIONS ATTACK\xe2\x80\x94are significant among the GOP\nbut not the Democrats. The Republicans spent more time in their speeches boosting the nominee\n9\n\nor, in the rare case, the testifier, during the Thomas hearing (63 percent versus 22 percent).\nThe discrepancy is not as large for QUALIFICATIONS ATTACK but runs in the same direction (37\npercent versus 18 percent) and is still notable. The only frame that showed a difference in behavior\nfor the Democrats is PROCEDURE FAIR, and there was a significant difference in the GOP use\nof this frame as well. For both parties, the use of this frame decreased significantly between the\ntwo confirmations. Senators from either party were less likely to tout the attempts at due process\nor characterize the proceedings as fair during the Kavanaugh hearing than during the Thomas\nhearing. In fact, in all frames discussed here, the trend is decreasing employment by the GOP. In\n\n7. We also note that the time taken overall for the two hearings is quite different. Hearings on the\nallegations made against Thomas lasted four days, while the hearing on the Kavanaugh allegations\ntook up only one day.\n8. We also tested whether an upcoming election influenced the likelihood of senators making a speech.\nWe found that pattern for the Thomas hearing; senators whose reelection year was immediately\nfollowing the confirmation vote were more likely to give a speech (GOP = 66 percent; Dem = 62\npercent). This pattern changed during Kavanaugh (GOP = 20 percent; Dem = 38 percent). If we look\nto the following election cycle, we again see that 75 percent of GOP and 53 percent Democrats up\nfor election in the next cycle gave speeches in 1991; whereas, 35 percent of the GOP and 45 percent\nof the Democrats similarly situated gave speeches in 2018. Thus the imperative of reelection, in the\ncurrent time period, does not seem to affect this behavior.\n9. This situation happens only one time in either hearing. During the Thomas hearing, Senator Alan\nSimpson (R-WY) boosted Anita Hill, and during the Kavanaugh hearing, Senator Jon Kyl (R-AZ) did\nthe same for Christine Blasey Ford.\n280 | Senatorial Speeches from Thomas to Kavanaugh\n\n\x0cother words, the GOP spoke less after the Kavanaugh hearings and used fewer frames in those\nscant speeches.\nThese findings all suggest that there has been some shift in the behavior of Republican senators,\neven if it is not the adaptation we initially hypothesized. It is possible that the differences we find\nare still a reflection of typical Congressional behavior, which leads to our last hypothesis. Our third\nhypothesis examines whether senatorial behavior, in terms of making these types of speeches,\nreflects the reelection goal (Mayhew 2004; Jacobson and Carson 2019). Examining the speeches\noverall, we find that about 64 percent (N = 23) of the senators facing reelection immediately after\nthe Thomas confirmation and 33 percent (N = 12) of the senators on the ballot directly after the\nKavanaugh hearings gave speeches justifying their votes. While the high percentage after the\nThomas hearings supports our hypothesis, the significantly smaller percentage before the vote on\nKavanaugh does not.\n\n10\n\nMoreover, senators in their penultimate year are no more likely to give a\n\nspeech following either hearing than their more electorally secure counterparts, an observation\nclearly displayed in figure 3. Therefore, we cannot accept our third hypothesis\xe2\x80\x94that the likelihood\nthat a senator gives a speech is spurred by their concerns about backlash or waning support in the\nelection immediately after the confirmation vote.\n\nFigure 3: Probability of penultimate year speech given: Thomas and Kavanaugh\nconfirmations\n\n10. The different in proportions (two-sample test) is statistically significant (p > |z| = .0001).\nSenatorial Speeches from Thomas to Kavanaugh | 281\n\n\x0cFigure 3 also confirms the dramatic drop-off in the number of senators giving speeches following\nthe confirmation hearing reported earlier. Clearly something changed between the two hearings\nand that change deserves at least a modicum of further investigation. To that end, we further\nexamined the participation by party. Of the senators whose reelection year was immediately\nfollowing the Thomas confirmation vote, 10 Republican senators and 13 Democratic senators gave\na speech (70 percent of the Republicans up for reelection and 68 percent of the Democrats).\nAfter the Kavanaugh hearing, only two Republican senators but 10 Democratic senators who\nwere up for reelection chose to justify their vote (only 25 percent of the Republicans versus 43\n11\n\npercent of the Democrats). While the difference between the two parties is not significant, the\nbehavioral change here is stronger for Republicans than Democrats. We are not suggesting that\nthese findings are pathbreaking; we recognize that we are only looking at two time points and\nthat the changes are in the same direction for both parties. However, it is possible that since\nRepublicans are polarizing more quickly than Democrats (Theriault 2006), they feel less need to\njustify or qualify their vote to an increasingly homogenous base. While this is not strong evidence,\n12\n\nit is revealing and suggests that further investigation into this change in behavior is necessary.\n\nConclusion\nOverall, these results paint a picture of a change of behavior for Senators, and especially the\nRepublicans in terms of how they approach a confirmation vote complicated by issues of sexual\nharassment or assault. Our main finding is that there is no greater discussion or employment of\nframes related to sexual assault or harassment after the Kavanaugh hearings despite the advances\nmade by women and the burgeoning Me Too movement. In fact, the use of the main frames related\nto these issues was less, in absolute terms, during the Kavanaugh than the Thomas confirmation.\nDespite the prevalence of the \xe2\x80\x9cI believe her\xe2\x80\x9d hashtag in the Twittersphere, senators, particularly\nRepublican senators, were not using this or similar phraseology as they explained their vote.\nSimilarly, fewer senators highlighted the historical significance of the Kavanaugh hearing and what\nit means for women and the country moving forward though the use of such language was more\n\n11. This percentage drops to 40 percent if you include the two independent senators running for\nreelection that caucus with the Democrats. While it is true that the class up for reelection in 2018\nwas heavily Democrat (N = 23 or N = 25 respectively), there were still eight GOP seats at risk and five\nincumbents running.\n12. It is also possible that the emergence of social media (i.e., Twitter) means that senators no longer\nneed to justify their vote on the floor of the chamber. We intend to investigate if the senators were\nmore prolific via Twitter or if this behavioral pattern extends to social media as well.\n282 | Senatorial Speeches from Thomas to Kavanaugh\n\n\x0cfrequent than almost any other frame. While both parties saw a large reduction in the number\nof speeches, the decrease in the use of this tactic overall and of the frames of interest here was\nconsiderably one-sided. There was a significant drop in the use of these frames among the GOP\nduring the Kavanaugh hearing when compared to the earlier Thomas hearing. The Democrats,\non the other hand, took the opportunity to employ rhetorical representation in their speeches\nand were the reason these two frames ranked a bit higher in usage in 2018 than in 1991. While\nit is possible that Republican senators simply did not see the Kavanaugh hearing as setting any\nprecedent or impacting history, we find that explanation implausible. It is more likely that GOP\nsenators simply thought the less said the better for their position and party. Indeed, the largest\nbehavior change we find is an appreciable difference in the number of senators making floor\nspeeches; specifically, Republican senators were much less likely to give a speech in 2018 than in\n1991 (see figure 4). To put it concretely, the probability of a Republican giving a speech declines\nfrom .7 during the Thomas hearings to .27 during the Kavanaugh hearings, and this pattern is not\naffected by proximity to reelection as seen in figure 3.\n\nFigure 4: Probability of giving a floor speech by party and confirmation\n\nThis decline in the use of explanatory or position-taking speech could be related to the change\nin the political climate. Pew Research finds that both voters and their representatives are more\nideologically polarized than in previous time periods (Desilver 2014). Political ideology accounts\nfor almost all congressional choices so that the members\xe2\x80\x99 votes have become less about the\nissue at hand and more about falling in line with the party (Theriault 2006). There are likely\n\nSenatorial Speeches from Thomas to Kavanaugh | 283\n\n\x0cmany behavioral consequences of these changes, and we posit that the decrease in senatorial\nspeeches\xe2\x80\x94in position taking\xe2\x80\x94is one of them.\nIt is also possible that in our more polarized era, Republican senators simply do not need to\njustify or qualify their vote. Their constituency is driven more by ideology and such rhetorical\nrepresentation is not as critical today as it was in the 1990s. Additionally, it may be that the\nemergence of social media (i.e., Twitter) means that senators no longer need to justify their vote\non the floor of the chamber. We intend to investigate if the senators were more prolific via Twitter\nor if this behavioral pattern extends to social media as well. While the evidence presented here is\ncertainly not definitive, it is revealing and suggests that further investigation into this change in\nbehavior is warranted.\nFinally, the findings reveal that while the Me Too movement resulted in unprecedented numbers\nof women being elected to Congress, the effect of the influx of these members may not result\nin a definitive change in the overall conversation. The purported LASTING IMPACT discussed by\nmembers during the Thomas confirmation battle did not yield concrete changes in speeches after\nthe Kavanaugh hearings. Senators still used their speeches to attack the credibility of the nominee\nand the testifier (see figure 1), and while the LASTING IMPACT frame moved up in the rankings,\nit was used mostly by one side of the partisan aisle. In other words, the impact of the Thomas\nhearings and indeed the Me Too movement in general did not seem to affect business as usual in\nthe Senate.\n\nReferences\nAgorakis, Stavros. 2018. \xe2\x80\x9cRead the Full Transcript of Sen. Collins\xe2\x80\x99s Speech Announcing She\xe2\x80\x99ll Vote to\nConfirm Brett Kavanaugh.\xe2\x80\x9d Vox, October 5, 2018. https://www.vox.com/2018/10/5/17943276/\nsusan-collins-speech-transcript-full-text-kavanaugh-vote.\nBarnes, T. D., and E. C. Cassese. 2017. \xe2\x80\x9cAmerican Party Women: A Look at the Gender Gap within\nParties.\xe2\x80\x9d Political Research Quarterly 70 (1): 127\xe2\x80\x9341.\nBlack, A., and E. Allen. 2001. \xe2\x80\x9cTracing the Legacy of Anita Hill: The Thomas/Hill Hearings and Media\nCoverage of Sexual Harassment.\xe2\x80\x9d Gender Issues 19 (1): 33\xe2\x80\x9352.\nCassese, E. C., and T. D. Barnes. 2018. \xe2\x80\x9cReconciling Sexism and Women\xe2\x80\x99s Support for Republican\nCandidates: A Look at Gender, Class, and Whiteness in the 2012 and 2016 Presidential Races.\xe2\x80\x9d\nPolitical Behavior: 1\xe2\x80\x9324.\n284 | Senatorial Speeches from Thomas to Kavanaugh\n\n\x0cDesilver, Drew. 2014. \xe2\x80\x9cThe Polarized Congress of Today Has Its Roots in the 1970s.\xe2\x80\x9d Pew Research\nCenter.\n\nhttps://www.pewresearch.org/fact-tank/2014/06/12/polarized-politics-in-\n\ncongress-began-in-the-1970s-and-has-been-getting-worse-ever-since/.\nGoffman, Erving. 1974. Frame Analysis: An Essay on the Organization of Experience. Cambridge, MA:\nHarvard University Press.\nHaines, Pavielle E., Tali Mendelberg, and Bennett Butler. 2019. \xe2\x80\x9c\xe2\x80\x98I\xe2\x80\x99m Not the President of Black\nAmerica\xe2\x80\x99: Rhetorical versus Policy Representation.\xe2\x80\x9d Perspectives on Politics 17 (4): 1\xe2\x80\x9321.\nHill, K. Q., and P. A. Hurley. 2002. \xe2\x80\x9cSymbolic Speeches in the US Senate and Their Representational\nImplications.\xe2\x80\x9d Journal of Politics 64 (1): 219\xe2\x80\x9331.\nJacobson, Gary C., and Jamie L. Carson. 2019. The Politics of Congressional Elections. New York:\nRowman & Littlefield.\nLawless, Jennifer L. 2015. \xe2\x80\x9cFemale Candidates and Legislators.\xe2\x80\x9d Annual Review of Political Science\n18:349\xe2\x80\x9366.\nMayhew, David R. 2004. Congress: The Electoral Connection. New Haven, CT: Yale University Press.\nMilita, Kerri, John Barry Ryan, and Elizabeth N. Simas. 2014. \xe2\x80\x9cNothing to Hide, Nowhere to Run,\nor Nothing to Lose: Candidate Position-Taking in Congressional Elections.\xe2\x80\x9d Political Behavior 36\n(2): 427\xe2\x80\x9349.\nOsborn, T., and J. M. Mendez. 2010. \xe2\x80\x9cSpeaking as Women: Women and Floor Speeches in the\nSenate.\xe2\x80\x9d Journal of Women, Politics & Policy 31 (1): 1\xe2\x80\x9321.\nPietryka, Matthew T. 2012. \xe2\x80\x9cThe Roles of District and National Opinion in 2010 Congressional\nCampaign Agendas.\xe2\x80\x9d American Politics Research 40 (5): 805\xe2\x80\x9343.\nRosenwald, Michael S. 2018. \xe2\x80\x9cNo Women Served on the Senate Judiciary Committee in 1991.\nThe Ugly Anita Hill Hearings Changed That.\xe2\x80\x9d Washington Post, September 18, 2018.\nhttps://www.washingtonpost.com/history/2018/09/18/no-women-served-senate-judiciarycommittee-ugly-anita-hill-hearings-changed-that/?utm_term=.78bb9ed14c15.\nScheufele, Dietram. 2009. \xe2\x80\x9cAgenda-Setting, Priming, and Framing Revisited: Another Look at\nCognitive Effects of Political Communication.\xe2\x80\x9d Mass Communication & Society 3:297\xe2\x80\x93316.\nSides, John. 2006. \xe2\x80\x9cThe Origins of Campaign Agendas.\xe2\x80\x9d British Journal of Political Science 36 (3):\n407\xe2\x80\x9336.\nSolberg, Rorie Spill, and Eric N. Waltenburg. 2014. The Media, the Court and the Misrepresentation:\nThe New Myth of the Court. New York: Routledge.\nSenatorial Speeches from Thomas to Kavanaugh | 285\n\n\x0cTheriault, S. M. 2006. \xe2\x80\x9cParty Polarization in the US Congress: Member Replacement and Member\nAdaptation.\xe2\x80\x9d Party Politics 12 (4): 483\xe2\x80\x93503.\nWade, J. C., and C. Brittan-Powell. 2001. \xe2\x80\x9cMen\xe2\x80\x99s Attitudes Toward Race and Gender Equity: The\nImportance of Masculinity Ideology, Gender-Related Traits, and Reference Group Identity\nDependence.\xe2\x80\x9d Psychology of Men & Masculinity 2 (1): 42\xe2\x80\x9350.\nWatson, George, and John Stookey. 1988. \xe2\x80\x9cSupreme Court Confirmation Hearings: A View from the\nSenate.\xe2\x80\x9d Judicature 71 (4): 186\xe2\x80\x9396.\nZhou, Li. 2018. \xe2\x80\x9cThe Striking Parallels between 1992\xe2\x80\x99s \xe2\x80\x98Year of the Woman\xe2\x80\x99 and 2018, Explained by\na Historian.\xe2\x80\x9d Vox, November 2, 2018. https://www.vox.com/2018/11/2/17983746/year-of-thewoman-1992.\n\nOnline Appendix\n\xe2\x80\xa2 Qualifications or Character Boost: Pointing to qualifications of testifier or nominee to boost\ncredibility.\n\xe2\x80\xa2 Qualifications Attack: Pointing to qualifications or lack thereof to detract from credibility of\nthe nominee or testifier; this includes Ad hominin attacks or attacks on the validity of the\nstory.\n\xe2\x80\xa2 Procedural Failure: Any kind of reference to the shortcomings of the procedure used or\nemployed or how the hearings were administrated.\n\xe2\x80\xa2 Procedural Fairness: Any reference to issues of due process.\n\xe2\x80\xa2 I believe her or him: Any reference suggesting a belief in the nominee or the testifier\xe2\x80\x99s\naccount.\n\xe2\x80\xa2 Lasting Impact: The impact the hearings will have on the US and women in particular.\n\xe2\x80\xa2 Media Influence: Media influence or spinning of the procedures.\n\xe2\x80\xa2 Partisan Strategy (Dem or GOP): Suggestions that one party or the other is conspiring to\ndefeat the nominee for partisan reasons or ignoring the evidence for partisan reasons.\n\xe2\x80\xa2 Harm to Nominee/Accuser: Harm done to the nominee or accuser by the hearings.\n\xe2\x80\xa2 Judicial Temperament: References to the nominee\xe2\x80\x99s conduct during the hearings.\n\n286 | Senatorial Speeches from Thomas to Kavanaugh\n\n\x0cLogit Results\nIteration 0: log likelihood = -138.58943\nIteration 1: log likelihood = -128.61628\nIteration 2: log likelihood = -128.58207\nIteration 3: log likelihood = -128.58206\nLogistic regression\n\nNumber of obs\nLR chi2(3)\n\n=\n\n20.01\n\nProb > chi2\n\n=\n\n0.0002\n\nLog likelihood = -128.58206\n\nPseudo R2\n\n=\n\n200\n\n=\n\n0.0722\n\n----------------------------------------------------------------------------speech |\n\nCoef. Std. Err.\n\nz\n\nP>|z|\n\n[95% Conf. Interval]\n\n------------+---------------------------------------------------------------1.pid | .5177943 .4268795\n\n1.21 0.225\n\n1.nomination | -.6061358 .3940851\n\n-.3188742\n\n-1.54 0.124\n\n1.354463\n\n-1.378528\n\n.1662567\n\n|\npid#|\nnomination |\n1 1 | -1.201973 .6033366\n\n-1.99 0.046\n\n-2.38449 -.0194546\n\n|\n_cons | .3184537 .2682717\n\n1.19 0.235\n\n-.2073491\n\n.8442566\n\n-----------------------------------------------------------------------------\n\nSenatorial Speeches from Thomas to Kavanaugh | 287\n\n\x0cClassroom Activity\nThis short research note examines the frames used by members of the Senate in floor speeches\nwhen explaining their votes on Supreme Court nominees. Senators also have other options for\nspeaking about nominees in the current era\xe2\x80\x94Twitter, Facebook, and other social media platforms\nas well as the tried-and-true press release. Since this writing, there has been at least one\nadditional Supreme Court nomination.\nBreak students up into groups and assign each group a handful of senators. If your class is not\nthat large, focus only on the members of the Judiciary Committee. Also task each group with\nexamining floor speeches, press release/web page announcements, or social media messages.\nHave the students answer and report back to the group on a series of questions, and construct a\nmini-dataset.\n1. Who are your senators? What is their political affiliation?\n2. Did the senator make any pronouncement/speech about the judicial nominee?\n3. What did the senators say about the nominee, the confirmation, or the vote?\na. Possibly give examples of the various statements.\n4. Now, can you identify any similarities or underlying concepts running through posts,\nstatements, or announcements?\n5. Do the frames differ across the type of medium examined?\n6. Do the frames differ across party lines?\n7. Can you identify any other patterns?\n\n288 | Senatorial Speeches from Thomas to Kavanaugh\n\n\x0cInterest Groups\nWhile direct lobbying of the courts and judges violates legal ethics and impugns a court\xe2\x80\x99s or judge\xe2\x80\x99s\nimpartiality and integrity, interest or pressure groups have been active before the courts since\nthe founding, though their rates of participation certainly increased over the course of time. The\nexcitement and grandeur of a test case like Brown v. Board of Ed (1954) or District of Columbia\nv. Heller (2008) often captures student imaginations, interest group activity is more commonly\naccomplished via the amicus curiae, or friend of the court, brief. These briefs offer judges and\njustices a group\xe2\x80\x99s or set of groups\xe2\x80\x99 views on how the law should be interpreted and provide\na bellwether on the salience of a case beyond the immediate parties. Our volume offers two\nscholarly examinations of this activity. First, Professor Laura P. Moyer along with Megan Balcom\nand Alyson Benton, an undergraduate and a graduate student scholar respectively, present an\nimportant examination of how interest group attempts to sway the Supreme Court adjust over\ntime. Examining the amicus curiae briefs filed by antiabortion groups in three major decisions,\nMoyer et al are able to show how groups tailor their arguments to the justices and the temporal\ncontext. The article provides a brief history of the legal fight over abortion and also introduces\nstudents to the concept of frames. Frames, as shown by this contribution, are a useful and\nreplicable data gathering technique that students may find helpful as they pursue their own\nresearch questions. Professor Jenna Becker Kane moves us from the U.S. Supreme Court to the\nsupreme courts of the states. Professor Kane examines what institutional factors spur or allow\ninterest group activity, again via the amicus curiae brief, to flourish in some state high courts but\nnot others. Using a dataset that covers forty years, Kane shows how interest groups target state\nsupreme courts that for one reason or another are more able to assimilate the type of information\noffered, and thus shows that interest groups are careful with their resources and pursue legal\nadvocacy where it is likely to have the intended effect.\nMoyer, Laura P., Megan Balcom, and Alyson Hendricks-Benton. \xe2\x80\x9cOpposition to Abortion, Then and\nNow: How Amicus Briefs Use Policy Frames in Abortion Litigation.\xe2\x80\x9d\nKane, Jenna Becker. \xe2\x80\x9cInstitutional Determinants of Amici Filings across State Supreme Courts.\xe2\x80\x9d\n\nInterest Groups | 289\n\n\x0c13. Opposition to Abortion, Then and Now\nHow Amicus Briefs Use Policy Frames in Abortion Litigation\nLAURA P. MOYER, ALYSON HENDRICKS-BENTON, AND MEGAN BALCOM\n\nThey [the public] felt that pro-life people were not compassionate to women and that we were only \xe2\x80\x9cfetus\nlovers\xe2\x80\x9d who abandoned the mother after the birth. . . . We had to convince the public that we were\ncompassionate to women. Accordingly, we test marketed variations of this theme. Thus was born the slogan\n\xe2\x80\x9cLove Them Both.\xe2\x80\x9d . . . Five or ten years ago my emphasis would have been on the right to life and on saving\nbabies. But now I want to tell those who are involved in women\xe2\x80\x99s helping centers that they are doing what I\nbelieve is the most important single thing that the pro-life movement is doing in our time.\nJack Willke, former director of National Right to Life (quoted in Siegel 2008: 1670\xe2\x80\x931)\n\nEarly in the debate over abortion, opposition to the procedure was primarily described in terms\nthat reflected moral concerns about the protection of \xe2\x80\x9cthe unborn.\xe2\x80\x9d Indeed, much of the media\ncoverage and public discourse describing opposition to abortion since the time of Roe\ncharacterizes the movement as focused on securing rights for all human beings from the moment\nof conception (Huff 2014, 39). However, interviews with activists and movement leaders suggest\nthat antiabortion groups have employed an array of public outreach strategies over time.\nAs seen above, the former director of the antiabortion group National Right to Life described how\nmarket research into public perceptions of his organization led to a shift in its outreach strategy\nin the 1990s.\nBut did this shift in public rhetoric and outreach strategy extend to litigation as well? While\nmost of the literature on social movements and framing focuses on the media, here we focus\non another important venue that social movement organizations use to push for policy change\nand to raise visibility: the Supreme Court. Given the primacy of Supreme Court decisions in the\nabortion debate, it is crucial to understand changes in groups\xe2\x80\x99 use of frames in legal arguments\npresented to the Court. There is every reason to believe that the frames employed in briefs filed\nbefore the Supreme Court represent important strategic decisions by pro-life activists and groups\nin response to signals from the political environment and the current temporal context (Meyer\nand Minkoff 2004; Tilly 1978; Meyer 2004), or what is sometimes called the political opportunity\nstructure. Framing in amicus briefs should align with the messaging strategy employed by the\ngroup in other advocacy contexts and be reflective of the political opportunity structure (Tarrow\n290 | Opposition to Abortion, Then and Now\n\n\x0c1998:77) and adapted somewhat to fit the language of law and the contours of legal doctrine. (We\nexplore this point more in the conclusion.)\n\nThe Framing of Abortion as a Policy Issue\nFraming helps individuals make sense of the world around them by providing a scheme of\ninterpretation (Goffman 1974) that highlights particular aspects for attention while downplaying\nothers (Kahneman and Tversky 1984). For instance, gun rights groups often use the \xe2\x80\x9ccrime control\xe2\x80\x9d\nframe, emphasizing the ineffectiveness of existing gun restrictions in stopping crime (Goss 2006;\nMerry 2016). In their review of the research on framing and social movements, Benford and Snow\n(2000) emphasize that framing is an active, evolving process to construct meaning and that the\nevolution of frames reflects changes in the social movement or among activists. The authors also\nnote that framing is contentious because it \xe2\x80\x9cinvolves the generation of interpretive frames that not\nonly differ from existing ones but that may also challenge them\xe2\x80\x9d (614). This description is an apt\none for the interactive, dynamic process that is the abortion policy space.\nThe pro-life movement began organizing in the 1960s and encompasses a range of groups for\nwhom abortion policy may be either a primary focus (e.g., National Right to Life) or part of a larger\nconstellation of issues (e.g., the Catholic Church; Woliver 1998). Early after Roe v. Wade, morality\nframes emphasized the conflict between the fetus and the mother and characterized women who\nobtained abortions as morally repugnant (Rose 2011; Rohlinger 2002). For instance, in the amicus\nfilings for the 1989 case Webster v. Reproductive Health Services, Woliver describes the framing\nof abortion this way: \xe2\x80\x9cFetuses are never called fetuses, they are always \xe2\x80\x98unborn children,\xe2\x80\x99 \xe2\x80\x98unborn\nlife,\xe2\x80\x99 \xe2\x80\x98prenatal life,\xe2\x80\x99 \xe2\x80\x98children in the womb,\xe2\x80\x99 \xe2\x80\x98human life before birth,\xe2\x80\x99 unborn grandchildren,\xe2\x80\x99 \xe2\x80\x98viable\nunborn,\xe2\x80\x99 \xe2\x80\x98minor child,\xe2\x80\x99 \xe2\x80\x98unborn human life\xe2\x80\x99 (Webster Brief 20)\xe2\x80\x9d (1998, 238).\nHowever, antiabortion groups are not monolithic in their frames or goals (Duff 2014). To illustrate,\nthe American Life League (ALL) emphasized messaging that used frames about morality during\nthe 1980s but differed from other abortion opponents in that the stated goal of the group was\nto eliminate abortions entirely, with no exceptions for abortions to save the life of the mother\n(Rohlinger 2006, 550). This hard-line position caused a conflict with the National Right to Life\nCommittee (NRLC), which ran a media campaign in the early 1980s that was linked to their position\nthat abortion should be allowed to save a woman\xe2\x80\x99s life (Rohlinger 2006, 550). Similarly, Rose\xe2\x80\x99s (2011)\nstudy of literature from antiabortion groups finds that the Elliot Institute supported the reframing\nof abortion to emphasize concern for women. This was done for strategic reasons\xe2\x80\x94namely, the\nbelief that taking a more compassionate stance toward women and emphasizing women\xe2\x80\x99s rights\nwould be more likely to \xe2\x80\x9ctopple the abortion industry\xe2\x80\x9d (Reardon 1996, cited in Rose 2011, 12).\nOpposition to Abortion, Then and Now | 291\n\n\x0cThe Elliot Institute (and an associated activist, David Reardon) were featured in a 2007 article in\nthe New York Times that discussed how they utilized medical and psychological data about the\nnegative impacts of abortion on women and sought out women\xe2\x80\x99s stories illustrating this theme\nthrough a project called Operation Outcry (Bazelon 2007). This shift in framing was intended to\ninfluence public opinion by targeting those who were unmoved by the emphasis on the unborn but\nwho might be persuaded by concern for the woman (Huff 2014; Bazelon 2007). It also capitalized\non what some saw as a key weakness within the pro-choice movement: the tendency to downplay\nthe emotional distress surrounding abortion. In sum, these examples demonstrate the range of\nframes employed and how choices about framing appear to change over time.\nBecause the presence of one movement in a venue tends to force the opposing movement\nto operate in that space (Meyer and Staggenborg 1996; Epstein and Kobylka 1992), there were\nincreasingly strong incentives for antiabortion groups to challenge the near monopoly that prochoice groups had on the use of \xe2\x80\x9cscience\xe2\x80\x9d frames related to abortion. Huff (2014, 61, 78\xe2\x80\x9379)\nnotes that from the mid-1990s on, the antiabortion movement has granted more prominence to\nscientific claims about how women are harmed by abortion, making assertions about negative\nassociations between abortion and breast cancer, mental illness (\xe2\x80\x9cpostabortion syndrome\xe2\x80\x9d), and\ninfertility. Given that judges are not trained to assess statistical or scientific evidence (Ahmed 2015;\nFoster and Huber 1997), antiabortion groups could reasonably make the calculation that utilizing\nmedical and scientific claims would cancel out any advantage in framing held by pro-choice\ngroups in litigation, though it is unclear whether this was a coordinated strategy by movement\nleadership or an opportunity seized by some activists (Huff 2014, 60\xe2\x80\x931).\nWhile this literature relies on a rich body of interviews, primary source materials, and media\ncoverage to investigate the framing of abortion, no existing work has systematically examined\nframing in amicus briefs filed in abortion cases before the Supreme Court over an extended\ntime period. This is unfortunate because amicus briefs fit well into the conception of strategic\nframing processes in which social movement organizations are deliberate and goal oriented in\ntheir selection and use of particular frames (Benford and Snow 2000, 623). As the literature has\ndemonstrated, organized interests tend to work simultaneously on several fronts, and litigation\nis the \xe2\x80\x9csugar on top\xe2\x80\x9d strategy that complements advocacy directed at other forums (Solberg and\nWaltenburg 2006). Given the centrality of court battles to the abortion movement more generally\n(Rosenberg 1995), it is crucial to gain an understanding of how activists portray their cause to the\njudges responsible for creating the national legal policy on abortion. Decisions by the Supreme\nCourt dictate the permissible bounds for future state and federal legislation on abortion and have\nproven to be effective mobilizers for social movement activists as well as the two major political\nparties (Wilcox and Norrander 2002; Abramowitz 1995).\nAgain, we argue that the framing choices employed in amicus briefs reflect strategic decisions\nand signals from the political environment (Meyer and Minkoff 2004). The political opportunity\n292 | Opposition to Abortion, Then and Now\n\n\x0cstructure, a concept from the literature on social movements, helps us understand the ways\nthat context affects the claims made by abortion movement activists and groups and why those\nclaims arise in particular moments in time (Tilly 1978; Meyer 2004). Tarrow describes the political\nopportunity structure as the \xe2\x80\x9cconsistent\xe2\x80\x94but not necessarily formal or permanent\xe2\x80\x94dimensions\nof the political environment that provide incentives for people to undertake collective action by\naffecting their expectations for success or failure\xe2\x80\x9d (1998, 77).\nBelow, we provide a brief timeline of the three cases we use in our analysis as a way to identify\nfactors within the political opportunity structure that should affect the choice of frames used\nby abortion opponents from the 1970s to 2016. We focus on three key aspects of the political\nopportunity structure: (1) the legal frameworks within which amicus groups had to structure their\narguments, (2) changes to the composition of the Supreme Court, and (3) signals from the political\nenvironment about openness to the antiabortion position (Meyer and Minkoff 2004).\n\nRoe and the Trimester Framework\nThe policy space in which pro-life amicus groups were operating in the early 1970s was quite\ndifferent from what we observe today. Abortion had only very recently come into the political\nrealm as a contested public policy issue, and abortion-focused interest groups were still relatively\nyoung organizations. In the decade prior to Roe v. Wade (1973), there had been a sea change in\npublic opinion about abortion, and the momentum clearly appeared to be on the side of those\nwho supported abortion rights (Rosenberg 1995, 396\xe2\x80\x938). Religious politics around abortion were\nalso in a relatively favorable place for abortion rights compared to later years. While Catholic\ngroups opposed state legislative reforms that would liberalize abortion laws, Protestants were\ngenerally more favorably disposed toward such reforms (Greenhouse and Siegel 2011, 2047\xe2\x80\x9348).\nPresident Nixon reportedly sought to capitalize on this Catholic-Protestant divide in order to gain\nthe support of Catholic voters (Greenhouse and Siegel 2011, 2053), reversing some of his earlier\npro-abortion positions. However, the Nixon administration did not take a formal position on the\noutcome of Roe, unlike presidents in future abortion cases (Keck and McMahon 2016).\nAfter lengthy and divisive deliberations among justices on the Supreme Court (Woodward and\nArmstrong 1979), Justice Blackmun delivered the seven to two majority opinion striking down\nTexas\xe2\x80\x99s abortion law, establishing abortion as a constitutional right and setting forth a new\nlegal standard for evaluating abortion restrictions nationwide. The new test, called the trimester\nframework, legalized abortion during the first trimester, keeping the decision between \xe2\x80\x9ca woman\nand her responsible physician.\xe2\x80\x9d During the second trimester, the state had more interest in\nabortion cases and could regulate abortion procedures in \xe2\x80\x9cways that are reasonably related to\nOpposition to Abortion, Then and Now | 293\n\n\x0cmaternal health\xe2\x80\x9d but could not ban the procedure. Finally, during the third trimester, states could\nprohibit abortions unless the life or health of the mother was in danger (410 U.S. 113, 1973).\nBacklash against Roe was swift. Within a week of the decision, proposals to amend the Constitution\nto ban abortion had been introduced in Congress (Rosenberg 1991, 185\xe2\x80\x93188), and Catholic groups\ncalled for the excommunication of the only Catholic justice on the Court, William Brennan\n(Woodward and Armstrong 1979, 287). In the 1980 presidential race, the Republican Party platform\nexpressly advocated for both the overturning of Roe and a constitutional amendment that would\nguarantee \xe2\x80\x9cthe right to life for unborn children\xe2\x80\x9d (Keck and McMahon 2016, 39). The modern era of\nabortion politics had begun, and amicus groups responded accordingly.\n\nCasey and the Undue Burden Standard\nNearly two decades later, when the Supreme Court granted certiorari in Planned Parenthood v.\nCasey (1992), the composition of the Supreme Court, the state of legal doctrine on abortion,\nand the now solidified association between the Republican Party and opposition to abortion all\nappeared very favorable to abortion opponents.\nFirst, since the Court\xe2\x80\x99s controversial decision in Roe v. Wade, six new justices had been appointed\nto the Supreme Court, each by Republican presidents. Five of these appointments replaced a\njustice who had been in the majority of Roe, and William Rehnquist (who was one of the two\nRoe dissenters) was now elevated to the position of chief justice, with opinion assignment power.\nThat left Justice Blackmun, the author of Roe, as the sole remaining member of the Roe majority.\nPresident Bush\xe2\x80\x99s appointments of David Souter (in 1990) and Clarence Thomas (in 1991) also\nsignaled a favorable audience for abortion opponents compared to the justices they replaced\n(Epstein and Walker 2013, 420).\nThese personnel changes, coupled with the state of legal doctrine, presented a political\nopportunity for antiabortion groups. A series of decisions by the Court in the 1980s had\nincreasingly limited Roe\xe2\x80\x99s reach, allowing for more state regulation of the procedure and\nrestrictions on public funding for abortion. Significantly, a closely divided 1989 ruling (Webster v.\nReproductive Health Services) laid the doctrinal groundwork for overruling Roe, saying, \xe2\x80\x9cTo the\nextent indicated in our opinion, we would modify and narrow Roe and succeeding cases\xe2\x80\x9d (492 U.S.\nat 521). Thus momentum seemed to have shifted back in favor of pro-life groups.\nFinally, since the Roe decision, the Republican Party had become increasingly identified with the\npro-life movement, with presidents Ronald Reagan and George H. W. Bush each taking public\npositions in opposition to Roe (but see Tushnet 2005). In Casey, President Bush\xe2\x80\x99s solicitor general\n294 | Opposition to Abortion, Then and Now\n\n\x0ctook the position that the Court should overrule Roe. Known as the \xe2\x80\x9cTenth Justice,\xe2\x80\x9d the solicitor\ngeneral enjoys substantial advantages in litigation before the Supreme Court (Black and Owens\n2012). Although previous solicitors general had taken this position in the decade before Casey,\nthe call to overturn Roe came at a time when the makeup of the Court seemed to all but\nguarantee success (Keck and McMahon 2016). However, this did not come to pass. In Casey,\nJustices O\xe2\x80\x99Connor, Kennedy, and Souter joined together with Blackmun and Stevens to explicitly\nuphold Roe in a five to four decision.\nSeveral aspects of the Casey decision created more space for the usage of frames emphasizing the\nwoman rather than the fetus. One such provision was the exception for abortions necessary for\nthe health or the life of the mother. This allowed women, theoretically, to obtain abortions after\nthe point of viability if medical necessity dictated. Another was the requirement that regulations\non abortion must \xe2\x80\x9cinform the woman\xe2\x80\x99s free choice, not hinder it\xe2\x80\x9d (505 U.S. 833 (1992)). In the\ncase, mandated counseling scripts were deemed acceptable because they furthered the legitimate\ninterest of the state in \xe2\x80\x9creducing the risk that a woman may elect an abortion, only to discover later\nwith devastating psychological consequences, that her decision was not fully informed\xe2\x80\x9d (quoted\nin Rose 2007, 77). Thus the undue burden test created an opportunity for advocates who opposed\nabortion to make successful arguments framed in terms of concern for women\xe2\x80\x99s health, informed\nconsent, and the like. Some scholars have argued that this ruling effectively put an end to the\nhopes of antiabortion groups wishing to overturn Roe, and it also provided an opportunity for both\nsides of the abortion debate to claim that their opponents had prevailed and thus motivate their\nsupporters to mobilize (Meyer and Staggenborg 1996).\n\nAbortion Doctrine in the Obama Era\nBy the time the Supreme Court heard arguments in its Whole Woman\xe2\x80\x99s Health v. Hellerstedt\n(2016), the political context remained relatively favorable for pro-life amicus groups. First, the\ncomposition of the Supreme Court had steadily shifted in a more conservative direction in the\ndecades following Planned Parenthood v. Casey. During his time in office, President George W.\nBush was successful in confirming two conservative justices (John Roberts and Samuel Alito) to\nthe Court. In particular, the appointment of Justice Alito to replace O\xe2\x80\x99Connor, one of the authors\nof the Casey decision, was a victory for abortion opponents because of his more conservative\nstance on abortion (Keck and McMahon 2016). In contrast, President Obama\xe2\x80\x99s judicial nominees\n(Sonia Sotomayor and Elena Kagan) did not change the balance of power on the Court because\nthey replaced two justices (Souter and Stevens) whose voting records generally supported Roe and\nabortion rights.\n\nOpposition to Abortion, Then and Now | 295\n\n\x0cIn addition to the composition of the Supreme Court, legal doctrine also was favorable for abortion\nopponents. In 2016, the Court had not revisited the right to abortion in nine years, with its\nlast decision (Gonzales v. Carhart) upholding a controversial federal law banning \xe2\x80\x9cpartial birth\xe2\x80\x9d\nabortions. In the majority opinion, Kennedy used terminology favored by abortion opponents (e.g.,\n\xe2\x80\x9cabortionist,\xe2\x80\x9d \xe2\x80\x9cunborn child\xe2\x80\x9d) and then expressed concern that women who had abortions would\nsuffer long-term negative mental health consequences (Ahmed 2015; Gerrity 2010). This seemed\nto be an encouraging development for groups hoping to persuade the Supreme Court to limit or\nend abortion.\nAnother important factor was the success of the Republican Party in making big gains at the state\nlevel in 2010. Republican state legislators and state officials used this position of power in the\nyears that followed to propose a number of restrictive abortion laws. For instance, in the year\nprior to Whole Woman\xe2\x80\x99s Health, the Guttmacher Institute reported that thirteen states introduced\nbills that required abortion providers to have admitting privileges at hospitals, and seven states\nenacted other \xe2\x80\x9ctargeted\xe2\x80\x9d regulations for abortion providers. These types of provisions were at\nissue in Whole Woman\xe2\x80\x99s Health. Taking the opposing view, the Obama administration\xe2\x80\x99s solicitor\ngeneral filed a brief that argued that the Texas law and others like it failed to produce \xe2\x80\x9cactual\nhealth benefits\xe2\x80\x9d and created \xe2\x80\x9csubstantial obstacles\xe2\x80\x9d for women seeking abortions, in violation of\nCasey (Brief of the Solicitor General 2016).\nThus when certiorari for Whole Woman\xe2\x80\x99s Health was granted by the Court in November 2015,\nthe composition of the Court remained evenly split between the four liberal justices and the\nfour conservatives, with Kennedy in the middle. For pro-life groups filing amicus briefs, it seems\nlikely that they would continue to identify Kennedy as a key target for their arguments and\nemphasize frames that had played well with him in the past. Of course, this strategy could not have\nanticipated the sudden death of Justice Antonin Scalia, which came after the deadline for amicus\nbriefs to be filed in the case (Denniston 2016). Scalia\xe2\x80\x99s death meant that if the court divided evenly\n(four to four), the decision of the Fifth Circuit upholding the Texas law would stand but would\nnot become national precedent. This would be a minor victory for abortion opponents. Ultimately,\nJustice Kennedy joined the four liberal justices in a five to three vote to strike down the Texas\nabortion regulations, with Justice Breyer (a Clinton appointee) writing the majority opinion.\n\nHypotheses\nWith this background, we draw from the frames identified in the existing literature on the\nantiabortion movement and test for their presence in amicus briefs. The literature suggests that\n\xe2\x80\x9cpro-woman\xe2\x80\x9d frames utilized by abortion opponents may take several forms. We focus on two such\n296 | Opposition to Abortion, Then and Now\n\n\x0cframes here: harm to women and science. The Harm-women frame emphasizes anecdotes and\ntragic stories from women with \xe2\x80\x9cpostabortion syndrome\xe2\x80\x9d or other traumatic abortion experiences\n(described in language intended to pack an emotional punch). An example of this first category is\nan amicus filing from Whole Woman\xe2\x80\x99s Health by \xe2\x80\x9c3,348 women injured by abortion\xe2\x80\x9d that consists\nof a series of harrowing personal anecdotes. The second frame, Science, makes arguments based\non data and medical evidence (intended to counter peer-reviewed studies cited by pro-choice\nadvocates). An example of this frame can be seen in a brief filed by Pro-Life Obstetricians and\nPhysicians for Life in which the amici cite peer-reviewed studies about the medical risks\nassociated with abortions performed in outpatient abortion clinics. Both the Harm-women and\nScience frames shift the rhetorical emphasis from opposition to abortion on moral grounds to\nopposition on evidence-based grounds that include both anecdotal and more systematic data.\nWith these definitions in hand, we next detail a series of hypotheses about the amicus briefs filed\nin each of the four cases in our study. Our first two hypotheses relate to early decisions about\nframing made by antiabortion groups.\n\nH1: In Roe, we expect that the morality frame will be the most common frame used in pro-life amicus briefs.\n\nH2: In Casey, we expect that the morality frame will be the most common frame used in pro-life amicus\nbriefs.\n\nSeveral factors point to a shift in antiabortion strategy after 1992, with an increased focus on\nharm to women and science frames. First, legal doctrine lent itself readily to these frames;\nthe Supreme Court\xe2\x80\x99s decision in Casey emphasized themes of self-determination for women,\n\xe2\x80\x9creasonable\xe2\x80\x9d regulations designed to \xe2\x80\x9cinform\xe2\x80\x9d and not \xe2\x80\x9chinder\xe2\x80\x9d a woman\xe2\x80\x99s \xe2\x80\x9cfree choice,\xe2\x80\x9d and\nmaintained exceptions for late-term abortions necessary to save women\xe2\x80\x99s lives or for their health.\nSecond, antiabortion groups could reasonably conclude that shifting their focus would allow them\nto counter pro-choice arguments about science. Third, the laws being challenged in the 2016 case\nWhole Woman\xe2\x80\x99s Health v. Hellerstedt (couched in terms of making abortion and abortion clinics\nsafer for women) were not well suited for arguments about morality compared to previous cases.\nTogether, these factors suggest the following two hypotheses.\n\nH3: Science and harm to women frames will be used more often in Whole Woman\xe2\x80\x99s Health than in any\nprevious case.\n\nOpposition to Abortion, Then and Now | 297\n\n\x0cH4: Morality frames will be used less often in Whole Woman\xe2\x80\x99s Health than in either Casey or Roe.\n\nData and Methods\nTo investigate our hypotheses, we used LexisNexis and Westlaw to download all available amicus\nbriefs filed in three major abortion decisions: Roe v. Wade (1973), Planned Parenthood v. Casey\n(1992), and Whole Woman\xe2\x80\x99s Health v. Hellerstedt (2016). We then identified the position of each brief\nand limited the sample only to antiabortion briefs, resulting in fifty-nine amicus briefs for content\nanalysis. The three cases selected allow us to compare rulings over the full time span of abortion\nlitigation in the Supreme Court to date (i.e., Roe is the first, Casey is roughly at the midpoint, and\nWhole Woman\xe2\x80\x99s Health is the most recent).\nThe Supreme Court lays out very precise guidelines for the structure of an amicus brief in its\nofficial rules, ensuring consistency across texts. Rather than analyze the entire brief (including\nextraneous information like the table of contents, table of authorities, and the attorneys\xe2\x80\x99 contact\ninformation), we trimmed each brief so that the content analysis included only the summary of\nargument, arguments, and conclusion sections. This decreased the overall denominator of words\nand allowed us to focus on only the parts of the brief where amici made legal arguments.\nOnce these briefs were downloaded and trimmed, we utilized two automated content-analysis\nsoftware programs to process the texts: WordStat and Linguistic Inquiry and Word Count (LIWC).\nWordStat allows users to identify the most commonly used words in a text, among other features.\nLIWC has been used in both nonlegal (Merry 2016) and legal contexts (Owens, Wedeking, and\nWolfarth 2013). The software program processes text files and produces a battery of indicators\nrelated to linguistic and psychological attributes of the writing. Crucially for our purposes, it also\nallows the user to develop customized dictionaries.\nWe used WordStat first to generalize a master list of all complete words used in the amicus briefs\nand from that list created three custom LIWC dictionaries related to the following frames: (1)\nMorality, (2) Harm-women, and (3) Science. (Full dictionaries for each of these frames appear in the\nappendix.) The first category includes language linked to the morality frame (e.g., \xe2\x80\x9cunborn,\xe2\x80\x9d \xe2\x80\x9ckill,\xe2\x80\x9d\n\xe2\x80\x9cinfant,\xe2\x80\x9d \xe2\x80\x9cmurder\xe2\x80\x9d), while the second focuses on negative health consequences for women who\nobtain abortions (e.g., \xe2\x80\x9cdepression,\xe2\x80\x9d \xe2\x80\x9ccomplication,\xe2\x80\x9d \xe2\x80\x9cmental health,\xe2\x80\x9d \xe2\x80\x9cregret\xe2\x80\x9d). The last category\nemphasizes scientific evidence (e.g., \xe2\x80\x9cpeer review,\xe2\x80\x9d \xe2\x80\x9cdata,\xe2\x80\x9d \xe2\x80\x9cevidence,\xe2\x80\x9d \xe2\x80\x9caccepted medical practice\xe2\x80\x9d).\nThe dependent variables for our analysis reflect the percentage of words from the argument\n298 | Opposition to Abortion, Then and Now\n\n\x0cportion of the brief that fall into the three frames described. Figure 1 displays the distribution\nof each frame in each case using a box plot, which shows the minimum and maximum values as\nwell as the twenty-fifth percentile, fiftieth percentile (also called the median), and seventy-fifth\npercentile values. This is helpful because it allows us to see how much variation there is across\npro-life briefs in the use of a particular frame; for instance, in Roe, we can see that the most\nvariation in frame use across briefs comes from the Morality frame (because the box is longer than\nfor the other two frames). This means that pro-life briefs filed in Roe varied rather substantially\nin how heavily they used Morality language. In contrast, in Whole Woman\xe2\x80\x99s Health, the distance\nbetween the bottom of the box (twenty-fifth percentile value) and the top of the box (seventy-fifth\npercentile value) is fairly similar across frames.\n\nFigure 1: Variation in Frames in Pro-life Amicus Briefs. Note: Figure is a box plot (also known as a\nbox-and-whiskers plot). The number of pro-life amicus briefs for each case is as follows: Roe (5), Casey (20), and\nWhole Woman\xe2\x80\x99s Health (34).\n\nTo evaluate our hypotheses about how often these frames are used in amicus briefs, we use a\nstatistical test called a t-test. We want to know whether, on average, the use of a particular frame\nOpposition to Abortion, Then and Now | 299\n\n\x0cin a single case is different from the usage of other frames (in the same or other cases), and we\nwant to know whether any differences are statistically different from zero. The results of our\nanalyses are presented in several ways; in the text, we provide standard information about ttests (including the t-value, degrees of freedom, and the significance for a 95 percent confidence\ninterval with a two-tailed test). We also present results in graphical form, which may be more\nintuitive to interpret. Figure 2 shows three bar graphs, which allows for comparisons of frames\nwithin a single case; there, significant differences between frames are denoted with an asterisk.\nIn figure 3, where we compare the use of frames across cases, we have graphed the mean value\n(also called a point estimate) for each frame as well as the uncertainty around that value (i.e., the\nconfidence interval). A good rule of thumb for interpreting graphs like this is to check whether\nthe confidence intervals for different point estimates overlap. If they do not, we can say that the\ndifference between the two mean values is statistically significant at a 95 percent level. However,\nif the confidence intervals do overlap, this does not automatically mean that the difference is not\nsignificant (Schencker and Gentleman 2001). Rather, it means that we should check the p-value to\nsee whether it is greater than .05, which would indicate the means are not significantly different\nfrom each other. For this reason, we discuss both the p-value and the confidence intervals as\nshown in the graphs.\n\nFigure 2: Within-Case Comparison of Frames. Notes: Results shown are from t-tests with assumed unequal\nvariance. * denotes that the mean for that frame was significantly different from the Morality frame mean\nwithin the same case (at p < .05, two tailed-test). The number of pro-life amicus briefs for each case is as follows:\nRoe (5), Casey (20), and Whole Woman\xe2\x80\x99s Health (34).\n\n300 | Opposition to Abortion, Then and Now\n\n\x0cFraming Analysis\nMoving now to our analyses, the first two hypotheses predict that the Morality frame will be the\nmost commonly used frame in both Roe and Casey. Figure 2 allows us to compare how often frames\nare used within each case, and we can see that in Roe, an average of about 3.4 percent of words\nfall into the Morality frame compared to 1.0 percent for Harm-women and about 0.7 percent for\nScience. The results of the t-tests for Roe show that the Morality frame is significantly different\nfrom Science\n\n, but the difference between Morality and Harm-women\n\nbarely misses the p < .05 threshold for significance\n\n. As such,\n\nHypothesis 1 receives only partial support.\nLooking next to Casey, we see again that the Morality frame is used more often than the other\ntwo frames. T-tests confirm that the differences between both Morality and Harm-women\nand Morality and Science\n\nare statistically\n\nsignificant. This may seem surprising given that the bars for frame use show more extreme\ndifferences in Roe than in Casey. However, it is important to note that because the number of\namicus briefs in Casey is much larger (twenty) than Roe (five), it is easier to achieve statistical\nsignificance. (The smaller the number of observations, the harder it is to show that differences are\nnot attributable to chance.) Taken together, these findings indicate strong support for Hypothesis\n2, which predicted that the morality frame would be used more frequently than other frames in\nCasey.\n\nOpposition to Abortion, Then and Now | 301\n\n\x0cFigure 3: Comparison of Frames across Cases. Notes: Results shown are from t-tests with assumed unequal\nvariance. Dots are mean values and range bars indicate 95% confidence intervals. Where confidence intervals\ndo not overlap, the two values are significantly different from each other at p < .05 (two-tailed test).\n\nOur third hypothesis posited that antiabortion amici would use Science and Harm-women frames\nmore often in Whole Woman\xe2\x80\x99s Health than in either previous case. This requires us to compare\nacross cases, as seen in figure 3. Recall that the dots represent the mean values, and the range\nbars show the upper and lower bounds of a 95 percent confidence interval. Starting with the\nScience frame, we can see that it was indeed used more often in Whole Woman\xe2\x80\x99s Health than\nin either previous case and that there appears to be a steady upward trend in its use. Because\nthe confidence intervals for Whole Woman\xe2\x80\x99s Health do not overlap with either Casey\nor Roe\n\nand the p-values for each are less\n\nthan .05, we can say that this difference is statistically significant at the 95 percent level. Note,\nhowever, that in spite of the overlapping error bars for Roe and Casey, the difference between the\ntwo cases is actually significant at p < .05. This means that the Science frame is increasingly used\nby antiabortion amici over the time period shown.\n\n302 | Opposition to Abortion, Then and Now\n\n\x0cNext, we look at the Harm-women frame as shown in figure 3. We want to know whether amici\nframed abortion more in terms of harm to women in the 2016 Whole Woman\xe2\x80\x99s Health case\nthan in the two earlier cases. The graph shows us that the difference is significant both when\ncomparing Whole Woman\xe2\x80\x99s Health to Casey\nto Roe\n\nand when comparing it\n\n, although not when comparing Casey and Roe to each other (p\n\n= .68). As such, Hypothesis 3 is supported with respect to both frames.\nThe last hypothesis focuses on use of the Morality frame across cases. As expected, the point\nestimates show that abortion opponents used this frame the least often in amicus filings for\nWhole Woman\xe2\x80\x99s Health and more often in both older cases. Because the confidence intervals for\nWhole Woman\xe2\x80\x99s Health and Casey do not overlap, we can say that this difference is statistically\nsignificant at a 95 percent level\n\n. But while there appears to be quite a\n\nlarge difference between the point estimates for Whole Woman\xe2\x80\x99s Health and Roe, the confidence\nintervals overlap, and the difference actually fails to reach the p < .05 threshold for statistical\nsignificance\n\n. Again, this is likely a consequence of the increased\n\nuncertainty around the point estimate for Roe because of its small number of observations. Thus\nHypothesis 4 is supported with respect to Casey but not for Roe.\n\nDiscussion\nThe Supreme Court has become an increasingly important forum for social movements and their\nassociated interest groups to make policy and to demonstrate \xe2\x80\x9caction\xe2\x80\x9d on issues of interest (Owens\nand Epstein 2005). While the conservative legal movement generally eschewed public interest\nlitigation as a focus of their efforts through the 1970s and into the 1980s, the \xe2\x80\x9csecond wave\xe2\x80\x9d of\nthe movement has been more proactive in targeting the courts as a means to achieve policy\ngoals (Teles 2008). Abortion opponents now routinely utilize the opportunity to file amicus curiae\nbriefs in abortion cases coming before the Supreme Court. This presents scholars with a rich\nbody of texts from which to analyze one of the most contentious political issues in contemporary\nAmerican politics.\nThe results of our study also highlight distinctive changes in the way that abortion opponents\nframe the issue, particularly when contrasting the 2016 Supreme Court decision (Whole Woman\xe2\x80\x99s\nHealth v. Hellerstedt) with earlier decisions from the 1970s and 1990s. In Roe v. Wade and Planned\nParenthood v. Casey, abortion opposition was largely framed in terms of morality language, but by\n2016, use of the Morality frame had declined and was used less than it ever had been before. At the\nsame time, we observe a rise in the use of the Science frame by abortion opponents. Briefs using\nthe Science frame focused their arguments on findings from medical studies (though not always\nOpposition to Abortion, Then and Now | 303\n\n\x0cpeer reviewed), regulatory agencies like the FDA, and medical experts as a means to demonstrate\nlegitimacy.\nOpposition to abortion in terms of harm to women also emerges as a newer emphasis for pro-life\ngroups in Supreme Court litigation. Our results show that this frame was used significantly more\noften in amicus briefs filed in Whole Woman\xe2\x80\x99s Health than in amicus briefs for Casey or Roe. This\nmakes sense as a response to post-Casey legal doctrine on abortion, which directs attention to\nthe relationship between abortion regulations and women\xe2\x80\x99s health, and seems to pair well with\nan increased emphasis on Science frames. Moreover, the challenged law in Whole Woman\xe2\x80\x99s Health\nemphasized the medical necessity of its various regulatory provisions, so it seems natural that\ngroups defending the state\xe2\x80\x99s position would adopt similar language.\nLike all studies, there are limitations to our findings. First and foremost, our conclusions are\nlimited by the small number of cases analyzed, and future research should examine how framing\nchoices by both antiabortion and pro-choice groups have varied over time. Along these lines,\nit could be instructive to compare the framing used in press releases and other public-focused\ncommunication materials with amicus briefs on a group-by-group basis. This would provide\nsupport for our assumption that messaging is consistent across contexts and would allow for\nexploration about variation across groups on the same side of the issue. Additionally, because\nour interest is in identifying the strategies and frames used in amicus briefs, we cannot weigh\nin on what influence these frames had on the substance of the Supreme Court\xe2\x80\x99s ruling in those\ncases, though the literature suggests such influence is likely (Collins, Corley, and Hamner 2015).\nWe also acknowledge that some frames necessarily work better than others in particular cases\nand that groups\xe2\x80\x99 decisions about how to frame their legal arguments are in some ways responsive\nto how the movement has been able to shape the kind of legislation that states (and the federal\ngovernment) have enacted on abortion. In each new instance of litigation, amici must decide how\nto adjust their arguments to the contours of the case facts and the statutory language so as to\nprovide maximum advantage. Groups also may update their approach for the next case based\non how they fared for the previous case and on how influential justices ruled (e.g., O\xe2\x80\x99Connor or\nKennedy). Finally, there may be other factors in the political opportunity structure that influence\nstrategic decisions about framing opposition to abortion; for instance, future work could examine\nchanges in public opinion and media coverage of abortion during this time period.\nAfter their 2016 loss in Whole Woman\xe2\x80\x99s Health, antiabortion groups may be forced to reevaluate the\nbest rhetorical strategy moving forward. Public policy scholars have generally classified abortion\npolicy under the rubric of morality policy, which is considered to be \xe2\x80\x9ceasy\xe2\x80\x9d because it does not\nrequire the public to comprehend highly technical information (Gerrity 2010: 64). If both sides\nresort to using science as a dominant frame, this may change the dynamics of abortion as a policy\nissue, with judges and the general public not always able to decipher technical language, interpret\nstatistical significance, or determine the quality of the scientific research being presented. Would\n304 | Opposition to Abortion, Then and Now\n\n\x0csuch an approach be successful in convincing those in the public who are neither fully opposed\nnor fully supportive of abortion? Or would it be less persuasive than an approach that emphasized\nthemes of harm to women? Clearly, the answer to these questions depends in large measure on\nhow the composition of the Supreme Court changes over the near term and how such changes\naffect their resolution of future cases involving the constitutional right to abortion.\n\nCases\nGonzales v. Carhart, 550 U.S.124 (2007). https://supreme.justia.com/cases/federal/us/550/124/\nPlanned Parenthood v. Casey, 505 U.S. 833 (1992). https://supreme.justia.com/cases/federal/us/\n505/833/\nRoe v. Wade, 410 U.S. 113 (1973). https://supreme.justia.com/cases/federal/us/410/113/\nWebster v. Reproductive Health Services, 492 U.S. 490 (1989). https://supreme.justia.com/cases/\nfederal/us/492/490/\nWhole Woman\xe2\x80\x99s Health v. Hellerstedt, 579 U.S. __ (2016). https://supreme.justia.com/cases/\nfederal/us/579/15-274/\n\nReferences\nAbramowitz, Alan. 1995. \xe2\x80\x9cIt\xe2\x80\x99s Abortion, Stupid: Policy Voting in the 1992 Presidential Election.\xe2\x80\x9d\nJournal of Politics 57: 176\xe2\x80\x9386. (\xe2\x86\xb5 Return)\nAhmed, Aziza. 2015. \xe2\x80\x9cMedical Evidence and Expertise in Abortion Jurisprudence.\xe2\x80\x9d American Journal\nof Law & Medicine 41: 85\xe2\x80\x93118. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nBazelon, Emily. 2007. \xe2\x80\x9cIs There a Post-Abortion Syndrome?\xe2\x80\x9d The New York Times. January 21\nhttp://www.nytimes.com/2007/01/21/magazine/21abortion.t.html (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nBenford, R., & Snow, D. (2000). Framing Processes and Social Movements: An Overview and\nAssessment. Annual Review of Sociology, 26, 611-639. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nOpposition to Abortion, Then and Now | 305\n\n\x0cBlack, Ryan C., Owens, Ryan J. 2012. The Solicitor General and the United States Supreme Court:\nExecutive branch influence and judicial decisions. New York: Cambridge University Press. (\xe2\x86\xb5\nReturn)\nCollins, Paul M., Jr., Pamela Corley, and Jesse Hamner. 2015. \xe2\x80\x9cThe Influence of Amicus Curiae Briefs\non U.S. Supreme Court Opinion Content.\xe2\x80\x9d Law & Society Review 49(4): 917\xe2\x80\x93944. (\xe2\x86\xb5 Return)\nDenniston, Lyle. 2016. \xe2\x80\x9cArgument Preview: New Look at Abortion after Nine Years.\xe2\x80\x9d Scotusblog\n[blog] February 24. http://www.scotusblog.com/2016/02/argument-preview-new-look-atabortion-after-nine-years/ (\xe2\x86\xb5 Return)\nDuff, April N. 2014. \xe2\x80\x9cConstructing Abortion\xe2\x80\x99s Second Victim: Science and Politics in the\nContemporary Antiabortion Movement.\xe2\x80\x9d PhD. Dissertation. https://escholarship.org/uc/item/\n4rr2f96t (\xe2\x86\xb5 Return)\nEpstein, Lee, and Joseph F. Kobylka. 1992. The Supreme Court and Legal Change: Abortion and the\nDeath Penalty. Chapel Hill, NC: The University of North Carolina Press. (\xe2\x86\xb5 Return)\nth\n\nEpstein, Lee and Thomas G. Walker. 2013. Constitutional Law: Rights, Liberties, and Justice (8\n\ned.).\n\nThousand Oaks, CA: SAGE. (\xe2\x86\xb5 Return)\nFoster, Kenneth R. and Peter W. Huber. 1997. Judging for Science: Scientific Knowledge and the\nFederal Courts. Cambridge, Mass.: The MIT Press. (\xe2\x86\xb5 Return)\nGerrity, Jessica C. 2010. \xe2\x80\x9cBuilding a Framing Campaign: Interest Groups and the Debate on PartialBirth Abortion.\xe2\x80\x9d In Schaffner, Brian F., and Patrick J. Sellers, eds. Winning with Words: the Origins\nand Impact of Political Framing. Routledge. (pp.60\xe2\x80\x9377). (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nGoffman, Erving. 1974. Frame Analysis: An Essay on the Organization of Experience. Cambridge, MA:\nHarvard University Press. (\xe2\x86\xb5 Return)\nGoss, Kristen A. (2006). Disarmed: The Missing Movement for Gun Control in America. Princeton\nUniversity Press. (\xe2\x86\xb5 Return)\nGreenhouse, Linda, and Reva B. Siegel. 2011. \xe2\x80\x9cBefore (and After) Roe v. Wade: New Questions about\nBacklash.\xe2\x80\x9d Yale Law Journal 120: 2028. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nHuff, April. (2014). \xe2\x80\x9cConstructing Abortion\xe2\x80\x99s Second Victim: Science and Politics in the\nContemporary Antiabortion Movement.\xe2\x80\x9d San Diego: University of California. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5\nReturn 2) (\xe2\x86\xb5 Return 3) (\xe2\x86\xb5 Return 4)\nKahneman, Daniel and Amos Tversky. 1984. \xe2\x80\x9cChoices, Values, and Frames.\xe2\x80\x9d American Psychologist\n39(4): 341\xe2\x80\x93350. (\xe2\x86\xb5 Return)\n306 | Opposition to Abortion, Then and Now\n\n\x0cKeck and McMahon 2016. \xe2\x80\x9cWhy Roe Still Stands: Abortion Law, the Supreme Court, and the\nRepublican Regime.\xe2\x80\x9d Studies in Law, Politics & Society 70 (2016): 33\xe2\x80\x9383. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\n(\xe2\x86\xb5 Return 3) (\xe2\x86\xb5 Return 4)\nMerry, Melissa K. 2016. \xe2\x80\x9cConstructing Policy Narratives in 140 Characters or Less: the Case of Gun\nPolicy Organizations.\xe2\x80\x9d Policy Studies Journal 44(4): 373\xe2\x80\x93395. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nMeyer, David S. 2004. \xe2\x80\x9cProtest and Political Opportunities.\xe2\x80\x9d Annual Review of Sociology 30: 125\xe2\x80\x93145.\n(\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nMeyer, David S., and Debra C. Minkoff. 2004. \xe2\x80\x9cConceptualizing Political Opportunity.\xe2\x80\x9d Social Forces\n82(4): 1457\xe2\x80\x931492. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3)\nMeyer, David S., and Suzanne Staggenborg. 1996. \xe2\x80\x9cMovements, Countermovements, and the\nStructure of Political Opportunity.\xe2\x80\x9d American Journal of Sociology 101(6): 1628\xe2\x80\x931660. (\xe2\x86\xb5 Return 1)\n(\xe2\x86\xb5 Return 2)\nOwens, Ryan J. and Lee Epstein. 2005. \xe2\x80\x9cAmici Curiae During the Rehnquist Years.\xe2\x80\x9d Judicature 89:\n127\xe2\x80\x93132. (\xe2\x86\xb5 Return)\nOwens, Ryan, Justin Wedeking, and Patrick Wolfarth. 2013. \xe2\x80\x9cHow the Supreme Court Alters\nOpinion Language to Evade Congressional Review.\xe2\x80\x9d Journal of Law & Courts 1(1): 35\xe2\x80\x9359. (\xe2\x86\xb5 Return)\nRohlinger, Deana A. (2002). Framing the Abortion Debate: Organizational Resources, Media\nStrategies, and Movement-Countermovement Dynamics. The Sociological Quarterly, 43(4),\n479-507. (\xe2\x86\xb5 Return)\nRohlinger, Deana, A. (2006). Friends and Foes: Media, Politics, and Tactics in the Abortion War.\nSocial Problems, 53(4), 537-561. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nRose, Melody. 2007. Safe, Legal, and Unavailable? Abortion Politics in the United States. CQ Press:\nWashington, D.C. (\xe2\x86\xb5 Return)\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2011. Rose, Melody. \xe2\x80\x9cPro-life, pro-woman? Frame extension in the American antiabortion\nmovement.\xe2\x80\x9d Journal of Women, Politics & Policy 32(1): 1\xe2\x80\x9327. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3)\nRosenberg, Gerald. 1991. The Hollow Hope: Can Courts Bring About Social Change? University of\nChicago Press: Chicago. (\xe2\x86\xb5 Return)\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 1995. \xe2\x80\x9cThe Real World of Constitutional Rights: The Supreme Court and the Implementation\nof the Abortion Decisions.\xe2\x80\x9d In Contemplating Courts, edited by Lee Epstein, 390-415. CQ Press:\nWashington, D.C. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\n\nOpposition to Abortion, Then and Now | 307\n\n\x0cSiegel, Reva. 2008. \xe2\x80\x9cThe Right\xe2\x80\x99s Reasons: Constitutional Conflict and the Spread of WomanProtective Antiabortion Argument.\xe2\x80\x9d Duke Law Journal 57: 1641-1692. (\xe2\x86\xb5 Return)\nSolberg, Rorie Spill and Eric N. Waltenburg. 2006. \xe2\x80\x9cWhy Do Interest Groups Engage the Judiciary?\nPolicy Wishes and Structural Needs.\xe2\x80\x9d Social Science Quarterly 87(3): 558\xe2\x80\x93572. (\xe2\x86\xb5 Return)\nTarrow, Sidney. 1998. Power in Movement: Social Movements and Contentious Politics. Cambridge:\nCambridge University Press. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nTeles, Steven. 2008. The Rise of the Conservative Legal Movement: The Battle for Control of the Law.\nPrinceton: Princeton University Press. (\xe2\x86\xb5 Return)\nTilly, Charles. 1978. From Mobilization to Revolution. Reading, Mass.: Addison-Wesley. (\xe2\x86\xb5 Return 1)\n(\xe2\x86\xb5 Return 2)\nTushnet, Mark V. 2005. A Court Divided: The Rehnquist Court and the Future of Constitutional Law.\nNew York, NY: W.W. Norton & Co. 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(\xe2\x86\xb5 Return 1)(\xe2\x86\xb5 Return 2)\n\n308 | Opposition to Abortion, Then and Now\n\n\x0cAppendix\n\nOpposition to Abortion, Then and Now | 309\n\n\x0cMorality\n\nHarm-women\n\nScience\nPublic health\nSafe*\n\nAbortionist\n\nMother*\n\nStudy\n\nPerson\n\nRape\n\nStudies\n\nBody part\n\nUnsafe\n\nResearch\n\nHuman\n\nDomestic violence\n\nData\n\nWholesaler\n\nIntimate partner violence Evidence\n\nHarverster\n\nAbuse\n\nPeer-review*\n\nAbortion industry Abusive\n\nHealthcare\n\nSold\n\nVictim\n\nProcedure*\n\nUnborn\n\nSurvivors\n\nMedical prof*\n\nBab*\n\nSafe*\n\nMaternal mortality\n\nInfant*\n\nDepress*\n\nAccepted medical pract*\n\nChild*\n\nMaternal mortality\n\nPatient*\n\nKill*\n\nAlone\n\nObstet*\n\nMurder*\n\nHurt*\n\nGynecol*\n\nDie*\n\nRegret*\n\nPhysician*\n\nDying\n\nCry*\n\nFetus*\n\nDead\n\nCried\n\nReproduc*\n\nDeath*\n\nUpset*\n\nProtect*\n\nInnocent*\n\nProtect*\n\nRisk*\n\nLife\n\nRisk*\n\nDanger*\n\nAlive\n\nDanger*\n\nComplication*\n\nConcept*\n\nComplication*\n\nMental health\n\nConcieve*\n\nMental health\n\nWoman\n\nMother*\n\nWoman\n\nWomen\n\nAbortion doctor*\n\nWomen\n\nFemale*\n\nRight*\n\nFemale*\n\nPain*\n\nHurt*\n\nPain*\n\nBlood*\n\nProtect*\n\nBled\n\nHarm*\n\nHarm*\n\nHarm*\n\nFetal pain\nBreast cancer\n\n310 | Opposition to Abortion, Then and Now\n\n\x0cLWIC Dictionaries\nNote: * denotes word stem (e.g., death* would include both \xe2\x80\x9cdeath\xe2\x80\x9d and \xe2\x80\x9cdeaths\xe2\x80\x9d).\n\nClass Activity\nAmicus Curiae Activity in Abortion Cases\nWhen third parties that are not involved in litigation want to weigh in on a pending Supreme\nCourt case, they may file an amicus curiae (friend of the court) brief. These briefs must comply\nwith the guidelines established by the Supreme Court. You can read the guidelines here:\nhttps://www.law.cornell.edu/rules/supct/rule_37.\nGroups like the American Civil Liberties Union (ACLU), the Cato Institute, the Chamber of\nCommerce, the National Association for the Advancement of Colored People (NAACP), and even\nmembers of Congress file amicus briefs to express their views. Below are a few activities to help\nyou research and explore amicus briefs yourself.\n\nAmicus Briefs\nSCOTUSblog is a helpful resource for finding the filings by litigants and amicus groups in recent\nSupreme Court cases.\n1. First, find the amicus briefs filed in the 2016 case Whole Woman\xe2\x80\x99s Health v. Hellerstedt and\npick out five to six that look interesting. (Be sure to pick some from each side in the case.)\nYou can access the filings here, under \xe2\x80\x9cProceedings and Orders\xe2\x80\x9d:\nhttps://www.scotusblog.com/case-files/cases/whole-womans-health-v-cole/.\n2. There are a variety of different approaches and strategies used in amicus briefs. For\ninstance, one kind of brief calls the Court\xe2\x80\x99s attention to the practical impact of ruling in a\nparticular way. Another kind of brief might raise a novel legal argument that the litigants\ndon\xe2\x80\x99t mention. Read the following post on SCOTUSblog about different ways to \xe2\x80\x9cfriend\xe2\x80\x9d the\nSupreme Court. Then look at the amicus briefs you found above and see if you can classify\nthem in the categories identified by the authors. Here\xe2\x80\x99s the post:\nOpposition to Abortion, Then and Now | 311\n\n\x0chttps://www.scotusblog.com/2018/08/top-10-ways-to-friend-scotus/.\n3. Looking at the content of the briefs, what frames can you identify? How do the groups who\nhave signed on to each brief \xe2\x80\x9csell\xe2\x80\x9d the expertise or special insights they bring to the issue?\nWhat kind of evidence is used to support arguments made by medical professionals? By\nabortion-related groups? By groups with religious affiliations?\n4. Once the Supreme Court has read the written arguments in a case, they hear from lawyers\nrepresenting each side and sometimes from the US solicitor general. Listen to the oral\narguments in Whole Woman\xe2\x80\x99s Health and compare how the frames used by the advocates\nrepresenting the litigants compare to the frames you notice in the amicus briefs. You can\naccess the oral arguments here: https://www.oyez.org/cases/2015/15-274.\n\n312 | Opposition to Abortion, Then and Now\n\n\x0c14. Institutional Determinants of Amici\nFilings across State Supreme Courts\nJENNA BECKER KANE\n\nArthur F. Bentley recognized the propensity of organized groups to participate in the courts in\norder to pursue policy goals as early as 1908 (Bentley 1908). Despite this long-standing proclivity\nfor interest groups to pursue policy objectives through the courts, lobbying the courts is very\ndifferent than lobbying other branches of government (Schlozman and Tierney 1986; Truman 1951).\nIn fact, direct lobbying tactics used to influence policy makers in other branches of government\nare virtually useless in the courts. Although groups often attempt to influence the courts by\nbringing \xe2\x80\x9ctest\xe2\x80\x9d cases and sponsoring litigation on behalf of group members or individuals, groups\nmost frequently lobby the courts through the use of amicus curiae, or \xe2\x80\x9cfriend of the court,\xe2\x80\x9d\nbriefs (Songer, Kuersten, and Kaheny 2000; Walker 1991). Because the US Supreme Court sits\natop the judicial hierarchy, much scholarly attention focuses on interest group involvement as\ndirect litigants (Epp 1998; Epstein and Kobylka 1992; Gonen 2003; Kobylka 1991; O\xe2\x80\x99Connor 1980;\nOlson 1984; Samuels 2004; Vose 1958; 1959; Wasby 1995) and as amici curiae (Box-Steffensmeier,\nChristenson, and Hitt 2013; Caldeira and Wright 1998; Collins 2004, 2007, 2008, Kearney and\nMerrill 2000; Songer and Sheehan 1993) before the High Court. Despite the attention paid to\ninterest group activity in the US Supreme Court, much less is known about the groups seeking to\ninfluence state supreme courts.\nThis lack of attention to understanding interest group involvement in state courts of last resort is\nsurprising given the policy impact of these courts. With the US Supreme Court reviewing less than\n1 percent of all cases appealed from state high courts, these courts are the final arbiters of legal,\nconstitutional, and statutory interpretation in the states. The limited literature that investigates\ninterest group lobbying in state high courts tends to focus on the effectiveness of groups filing\namicus curiae briefs (Songer and Kuersten 1995; Songer, Kuersten, and Kaheny 2000; Kane 2017).\nHowever important these studies are, no study has yet to focus on understanding the variation in\ninterest group participation across the states despite data that show interest group participation\nin state courts of last resort has increased substantially in frequency and scope (Epstein 1994).\nThis study seeks to explain why some states generate a more vibrant interest group population in\nthe courts than others. Utilizing data on amicus filings in all noncriminal cases heard across the\nfifty state supreme courts from 1970 to 2010, this chapter explores how variations in institutional\ndesigns influence the likelihood of interest groups to engage state courts in lobbying activities.\nSpecifically, court professionalization, method of judicial retention, and the presence of an\nintermediate appellate court are expected to affect the proportion of amicus filings found across\nInstitutional Determinants of Amici Filings across State Supreme\nCourts | 313\n\n\x0cstate high courts. Understanding the incentives created by different state court systems allows us\nto understand their implications for interest group strategy in state courts.\n\nTheory and Hypotheses\nAmici, Information, and Court Professionalization\nUnlike lobbying in legislative or administrative arenas, lobbying the courts through amicus curiae\nbriefs severely limits the amount of control a group has over their advocacy campaign.\nParticipation as amici curiae affords groups control over neither the strength of the case nor the\nlegal framework within which their argument is presented to the courts. Despite these limitations,\namici are the primary avenue through which interested third parties\xe2\x80\x94typically interest\ngroups\xe2\x80\x94advocate for their preferred legal outcome in the courts. To accomplish this goal, interest\ngroups use amicus briefs as a vehicle to provide the court with information, legal arguments,\nnovel legal frameworks, and scientific and social scientific data and to alert the courts to the\npotential legal, political, and societal consequences of a case outcome (Epstein and Knight 1999;\nHansford 2004). Thus the information provided in amicus curiae briefs is often theorized to be the\nmechanism of interest group influence in the courts (Collins 2004, 2008; Hansford 2004).\nWidespread evidence exists to support this theory of informational influence. Amici are widely\ncited in US Supreme Court opinions (O\xe2\x80\x99Connor and Epstein 1983; Spriggs and Wahlbeck 1997).\nLitigants with supporting amici have been found to be more likely to be successful both before the\nUS Supreme Court (Collins 2004, 2007; Kearney and Merrill 2000; Songer and Sheehan 1993) and\nbefore state supreme courts (Kane 2017; Songer and Kuersten 1995; Songer, Kuersten, and Kaheny\n2000). The value of information provided by amici is also confirmed by some US Supreme Court\njustices (Breyer 1998; O\xe2\x80\x99Connor 1996) and by state supreme court judges and their clerks of courts\n(Flango, Bross, and Corbally 2006).\nIf groups seek to influence court decisions by offering new information in amicus briefs, they\nshould be more likely to invest these efforts in courts that possess greater organizational\ncapacities with which to assess and utilize amici information. In short, groups should want to file\namicus briefs in courts that have the time and resources to review and give serious consideration\nto the arguments of amici curiae. However, there is variation across states in terms of the\nprofessionalization of state supreme courts. State high courts differ greatly in terms of judicial\nsalary, court staffing levels, access and allocation of law clerks, and caseload demands (Squire\n2008). States that allow their high courts to control their caseloads (and thus limit their workload\n314 | Institutional Determinants of Amici Filings across State Supreme Courts\n\n\x0ceach term), provide law clerks for their justices, and staff their courts at higher levels will be\nbetter able to digest, assess, and incorporate the views of amicus curiae briefs. Thus it is expected\nthat states that provide their high courts with greater organizational capacities to utilize amicus\ninformation will experience higher levels of interest group participation.\n\nH1: States with greater levels of high court professionalization are expected to have greater levels of amicus\nfilings as compared to states with less professionalized courts.\n\nJudicial Elections and Interest Groups\nDifferences in methods of judicial retention utilized across the states present another institutional\nvariation that may influence interest groups\xe2\x80\x99 engagement in state courts. There are five primary\nmethods through which states retain their judges: partisan elections or nonpartisan elections,\nretention elections, and gubernatorial or legislative reappointment. The extant literature shows\nthat judicial elections make state high courts more responsive to public opinion (Brace and Boyea\n2008; Caldarone, Canes-Wrone, and Clark 2009; Huber and Gordon 2004). However, subjecting\njudges to the electoral process is often criticized for its potential to erode judicial independence\nby exposing judicial candidates to the rigors of campaign fundraising and advertising (Cann 2007;\nSample et al. 2010; Shepherd 2009; Skaggs et al. 2011). These concerns are heightened by the\nincreased cost of supreme court races in recent decades; the propensity for interest groups like\nbusiness groups, trial lawyers associations, and unions to contribute to high court campaigns\n(Sample et al. 2010); and surges in outside spending by interest groups that have contributed\nto record-breaking spending in many recent high court campaigns (Bannon, Lisk, and Hardin\n2017). In recent years, interest groups have increasingly relied on outside spending in an attempt\nto influence the outcome of high court races rather than contributing directly to candidate\ncampaigns or political parties. In the 2016\xe2\x80\x9317 election cycle alone, interest groups accounted for\n40 percent of all outside money spent on advertising in high court races\xe2\x80\x94a total of $27.8 million to\nelect state supreme court judges (Bannon, Lisk, and Hardin 2017, 2).\nIn light of the affinity for interest groups to contribute to the campaign coffers of judicial\ncandidates, it is only logical for interest groups seeking to influence state court outcomes to\nfocus their attention on those state high courts where there are contestable elections. A caselevel analysis of amicus participation suggests this is the case; judiciaries staffed by competitive\nelections attracted higher rates of filings as compared to appointed and retention-elected\njudiciaries (Kane 2018). Therefore, states that retain their courts through contestable elections\nInstitutional Determinants of Amici Filings across State Supreme Courts | 315\n\n\x0c(partisan and nonpartisan elections) are expected to garner the highest level of amicus\nparticipation.\n\nH2: States that retain high courts through contestable elections, which include partisan and nonpartisan\nelections, are expected to receive higher levels of amicus participation than states that utilize retention\nelections or reappointment to retain judges.\n\nPolicy Impact and State Court Structure\nInterest groups may also target state high courts differently based on the perceived policy-making\nability of the court. States whose court structures mimic the federal government\xe2\x80\x99s three-tier\nmodel with the presence of an intermediate appellate court may attract more interest group\ninvolvement in courts of last resort than states with only general jurisdiction trial courts and state\nsupreme courts. States with intermediate appellate courts have high court dockets that are less\nclogged with routine appeals. Groups seeking to participate as amicus curiae may be more likely to\nfile briefs in states with intermediate appellate courts because high courts in these states have the\nability to decide a greater number of substantive cases that impact public policy as compared to\nthose courts whose dockets are filled largely with mandatory appeals (Squire 2008). Having fewer\nmandatory appeals also tends to signal lower overall caseloads for state supreme courts. Thus\ngroups may perceive courts with smaller caseloads as having more time to consider the additional\ninformation and legal arguments contributed by third-party briefs.\n\nH3: States with intermediate appellate courts are expected to have higher levels of amicus filings than\nstates without.\n\nSeveral additional independent variables are included in the analysis to control for factors that\nmay affect interest group involvement in state supreme courts. First, because the increase in\ninterest group involvement in state courts in the 1970s and 1980s coincided with the growing\nconservativism of the federal judiciary and calls by liberal groups for a rediscovery of \xe2\x80\x9cnew judicial\nfederalism\xe2\x80\x9d in which constitutional rights provisions could be secured through interpretations of\nstate constitutions rather than the federal Constitution (Epstein 1994), a measure of state supreme\ncourt ideology is included to control for the possibility that groups are filing amicus curiae briefs\nin more liberal-leaning courts. State supreme court ideology is measured using Brace, Langer, and\nHall\xe2\x80\x99s (2000) party-adjusted judge ideology (PAJID) scores, which range from 0 to 100, with lower\n316 | Institutional Determinants of Amici Filings across State Supreme Courts\n\n\x0cscores representing more conservative-leaning judges and higher scores more liberal-leaning\njudges. PAJID scores have been shown to outperform partisan identification as a measure of judge\nideology and are available for the range of dates included in this study.\nSimilarly, due to the growing conservatism of the federal bench and emphasis by many groups\nto see more liberal interpretations of individual rights under state constitutions, the Erickson,\nWright, and McIver (1993, 2006) measure of state citizen ideology is also included to control for\nthe possibility that groups may be focusing on lobbying the courts in more liberal-leaning states.\nThis measure of citizen ideology was created by disaggregating pooled CBS News / New York\nTimes national polls between 1976 and 2003 to generate state-level estimates of citizen ideology.\nScores range from \xe2\x88\x9230.8 in Mississippi, the most conservative state, to 8 in the most liberal state\nof Vermont.\nAnother variable included in the analysis seeks to control for the possibility that interest groups\nare incentivized to file amicus curiae briefs in states where the groups already have an\norganization presence. If an interest group has existing offices within a given state, the costs\nof filing amicus curiae briefs should decrease, as the group\xe2\x80\x99s existing resources, infrastructure,\nand institutional knowledge decreases the costs of lobbying. To account for this possibility, Gray\nand Lowry\xe2\x80\x99s (1996) measure of interest group density, which assesses the number of interest\norganizations registered to lobby in each state, is included in the analysis.\nThe final control variable included is a measure of state legislative professionalism. Because many\ninterest groups are primarily engaged in lobbying state legislatures, it may be that groups are filing\namicus curiae briefs in the judiciaries of states that they have already targeted with legislative\nstrategies. If this is the case, we may observe greater levels of interest group participation in\nstates that have more professionalized legislatures as opposed to citizen-led legislatures. Squire\xe2\x80\x99s\n(1992, 2007) index of legislative professionalism is a composite index of various factors including\nlegislator salary, length of legislative session, and staffing resources. The measure ranges from 0 to\n1, where an index score of 1 indicates that a state legislature perfectly mirrors the professionalism\nof the US Congress and a score of 0 indicates no resemblance whatsoever.\n\nData and Research Design\nIn order to generate a measure of amicus participation in state supreme courts that varies across\nboth states and time, state-specific search queries were crafted in Westlaw to determine the\npercentage of cases with amicus participation in each year for each state supreme court. These\nstate- and year-specific search queries produced data for the dependent variable\xe2\x80\x94the percentage\nof noncriminal cases decided by state supreme courts that involved at least one amicus curiae\nInstitutional Determinants of Amici Filings across State Supreme Courts | 317\n\n\x0cbrief. Criminal cases are excluded from the analysis because they greatly increase the number\nof cases heard by those state supreme courts that hear mandatory appeals in criminal cases\nwhile adding little to the overall picture of amicus participation. Across the fifty states, state\nhigh courts hear varying degrees of criminal appeals. In states without intermediate appellate\ncourts, state high courts must review every criminal appeal generated by the lower trial courts.\nIn other state courts of last resort, criminal appeals are only mandatory for certain classes\nof felony cases or in cases involving death-eligible offenses. If criminal appeals were included\nin the measure of the dependent variable, it could bias the overall proportion of cases with\namicus participation in a downward direction for certain states, potentially masking the amount of\ninterest group involvement in state high courts that hear mandatory appeals. Conversely, because\namicus participation in state criminal appeals is infrequent, there is little reason to believe that\nexcluding criminal cases from the measure of amici participation will drastically alter the picture\nof interest group participation in the states.\nIn order to gather data on the participation rates of amici across the states, a two-stage Westlaw\nsearch was conducted for each state over a forty-year period. The first search identified all\nnoncriminal cases decided with full written opinions in each state while eliminating slip decisions,\nunpublished decisions, orders, and certiorari decisions that also appear in the Westlaw state\ndatabases. The second stage of the search was used to limit the initial search to include only those\ncases in which the words amici or amicus appear. Once the cases with amici were identified, each\ncase was examined to be sure there was at least one amicus brief filed and that the search terms\namicus and amici were not identifying a reference to an amicus brief in the body of the court\xe2\x80\x99s\ndecision. In most instances, state-specific search criteria were required in order to identify all\nnoncriminal cases decided with full opinions.\nThe model below is used to estimate the influence of the independent variables on the\nproportion of noncriminal cases in state supreme courts that include amici between 1970 and\n2004.\n\nPercent amiciit = \xce\xb1 + \xce\xb2 SSC professionalizationit + \xce\xb2 contestably elected courtit + \xce\xb2 retention elected courtit\n+ \xce\xb2 intermediate appellate courtit + \xce\xb2 controlsit + \xe2\x88\x91it\n\nAll of the hypothesized relationships between independent variables and the amount of amicus\nparticipation are premised on the institutional variation across states. While the data utilized\nin this study vary both over time and across states\xe2\x80\x94time-series cross-sectional data\xe2\x80\x94most of\nthe independent variables of interest are slow or nonmoving over the time period examined. For\nexample, only eight states altered their method of judicial retention over the forty-year span.\nBecause there is little variation over time in most variables, two models will be estimated, both\n318 | Institutional Determinants of Amici Filings across State Supreme Courts\n\n\x0cof which allow for the inclusion of time-invariant variables. First, an ordinary least squares (OLS)\nregression model with clustered standard errors is utilized with year-fixed effects in order to\naccount for any year-specific effects that might be present. This model will allow all variables to\nbe included while accounting for the possibility that observations within states may be correlated\nor associated with one another. Second, because many of the hypotheses predict amicus\nparticipation rates to differ due to variations of high court institutional design across states, a\nbetween-effects model is estimated to explain the amount of variation of amicus filings that is\naccounted for only by the variation of the independent variables between states.\n\nTrends in Amicus Participation\nFigure 1 depicts a snapshot of amicus participation across all fifty states in 2010. By examining\nthe most recent year included in the data set, we are able to obtain a sense of the overall\nparticipation rates of interest groups in state high courts. Overall, interest groups filed amicus\ncuriae briefs in 23.1 percent of all civil cases filed in state supreme courts in 2010. However, there\nis great variation around this mean value of amicus activity. The California Supreme Court had the\nhighest amici participation rate at 92.9 percent. Wisconsin\xe2\x80\x99s highest court had the second-largest\namici participation rate with 72.7 percent. Michigan and New Jersey saw amici activity at 67.6\npercent and 65.9 percent, respectively, while the supreme courts of Minnesota and Massachusetts\nattracted amici in nearly 53 percent of civil cases for that year. Despite these high rates of interest\ngroup participation in some state high courts, many states saw little amicus participation at all.\nNorth Dakota\xe2\x80\x99s highest court saw virtually no activity in 2010 with an amicus participation rate\nof 0.7 percent, and the state supreme courts of Nebraska, Alaska, South Dakota, Wyoming, and\nDelaware all saw amicus filings in fewer than 2 percent of civil cases.\n\nInstitutional Determinants of Amici Filings across State Supreme Courts | 319\n\n\x0cFigure 1: Amici Participation in the State Supreme\nCourts: Percent Amici Participation- 2010\n\nFigure 2 shows the percentage of change in amicus participation rates in each state between 1970\nand 2010. Overall, amicus participation in the states has increased over the past four decades.\nHowever, this increase has not occurred simultaneously in all states. While California saw a steady\nincrease in interest group involvement in the high courts\xe2\x80\x94ranging from a low of 30 percent in\nthe early 1970s to nearly 93 percent in 2010\xe2\x80\x94other states saw little to no increase in amicus\nfilings. Most notably, Arkansas, Idaho, Iowa, Maine, Mississippi, Montana, Nebraska, North Dakota,\nRhode Island, South Dakota, Utah, Vermont, and Wyoming all saw amicus participation rates that\nfluctuated below 1 percent over the majority of the forty-year period. Figure 3 shows a more\ndetailed examination of amicus participation rates in each state over the full time frame. Results\nof the multivariate analysis lend some insight into why interest groups are prominent players in\nsome state high courts and virtually nonexistent in others.\n\nFigure 2: Amici Participation in State Supreme\nCourts: Change in Amicus Participation 1970-2010\n\n320 | Institutional Determinants of Amici Filings across State Supreme Courts\n\n\x0cFigure 3. Amicus Participation Rates across Time in the U.S. States\n\nInstitutional Determinants of Amici Filings across State Supreme Courts | 321\n\n\x0c322 | Institutional Determinants of Amici Filings across State Supreme Courts\n\n\x0cInstitutional Determinants of Amici Filings across State Supreme Courts | 323\n\n\x0c324 | Institutional Determinants of Amici Filings across State Supreme Courts\n\n\x0cInstitutional Determinants of Amici Filings across State Supreme Courts | 325\n\n\x0c326 | Institutional Determinants of Amici Filings across State Supreme Courts\n\n\x0cResults\nMost hypotheses are confirmed by the results of the multivariate models, as shown in table\n1. The single largest effect on amicus participation rates in a state\xe2\x80\x99s high court is the level of\ncourt professionalization. The more professionalized a state supreme court, the greater the amici\nparticipation. In substantive terms, a state high court that is one standard deviation above the\nmean value of court professionalization, such as the Supreme Court of South Carolina, would have\nan amicus participation rate that is 5.7 percentage points higher than the Oklahoma Supreme\nCourt, with a professionalization score that is approximately one standard deviation below the\nmean. The Michigan Supreme Court, which has a professionalization score that is two standard\ndeviations above the mean, will witness amicus filing rates that are 11.4 percentage points greater\nthan those witnessed in the North Dakota Supreme Court, which falls two standard deviations\nbelow the mean. These results suggest that states with more professionalized high courts are\nmore attractive lobbying venues for interest groups. It appears that interest groups are aware\nof the level of staffing and resources possessed by state supreme courts and are targeting more\n\nInstitutional Determinants of Amici Filings across State Supreme Courts | 327\n\n\x0cprofessionalized courts that are better positioned to process and incorporate amici information\ninto their judicial decision-making.\nOLS Model w/ Clustered Robust SEs w/ Year\nFEs\n\nBetween Effects OLS\nModel\n\n0.197*\n\n0.159*\n\n(0.091)\n\n(0.081)\n\n0.081*\n\n0.074*\n\n(0.027)\n\n(0.033)\n\n0.080*\n\n0.064\n\n(0.032)\n\n(0.035)\n\n0.017\n\n0.037\n\n(0.024)\n\n(0.032)\n\n-0.0002\n\n-0.001\n\n(0.0003)\n\n(0.001)\n\n-0.00001\n\n-0.00001\n\n(0.00001)\n\n(0.00001)\n\n0.336**\n\n0.0331*\n\n(0.094)\n\n(0.136)\n\n0.005*\n\n0.005*\n\n(0.001)\n\n(0.002)\n\n-0.139*\n\n0.003\n\n(0.057)\n\n(0.061)\n\nR\n\n0.568\n\n0.679 (between)\n\nN\n\n1740\n\n1740/50 groups\n\nState Supreme Court\nProfessionalization\nContestably\nElected Court\n\nRetention Elected Court\nintermediate Appellate\nCourt\nCourt Ideology\n\nInterest Group Density\nLegislative\nProfessionalization\nState Ideology\n\nConstant\n2\n\nTable 1: Predicting Percent of Cases with Amicus Participation in a State\n*p<0.05, **p<0.001\n\nResults of both models show that the method of judicial retention is also significantly and\npositively related to interest group participation in state high courts, as originally hypothesized.\nSpecifically, states that utilize contestable elections, both partisan and nonpartisan, to retain high\ncourt judges attract third-party briefs at rates between 7.4 and 8.1 percent higher than states\nthat appoint high court judges. States that use retention elections to retain high court judges also\nappear to have amicus filing rates that are 8.0 percent higher when compared to states that utilize\n328 | Institutional Determinants of Amici Filings across State Supreme Courts\n\n\x0creappointive methods. It should be noted, however, that the results of retention elections fall\njust short of statistical significance in the between-effects model, though its coefficient is in the\nexpected positive direction. The fact that interest groups are targeting elected judiciaries suggests\nthat groups believe that courts accountable to the electorate may be more easily influenced\nby the views of outside interests. It is also interesting to note that, counter to expectations,\ninterest groups also appear to be consistently targeting retention-elected courts. While retention\nelections are often designed to engender judicial independence and decrease public\naccountability, it appears that organized interests see these courts as more amenable to the views\nof third-party groups.\nSurprisingly, states with intermediate appellate courts do not see greater levels of amicus filings\nwhen compared to those states without. In fact, a state that has an intermediate appellate court\nis no more likely to have greater amicus activity than a state without an intermediate appellate\ncourt. This suggests that third-party groups are not specifically targeting state high courts that\nhave greater discretion over their caseloads.\nSome of the control variables showed the expected relationships to the dependent variable.\nLegislative professionalism and state ideology are both positively associated with amicus\nparticipation rates in the states. States with more professionalized legislatures promote higher\nlevels of amicus participation than do states with less-professionalized or citizen legislatures.\nThese results may be a product of interest group familiarity with lobbying in the legislative arenas.\nGroups that regularly lobby more professionalized state legislatures appear to be more willing\nto enter the judicial arena by lobbying the high courts of those same states. Interest groups are\nalso filing more amici in liberal-leaning states. This may be a result of the growing conservatism\nin the federal judiciary since the 1960s that propelled many liberal-leaning interest groups to\nseek greater rights protections in the states. Or perhaps organized groups, both liberal and\nconservative alike, believe that courts in more liberal-leaning states will be more amenable to the\nconcerns of outside interests. While these explanations cannot be fully tested in this chapter, they\nleave open avenues for future research.\nContrary to expectations, state supreme court ideology proves to have no significant effect on\nthe amicus participation rate in any of the models. This finding is particularly interesting when\nconsidered in conjunction with the positive and statistically significant effects of state ideology\non amicus participation. Interest groups are not targeting amicus filings in states with more\nliberal judiciaries but do appear to be targeting courts in more liberal-leaning states. Perhaps\nstate ideology is more visible to interest groups than the ideology of state high courts, and thus\ninterest groups gauge the receptivity of courts to amicus arguments by the overall ideology of the\nstate. Also surprisingly, the level of interest group density in a state does not have the predicted\npositive effect on amicus participation. This suggests that state high courts are not being targeted\nby groups solely because a given state has a particularly active interest group community.\nInstitutional Determinants of Amici Filings across State Supreme Courts | 329\n\n\x0cConclusions\nWith the relatively few cases being decided each year by the US Supreme Court, state high courts\nare routinely the final arbiters on most matters of state and federal law. With the policy-making\npower of these courts long entrenched, it is no surprise that interest groups have taken an interest\nin lobbying state high courts. This study provides the first comprehensive examination of the\ntrends of interest group activity in state high courts from 1970 to 2010. The results indicate that\ninterest group involvement in state high courts has proliferated in recent decades. However, this\ngrowth in amicus filings appears to have occurred unevenly, with some states showing steady\nincreases and others showing erratic patterns of amicus filings over time. Utilizing original data on\namicus filings in all noncriminal cases decided by state supreme courts, this study also finds that\ninstitutional variations in state court design account for much of the observed variation in amicus\nparticipation. Specifically, high court professionalization and contestable elections all serve to\nincrease the rate by which amicus curiae briefs are filed in state high courts.\nResults of this study indicate that interest groups view courts with greater access to resources and\nstaff and more docket control as better arenas for presenting their policy expertise. This should\nnot be surprising given the unique nature of lobbying courts. Groups filing amicus curiae briefs\noften must fit their policy arguments in the legal framework and fact patterns of an existing legal\ndispute. This affords groups less control over the design of their advocacy efforts than is typical\nin the legislative or administrative arenas. Given these limitations, the results of this analysis\nsuggest that groups are strategically targeting more professionalized high courts that possess the\nresources to better equip a court to utilize and evaluate the information provided in third-party\nbriefs.\nStates with popularly elected judiciaries also prove to be attractive venues for amicus participation\nby organized interests. Whether states hold contestable elections or use retention elections,\ninterest groups filing amicus curiae appear to be attracted to courts whose judges are publicly\naccountable. The same elected courts that are often targeted by organized interests in thirdparty attack advertising during judicial elections are also more likely to be targeted by organized\ninterests filing amicus curiae. Groups seem to be seizing on the electoral connection of these\ncourts in hopes of increasing their chances of litigation success. Whether this affinity to filing\namicus curiae in publicly accountable judiciaries is tied to the democratic nature of these courts\nor the perception that the demands of campaign fundraising erode judicial independence enough\nto open these elected courts to outside influences, organized interests are targeting elected\njudiciaries\xe2\x80\x94both contestable and retention-elected judiciaries\xe2\x80\x94at higher rates than their\nappointed counterparts.\nAs strategic actors, the study finds that interest groups target state high courts that they believe\n330 | Institutional Determinants of Amici Filings across State Supreme Courts\n\n\x0cwill be more amenable to the concerns of third-party and state high courts that have the\ninstitutional capacity to make use of the information provided in these briefs. Groups are also\ntargeting courts in more liberal-leaning states and those with more professionalized legislatures.\nWhile this type of strategic behavior by interest groups with limited resources may not be overly\nsurprising, it does have implications for the independence of state judiciaries. If judicial elections\nare designed to create a democratic link between citizens and courts, this link may be eroded if\nthe realities of running for office make these courts more susceptible to the policy arguments of\ninterest groups filing amicus curiae. While the impact of these amicus briefs on state high court\ndecision-making is beyond the scope of this analysis, there definitely appears to be a propensity\nof organized groups to target publicly accountable courts.\n\nReferences\nBentley, Arthur F. 1908. The Process of Government: A Study of Social Pressures. Chicago: University\nof Chicago Press. (\xe2\x86\xb5 Return)\nBannon, Alicia, Cathleen Lisk, and Peter Hardin. 2017. 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(\xe2\x86\xb5 Return)\nCollins, Paul M. 2004. \xe2\x80\x9cFriends of the Court: Examining the Influence of Amicus Curiae\nParticipation in U.S. Supreme Court Litigation.\xe2\x80\x9d Law & Society Review 38 (4): 807\xe2\x80\x93832. (\xe2\x86\xb5 Return\n1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3)\nCollins, Paul M. 2007. \xe2\x80\x9cLobbyists before the U.S. Supreme Court: Investigating the Influence of\nAmicus Curiae Briefs.\xe2\x80\x9d Political Research Quarterly 60 (1): 55\xe2\x80\x9370. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nCollins, Paul M. 2008. Friends of the Supreme Court: Interest Groups and Judicial Decision Making.\nNew York: Oxford University Press. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nEpp, Charles R. 1998. The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative\nPerspective. Chicago: University of Chicago Press. (\xe2\x86\xb5 Return)\nEpstein, Lee, and Jack Knight. 1999. \xe2\x80\x9cMapping Out the Strategic Terrain: The Informational Role of\nAmici Curiae.\xe2\x80\x9d in Supreme Court Decision-Making. ed. Cornell W. Clayton and Howard Gillman.\nChicago: University of Chicago Press. (\xe2\x86\xb5 Return)\nEpstein, Lee, and Joseph F. Kobylka. 1992. The Supreme Court and Legal Change: Abortion and the\nDeath Penalty. Chapel Hill: The University of North Carolina Press. (\xe2\x86\xb5 Return)\nEpstein, Lee. 1994. \xe2\x80\x9cExploring the Participation of Organized Interests in State Court Litigation.\xe2\x80\x9d\nPolitical Research Quarterly 47 (2): 335\xe2\x80\x93351. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nErickson, Robert S., Gerald C. Wright and John P. McIver. 1993. Statehouse Democracy: Public\nOpinion and Policy in the American States. New York: Cambridge University Press. (\xe2\x86\xb5 Return)\nErickson, Robert S., Gerald C. Wright and John P. McIver. 2006. \xe2\x80\x9cPublic Opinion in the States: A\nQuarter Century of Change and Stability.\xe2\x80\x9d In Public Opinion in State Politics, ed. Jeffrey E. Cohen.\nStanford: Stanford University Press. (\xe2\x86\xb5 Return)\nFlango, Victor E., Donald C. Bross, and Sarah Corbally. 2006. \xe2\x80\x9cAmicus Curiae Briefs: The Court\xe2\x80\x99s\nPerspective\xe2\x80\x9d Justice System Journal 27 (2): 180\xe2\x80\x93190. (\xe2\x86\xb5 Return)\nGonen, Julianna S. 2003. Litigation as Lobbying: Reproductive Hazards and Interest Aggregation.\nColumbus: Ohio State University Press. (\xe2\x86\xb5 Return)\nGray, Virginia, and David Lowery. 1996. The Population Ecology of Interest Representation: Lobbying\nCommunities in the American States. Ann Arbor: University of Michigan Press. (\xe2\x86\xb5 Return)\n332 | Institutional Determinants of Amici Filings across State Supreme Courts\n\n\x0cHansford, Thomas G. 2004. \xe2\x80\x9cInformation Provision, Organizational Constraints, and the Decision\nto Submit an Amicus Curiae Brief in a U.S. Supreme Court Case.\xe2\x80\x9d Political Research Quarterly 57\n(2): 219\xe2\x80\x93230. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nHuber, Gregory A., and Sanford C. Gordon. 2004. \xe2\x80\x9cAccountability and Coercion: Is Justice Blind\nwhen It Runs for Office?\xe2\x80\x9d American Journal of Political Science 48 (2): 247\xe2\x80\x93263. (\xe2\x86\xb5 Return)\nKane, Jenna Becker. 2017. \xe2\x80\x9cLobbying Justice(s)? Exploring the Nature of Amici in State Supreme\nCourt Decision Making.\xe2\x80\x9d State Politics & Policy Quarterly 17 (3). (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nKane, Jenna Becker. 2018. \xe2\x80\x9cInformational Need, Institutional Capacity, and Court Receptivity:\nInterest Groups and Amicus Curiae in State High Courts.\xe2\x80\x9d Political Research Quarterly 71 (4):\n881\xe2\x80\x93894. (\xe2\x86\xb5 Return)\nKearney, Joseph D., and Thomas W. Merrill. 2000. \xe2\x80\x9cThe Influence of Amicus Curiae Briefs on the\nSupreme Court.\xe2\x80\x9d University of Pennsylvania Law Review 148:1\xe2\x80\x9368. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nKobylka, Joseph F. 1991. The Politics of Obscenity: Group Litigation in a Time of Legal Change. New\nYork: Greenwood Press. (\xe2\x86\xb5 Return)\nO\xe2\x80\x99Connor, Karen. 1980. Women\xe2\x80\x99s Organizations\xe2\x80\x99 Use of the Courts. Lexington, MA: Lexington Books.\n(\xe2\x86\xb5 Return)\nO\xe2\x80\x99Connor, Karen, and Lee Epstein. 1983. \xe2\x80\x9cThe Rise of Conservative Interest Group Litigation.\xe2\x80\x9d\nJournal of Politics 45 (2): 479\xe2\x80\x93489. (\xe2\x86\xb5 Return)\nO\xe2\x80\x99Connor, Sandra Day. 1996. \xe2\x80\x9cHenry Clay and the Supreme Court.\xe2\x80\x9d Speech Delivered to the Henry\nClay Memorial Foundation October 4. Available http://www.henryclay.org/sc.htm (inactive link\nas of 5/21/2020) (\xe2\x86\xb5 Return)\nOlson, Susan M. 1984. Clients and Lawyers: Securing the Rights of Disabled Persons. Westport:\nGreenwood Press. (\xe2\x86\xb5 Return)\nSample, James, Adam Skaggs, Jonathan Blitzer and Linda Casey. 2010. \xe2\x80\x9cThe New Politics of Judicial\nElections, 2000\xe2\x80\x932009: Decade of Change.\xe2\x80\x9d Washington, DC: Justice at Stake Campaign. (\xe2\x86\xb5 Return\n1) (\xe2\x86\xb5 Return 2)\nSamuels, Suzanne U. 2004. First Among Friends: Interest Groups, the U.S. Supreme Court, and the\nRight to Privacy. Westport: Praeger. (\xe2\x86\xb5 Return)\nSchlozman, Kay Leman, and John T. Tierney. 1986. Organized Interests and American Democracy.\nNew York: Harper & Row Publishers. (\xe2\x86\xb5 Return)\n\nInstitutional Determinants of Amici Filings across State Supreme Courts | 333\n\n\x0cShepherd, Joanna M. 2009. \xe2\x80\x9cMoney, Politics, and Impartial Justice.\xe2\x80\x9d Duke Law Journal 58:622\xe2\x80\x93685.\n(\xe2\x86\xb5 Return)\nSkaggs, Adam, Maria da Silva, Linda Casey and Charles Hall. 2011. \xe2\x80\x9cThe New Politics of Judicial\nElections, 2009\xe2\x80\x932010.\xe2\x80\x9d Washington, DC: Justice at Stake Campaign. (\xe2\x86\xb5 Return)\nSonger, Donald R., and Ashlyn Kuersten. 1995. \xe2\x80\x9cThe Success of Amici in State Supreme Courts.\xe2\x80\x9d\nPolitical Research Quarterly 48: 31\xe2\x80\x9342. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nSonger, Donald, Ashlyn Kuersten and Erin Kaheny. 2000. \xe2\x80\x9cWhy the Haves Don\xe2\x80\x99t Always Come Out\nAhead: Repeat Players Meet Amici Curiae for the Disadvantaged.\xe2\x80\x9d Political Research Quarterly 53\n(3): 537\xe2\x80\x93556. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3)\nSonger, Donald R., and Reginald S. Sheehan. 1993. \xe2\x80\x9cInterest Group Success in the Courts: Amicus\nParticipation in the Supreme Court.\xe2\x80\x9d Political Research Quarterly 46 (2): 339\xe2\x80\x93354. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5\nReturn 2)\nSpriggs, James F. and Paul J. Wahlbeck. 1997. \xe2\x80\x9cAmicus Curiae and the Role of Information at the\nSupreme Court.\xe2\x80\x9d Political Research Quarterly 50 (2): 365\xe2\x80\x93386. (\xe2\x86\xb5 Return)\nSquire, Peverill. 1992. \xe2\x80\x9cLegislative Professionalization and Membership Diversity in State\nLegislatures.\xe2\x80\x9d Legislative Studies Quarterly 17 (1): 69\xe2\x80\x9379. (\xe2\x86\xb5 Return)\nSquire, Peverill. 2007. \xe2\x80\x9cMeasuring State Legislative Professionalism: The Squire Index Revisited.\xe2\x80\x9d\nState Politics & Policy Quarterly 7 (2): 211\xe2\x80\x93227. (\xe2\x86\xb5 Return)\nSquire, Peverill. 2008. \xe2\x80\x9cMeasuring the Professionalization of U.S. State Courts of Last Resort.\xe2\x80\x9d State\nPolitics & Policy Quarterly 8 (3): 223\xe2\x80\x93238. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nTruman, David B. 1951. The Governmental Process: Political Interests and Public Opinion. New York:\nKnopf Press. (\xe2\x86\xb5 Return)\nVose, Clement E. 1958. \xe2\x80\x9cLitigation as a Form of Pressure Group Activity.\xe2\x80\x9d The Annals of the American\nAcademy of Political and Social Science 319:20\xe2\x80\x9331. (\xe2\x86\xb5 Return)\nVose, Clement E. 1959. Caucasians Only: The Supreme Court, the NAACP, and the Restrictive\nCovenant Cases. Berkeley: University of California Press. (\xe2\x86\xb5 Return)\nWalker, Jack L. Jr. 1991. Mobilizing Interest Groups in America: Patrons, Professions, and Social\nMovements. Ann Arbor: University of Michigan Press. (\xe2\x86\xb5 Return)\nWasby, Stephen L. 1995. Race Relations in an Age of Complexity. Charlottesville: University of\nVirginia Press. (\xe2\x86\xb5 Return)\n334 | Institutional Determinants of Amici Filings across State Supreme Courts\n\n\x0cClass Activity\nGuidelines for Instructors\nBreak students into groups and have them work together to locate and skim an amicus brief\nsubmitted to a state supreme court. Briefs are typically available through Westlaw or LexisNexis\nAcademic subscriptions held by many university libraries. Having students locate the briefs is also\na good way for them to try a bit of legal research for themselves. However, instructors could\nalso distribute preprinted briefs to the groups if locating them is too time-consuming. If your\nuniversity library does not have access to a searchable legal database, full-text versions of these\nbriefs filed with the US Supreme Court are available at SCOTUSblog (www.scotusblog.com) and\ncould be used to hold the same discussion with students.\nBelow are a few case citations from the data set used in this article that contain good full-text\namicus briefs filed in state supreme courts. These cases cover products liability, the environment,\nand free speech, and each was selected because there are multiple amici filed by various groups.\nThis gives the instructor the ability to have each group examine different amicus briefs stemming\nfrom the same legal dispute.\nProducts Liability Cases\n\xe2\x80\xa2 Advincula v. United Blood Services (1996) 678 N.E.2d 1009.\n\xe2\x80\xa2 Johnson v. American Standard, Inc. (2008) 179 P.3d 905. https://caselaw.findlaw.com/casupreme-court/1309537.html\n\xe2\x80\xa2 Kitchen v. K-Mart Corp. (1997) 697 So.2d 1200. https://caselaw.findlaw.com/fl-supremecourt/1254858.html\nEnvironmental Cases\n\xe2\x80\xa2 Clean Wisconsin, Inc. v. Public Service Com\xe2\x80\x99n of Wisconsin (2005) 700 N.W.2d 768.\n\xe2\x80\xa2 Eagle Environmental II, L.P. v. PA Dept. of Environmental Protection (2005) 884 A.2d 867\n\xe2\x80\xa2 Fafard v. Conservation Com\xe2\x80\x99n of Barnstable (2000) 733 N.E.2d 66\nFree Speech/Expression Cases\n\nInstitutional Determinants of Amici Filings across State Supreme Courts | 335\n\n\x0c\xe2\x80\xa2 Bowman v. Heller (1995) 651 N.E.2d 369\n\xe2\x80\xa2 Tuite v. Corbitt (2006) 866 N.E.2d 114\n\xe2\x80\xa2 Tyne v. Time Warner Entertainment Co., L.P. (2005) 901 So.2d 802\n\nDiscussion Questions\n\xe2\x80\xa2 What types of arguments are the groups making to the court?\n\xe2\x80\xa2 Do you find the group\xe2\x80\x99s argument credible? Why or why not?\n\xe2\x80\xa2 What about the arguments submitted by the amici would be helpful to a state supreme court\n(or courts more broadly)?\n\xe2\x80\xa2 Should courts consider outside arguments other than the legal arguments submitted by the\nlitigants involved in the case? Why or why not?\n\xe2\x80\xa2 Should courts be responsive to interest groups filing amicus curiae briefs? Why or why not?\n\xe2\x97\xa6 Does responsiveness to interest groups undermine judicial independence?\n\xe2\x80\xa2 This chapter determines that groups appeared to be targeting elected courts more often\nthan appointed courts.\n\xe2\x97\xa6 Why do you think groups might target elected courts?\n\xe2\x97\xa6 Is this targeting of elected courts by interest groups problematic? Why or why not?\n\n336 | Institutional Determinants of Amici Filings across State Supreme Courts\n\n\x0cPART II\n\nCOURT PROCEDURES\nCivil Courts\nAppellate Courts\n\nCourt Procedures | 337\n\n\x0cCivil Courts\nDumas, Tao. \xe2\x80\x9cHow Much is a Leg Worth? What do Civil Trial Courts do, and Why Should We Care?\xe2\x80\x9d\nGivens, John Wagner. \xe2\x80\x9cOn Their Best Behavior? Foreign Plaintiffs in Chinese Administrative\nLitigation\xe2\x80\x9d\n\n338 | Civil Courts\n\n\x0c15. How Much is a Leg Worth?\nWhat do Civil Trial Courts Do, and Why Should We Care?\nTAO DUMAS\n\nAbstract\nThis essay explores the function and role of state civil jury trials and the political and policy\ndebates surrounding them. The most recent Republican Party Platform calls for additional tort\nreforms to protect doctors from frivolous lawsuits and reduce consumer costs. Yet while the\npolitical conflict over the civil justice system continues, these courts remain severely\nunderstudied, largely due to a lack of data availability. Consequently, much of the debate relies\non limited empirical evidence. Despite the constrained scholarly attention, especially in political\nscience, state civil trial courts of general jurisdiction are the final arbiters of the law in most\ncivil cases. In order to begin to understand what these critically important courts do, I review\nlegal academic and political science literature related to state court decision-making and case\nprocessing. I then use an original data collection of civil jury verdicts in four states (Alabama,\nIndiana, Kentucky, and Tennessee) to examine variation in docket composition, winners and\nlosers, and institutional design across the states, with specific attention to tort reforms. For\nexample, Alabama has enacted 29 different tort reforms, second only to Texas in total reforms.\nMeanwhile, Indiana utilizes institutional review boards, a type of reform where groups of medical\nprofessionals make a pre-trial determination about the merits of medical malpractice cases, with\nthe proposed intent of reducing meritless malpractice trials. I then discuss possible relationships\nbetween institutional variation and jury verdicts.\nAlthough an infrequent topic of discussion, civil trial courts are important and powerful\ninstitutions that rely on judges and juries to settle disputes and prescribe (typically) monetary\nretribution for injuries. By allowing injured parties to access the justice system and seek\ncompensation for harms, the civil courts serve four primary purposes: 1) dispute resolution;\n2) creating predictability in societal actors\xe2\x80\x99 behavior; 3) deterring misconduct and modifying\nconduct; and 4) allocating resources (Shapiro 1981). In civil cases, injured litigants, often\nindividuals or groups with limited resources, bring suits against defendants who may possess\n\xe2\x80\x9cdeep pockets,\xe2\x80\x9d asking juries to convert damages to dollars by determining both the winner and the\nappropriate compensation. Civil trials often pit \xe2\x80\x9chave-not\xe2\x80\x9d plaintiffs against the \xe2\x80\x9chaves\xe2\x80\x9d (Galanter\n1974). These courts constitute one of the few institutions where ordinary people and groups with\nHow Much is A Leg Worth? | 339\n\n\x0cgrievances can directly access the government to solve their disagreements, challenge wealthy\nand powerful businesses and organizations, and obtain a remedy for their injuries through\nmonetary awards. Damage awards also perform the important function of punishing individuals,\nbusinesses, and organizations that engage in reckless or negligent behavior that harms others\nand encouraging them to cease said behavior. Moreover, the use of juries to solve most civil\ndisputes allows members of the local community to determine winners and losers and appropriate\ncompensation for injuries. Although civil trial courts clearly perform a central institutional and\nsocietal role, the merits of allowing lay jurors to solve disputes has and continues to be the subject\nof much deliberation among academics, reformers, and policymakers.\nThese persistent normative and political tensions regarding the role of civil juries in American\nsociety give rise to two empirical questions: First, are there observable differences in the way\nthat civil juries resolve disputes and render damage awards from one community to another?\nSecondly, if we observe differences across communities, what factors might explain those\ndifferences? Civil trial courts operate in a variety of social and political contexts and under\nvarying laws and constraints. This is especially true in the state courts where each state is largely\nallowed to decide how to organize and structure its courts and develop its own institutional\nrules. According to Brace and Hall (1993), \xe2\x80\x9cInstitutional arrangements, which consists of internal\nand external rules as well as organizational structures, determine the aggregation of individual\npreferences within any given institutional body (916).\xe2\x80\x9d As such, varying institutional court\nstructures and contexts might lead to disparate outcomes for similar cases. In order to better\nto understand what these critically important courts do, I begin by discussing the debates\nsurrounding the civil justice system and the history of the tort reform movement. Next, I review\nlegal academic and political science literatures related to the actors in civil justice system and\nstate court institutions. I then use an original data collection of civil jury verdicts in four states\n(Alabama, Indiana, Kentucky, and Tennessee) to examine variation in docket composition, winners\nand losers, and institutional design across the states, with specific attention to tort reforms and\njudicial selection methods. I then discuss possible relationships between institutional variation\nand jury verdicts.\n\nDebating the Civil Justice System\nDuring the ratification debates the Federalists and Anti-Federalists contested the desirability\nof the constitutional protection of civil juries. The Anti-Federalists, preferring strong local\ngovernment, argued that civil juries empowered communities to settle disputes themselves based\non local standards. \xe2\x80\x9cJuries are constantly and frequently drawn from the body of the people, and\nfreemen of the country; and by holding the jury\xe2\x80\x99s right to return a general verdict in all cases\n340 | How Much is A Leg Worth?\n\n\x0csacred, we secure to the people at large, their rightful control in the judicial department (Federal\nFarmer XV, Storing 1981, 320).\xe2\x80\x9d On the other hand, the Federalists maintained that civil juries were\noutmoded and produced inconsistent applications of the law from one jurisdiction to another,\njeopardizing the rule of law. Hamilton argued that, \xe2\x80\x9cThe capricious operation of so dissimilar a\nmethod of trial in the same cases, under the same government, is of itself sufficient to indispose\nevery well regulated judgment towards it\xe2\x80\xa6The best judges of the matter [civil juries] will be the\nleast anxious for a constitutional establishment of the trial by jury in civil cases\xe2\x80\xa6\xe2\x80\x9d(Federalist 83,\nGoldman 2008, 416).\nAlthough the Framers ultimately included the Seventh Amendment\xe2\x80\x99s guarantee of the right to\na jury trial in all disputes involving claims greater than $20, the disagreement between the\nFederalists and the Anti-Federalists closely mirrors the current debate about tort law, a type\nof civil litigation where an injured party or parties seeks compensation by suing another party\nor parties for failing to act in a reasonably responsible way and causing an injury. Today\xe2\x80\x99s tort\nreform advocates frequently espouse the need to protect doctors and businesses from meritless\nlawsuits and limit the amount of money civil juries may award injured parties in order to bring\ndown consumer costs and insurance premiums, especially for medical malpractice litigation.\nGroups seeking to limit the discretion available to jurors argue that trial verdicts do not represent\nrational, consistent analyses of the conflicts at bar, and variability in outcomes negatively affects\nbusinesses and individuals involved in litigation. Opponents of civil juries maintain that when\nindividuals and groups bring frivolous lawsuits and/or when juries award unwarranted or\nexcessively large damage awards, civil courts drive up the cost of doing business and either force\ndoctors and companies out of business or increase consumer costs.\nConversely, those who trust the constitutional mandate of a trial by jury assert that jurors are\ncapable of equitable resolutions. First, proponents of civil juries argue that juries are more\nsensitive to community values and are therefore more capable of deciding liability and\ndetermining damages regarding complex or conflicting social issues than judges. Additionally,\njuries serve to localize courts in the federal structure and allow citizens to govern themselves\n(Chapman 2007). Similarly, Haddon argues that juries provide the opportunity for diverse groups\nto contribute to legal decision-making and \xe2\x80\x9cprovide the local knowledge and experience and\ncommunity connection\xe2\x80\x9d that judges and experts lack (1994, 61). Furthermore, juries might better\nrepresent the community, since jury verdicts reflect group decisions, rather than the decisions of\na single judge (Jonakait 2006). Second, Litan (1993) states that supporters of civil juries maintain\nthat jurors can restrain governmental abuses of power. Finally, Litan states that advocates of civil\njuries rely on De Tocqueville\xe2\x80\x99s belief that civil juries educate citizens about democracy. Marder\n(2003) maintains that juries fulfill an important political role in addition to educating citizens in\nthe democratic process, because juries also make difficult political decisions regarding complex\ncivil disputes.\n\nHow Much is A Leg Worth? | 341\n\n\x0cIn political science, two common definitions of politics include \xe2\x80\x9ccompetition over scares\nresources\xe2\x80\x9d and \xe2\x80\x9cwho gets what, when, why, and how\xe2\x80\x9d (Lasswell 1950). Referring to the politics\nof tort reform, Burke (2002) states, \xe2\x80\x9c[The] battle is highly partisan, with most Republicans taking\nthe anti-litigation side and most Democrats lined up with the plaintiffs. These are struggles over\ndistributional justice\xe2\x80\x94who gets what\xe2\x80\x94 (27).\xe2\x80\x9d These arguments over civil litigation clearly reflect\na disagreement over how resources should be distributed and who should make the allocation\ndecisions, thus representing a classic political debate. Moreover, limitations on individuals\xe2\x80\x99 and\ngroups\xe2\x80\x99 rights to sue for damages directly affect their ability to seek and obtain justice and have\ntheir grievances redressed by a court.\n\nHistory of the Tort Reform Movement\nAlthough efforts to restrict tort law prominently emerged in the 1980s, the call for reform began in\nthe 1970s and continues. Congress has taken up several tort reform proposals, all unsuccessful to\ndate. Congress enacted the first federal tort reform legislation in 1996; however, President Clinton\nvetoed both bills (see Allen 2006 for a more detailed discussion of the history of tort reform).\n1\n\nPresident George W. Bush, in his 2004 State of The Union Address, called for enacting caps on\nmedical malpractice damage awards, once again bringing national attention to the issue. Despite\ncongressional failure to enact reforms during the Bush administration, calls for national legislation\ncontinued, particularly during the Obama administration\xe2\x80\x99s efforts to enact the Affordable Care\nAct. In fact, in the 2011 State of The Union Address, President Obama suggested medical\nmalpractice reform as a potential way to bring down health care costs, in spite of Democrats\xe2\x80\x99\ntraditional opposition to tort reform. In reference to bringing down health care expenses,\nPresident Obama said, \xe2\x80\x9cStill, I\xe2\x80\x99m willing to look at other ideas to bring down costs, including one\nthat Republicans suggested last year \xe2\x80\x94 medical malpractice reform\xe2\x80\x93 to rein in frivolous lawsuits.\xe2\x80\x9d\nThe 2016 Republican Party Platform again called for tort reform to bring down healthcare costs.\n\n2\n\n3\n\nMost recently, in June 2017, the House of Representatives passed a bill that would limit the amount\ninjured plaintiffs could receive for noneconomic damages to $250,000 and limit the amount\nattorneys could collect in medical malpractice cases, but the bill was unsuccessful in the Senate.\n\n1. Office of the Press Secretary. 2004. \xe2\x80\x9cRemarks Made by the President in the State of the Union\nAddress.\xe2\x80\x9d United States Capital, Washington, D.C.\n2. Office of the Press Secretary. 2011. \xe2\x80\x9cRemarks Made by the President in the State of the Union\nAddress.\xe2\x80\x9d United States Capital, Washington, D.C.\n3. See pg. 44 of the 2016 Republican Party Platform.\n342 | How Much is A Leg Worth?\n\n\x0cEven though tort reform advocates failed to achieve federal legislation, tort reform garnered\nconsiderable success in the states, with every state enacting at least one reform.\n\nThe Civil Justice System, Purposes, and Processes\nA civil case involves four sets of key actors, litigants, lawyers, judges, and jurors who act within\nspecific institutional contexts and arrangements. To better understand the civil justice system, I\nwill begin by discussing the trial process as it relates to each actor and review related scholarly\nliterature. I then discuss how overarching institutional features might affect the behavior of\nthe actors. Although this research focuses primarily on the factors that influence civil litigation\noutcomes, it should be noted that trials represent only the final stage of the litigation process\n(Miller and Sarat 1980). \xe2\x80\x9cIt is well known however, that only a small fraction of disputes come to\ntrial and an even smaller fraction is appealed\xe2\x80\x9d (Priest and Klein 1984). Baum (1998) estimates that\n62% of all cases settle without a trial. According to Baum trials settle at very high rates because\ntrials present serious drawbacks for litigants: Litigation is expensive; the parties to the dispute\nlose control of the resolution; judges and juries may deliver unfavorable outcomes; and litigation\nincreases the conflict between the parties. In fact, Engel and Steele (1979) describe the civil\nlitigation process as a pyramid. \xe2\x80\x9cThe life of a legal case can be conceived in terms of five stages:\n(1) the primary event, (2) the response decision, (3) pre-judicial processing, (4) judicial processing,\nand (5) implementation and consequences\xe2\x80\x9d (Engel and Steel 1979, 300). Each stage of the pyramid\ncontains fewer claims as disputes are resolved through various means, with trials representing the\nleast common civil disputes.\n\nLitigants\nEvery civil dispute begins with a plaintiff\xe2\x80\x99s alleged accident or injury and the decision on the part\nof the injured to hire an attorney to represent his/her interests. Civil courts of general jurisdiction\nprocess both contractual disputes (cases in which one party argues that the other failed to\nuphold the terms of a prior legally binding agreement) and torts. Plaintiffs\xe2\x80\x99 injuries can result\nfrom either intentional or unintentional, negligent behavior. Although the civil justice system\ntechnically allows anyone with a legitimate injury to bring a suit, Galanter\xe2\x80\x99s now famous party\ncapability theory exposes how the basic architecture of the legal system serves to systematically\nadvantage the \xe2\x80\x9chaves\xe2\x80\x9d over the \xe2\x80\x9chave-nots\xe2\x80\x9d (Galanter 1974). Scholarship in this vein generally\nrelies on litigants\xe2\x80\x99 status as individuals, businesses, and organizations to serve as proxies for haves\nand have-nots, and in general, studies examining litigant success before U.S. courts find support\nHow Much is A Leg Worth? | 343\n\n\x0cfor the notion that well-resources parties such as businesses garner more favorable outcomes\nwhen compared to individuals (Farole 1999; Songer and Sheehan 1992; Songer, Sheehan, and\nHaire 2000). In particular, the government possesses considerable resources and uses them to\nachieve success rates far greater than other litigant class (Farole 1999; Kritzer 2003). Litigant\nstatus appears to consistently impact the likelihood of achieving a favorable ruling before a court\n(Kinsey and Stalans 1999). Furthermore, disparities in success rates grow as the inequality in\nresources between the parties increases (Songer, Sheehan, and Haire 1999). Since civil trails\nroutinely pit \xe2\x80\x9chave-not\xe2\x80\x9d plaintiffs against better-resourced defendants, Galanter\xe2\x80\x99s theory predicts\nthat plaintiffs might encounter considerable disadvantages in achieving compensation for their\ninjuries in court.\n\nLawyers\nOnce the injured party contacts a personal injury attorney, the attorney must decide whether\nto take the case. Scholars maintain that plaintiffs\xe2\x80\x99 lawyers are important gatekeepers to civil\njustice system who largely determine whether a plaintiff\xe2\x80\x99s grievance becomes litigation (Daniels\nand Martin 2015; Kritzer 1997-98, 1999; Yeazell 2018). According to Priest and Klein (1984), parties\nand their attorneys make strategic calculations when deciding to bring a case to trial based on the\nexpected costs and the probability of favorable and unfavorable outcomes based on the decision\nstandards in place, the uncertainty about the relative merits and potential success of any case, and\n4\n\nthe stakes for the parties involved. Due to attorney strategy, trial courts adjudicate only the most\ncontentious and unpredictable cases.\nMost plaintiff attorneys in civil cases utilize contingency fees, a compensation system where\nlawyers defer payment until the case is successfully settled and receive a portion of their client\xe2\x80\x99s\nwinnings, to attract clients. The inherent risk and uncertainty in contingency fee practice (Daniels\nand Martin 2000, 2002; Kritzer 2004) encourages attorneys to seek speedy case processing\n(Kritzer 1990) and makes settlement and negotiation central features of the civil practice (Kritzer\n1991, 2004, 2015). Whether and how much insurance coverage the defendant possesses largely\n\n4. Priest and Klein\xe2\x80\x99s original article argue that the case selection process would result in plaintiff wins\nrates of around 50%. Although law and economics scholars generally accept the notion that\nattorneys make strategic assessment of their cases\xe2\x80\x99 potential success at trial, tests of the 50%\nhypothesis produce considerably mixed results with some finding support (Kessler, Meites, and\nMiller 1996; Siegleman and Donohue 1995; Waldfogel 1995), while others argue that plaintiff win\nrates diverge considerably from the predicted 50% (Baxter 1980; Eisenberg 1990; Linder 1988; Hylton\n1993; Helland, Klerman, and Lee 2017).\n344 | How Much is A Leg Worth?\n\n\x0cdictates whether an attorney will take the plaintiff\xe2\x80\x99s case (Yeazell 2018). Although insurance does\nnot determine whether a defendant is or is not liable, insurance policies provide the assets from\nwhich damages can be collected, and the policy limits determine whether an attorney can profit\nfrom the claim. If a lawyer will need to invest more money in a case than the defendant\xe2\x80\x99s policy\nlimits, the case is not profitable and an injured plaintiff is unlikely to obtain legal representation,\nregardless of the merit of the plaintiff\xe2\x80\x99s claim. Yeazell argues that, \xe2\x80\x9cIn a world where litigants\npay their own lawyers and in which money damages predominate as a remedy, few will sue an\ninsolvent, or even a poor, defendant\xe2\x80\x9d (2018, 16).\nScholars note that the contingency fee system allows more \xe2\x80\x9chave-nots\xe2\x80\x9d to participate in the\nlegal system (Karsten 1997; Kritzer and Krishnan 1999), since those with strong cases can obtain\nhigh quality representation (Yeazell 2018). Yet plaintiff attorneys routinely face better-resourced\ndefense attorneys who often serve as corporate counsel and typically receive pay regardless of\nthe outcome, which could disadvantage plaintiffs in the negotiation and settlement process. In\nfact, Heinz et al. (1998) observe that 90% personal injury lawyers who represent plaintiffs practice\nin small firms or solo practice. However, Dumas, Haynie, and Daboval (2015) uncover evidence\nthat local plaintiffs\xe2\x80\x99 lawyers, despite practicing in smaller firms with fewer resources, appear to\nuse their familiarity with the local legal community to offset resource imbalances when pursuing\ncases against larger out-of-town firms. Overall, the literature suggests that lawyers working on\na contingency fee basis must strategically screen cases for profitability, and plaintiffs with strong\ncases can obtain legal representation, although that lawyer might be outmatched by the defense\nin terms of resources.\nOnce an attorney accepts a case, and the attorney files an official a document called a complaint\nwith the court, the case becomes a trial. A complaint states the plaintiff\xe2\x80\x99s alleged injury, the\ndefendant\xe2\x80\x99s role in causing that harm, and the desired remedy.\n\nJudges & Jurors\nWhile most civil cases end in settlement (Eisenberg and Lanvers 2009; Galanter 2004; Yeazell\n2018), those cases that survive the pretrial process without settling then go on to trial. The trial\njudge plays a key role in shaping the trial and exercises considerable discretion at the trial and\npretrial phases of litigation. Judges determine jurisdictional questions, limits on discovery, the trial\ndate, pretrial publicity issues, change of venue requests, and motions to dismiss or for summary\njudgment, give jury instructions, render judgment notwithstanding the verdict decisions, and\nmake other important decisions that affect a trial\xe2\x80\x99s resolution. In Democracy in America, Alexis De\nTocqueville ascribes a substantial role to judges and their ability to influence juries in civil trials.\nDe Tocqueville states, \xe2\x80\x9cIt is the judge who sums up the various arguments which have wearied\nHow Much is A Leg Worth? | 345\n\n\x0ctheir [ jurors\xe2\x80\x98] memory, and who guides them the devious course of the proceedings; he paints\ntheir attention to the exact question of fact that they are called upon to decide and tells them\nhow to answer the question of law. His influence over them [ jurors] is unlimited\xe2\x80\x9d (Tocqueville 1948,\n286). If Tocqueville is correct, the judge presiding over a case likely possess a considerable role\nin influencing the outcome, which also suggests a role for institutional rules that condition judges\xe2\x80\x99\nbehavior.\nThe trial concludes after both parties present their arguments, and the judge then instructs the\njury on the points of law relevant for the particular case. Judges typically give two types of jury\n5\n\ninstructions, pattern and general jury instruction. General instructions involve the burden of\nproof, inferences, demeanor of jurors, unanimous verdicts, and admission of expert testimony.\nPattern instructions are specific to the individual case. For example, depending on the case type,\njudges will provide definitions of negligence, wantonness, or other torts. The judge also informs\nthe jurors of the charge on damages. In other words, the judge tells the jury the type of damages\nthe plaintiff seeks (pain and suffering, future damages, punitive damages, or special damages). For\ncivil cases, the jury must evaluate the severity of the plaintiff\xe2\x80\x99s alleged injury. Then, the jury must\ndecide if the defendant\xe2\x80\x99s actions or inactions caused the plaintiff\xe2\x80\x99s injury.\nIf the jury deems the defendant liable, the jury must then determine the appropriate\ncompensation. In Determining Damages (Greene and Bornstein 2003) outline three broad types\nof damages that juries consider. Compensatory damages are damages intended to repay the\ninjured party and return him or her to pre-injury levels of function or replace the loss caused\nby the injury or incident. If the defendant is liable, the jury typically awards compensatory\ndamages. Compensatory damages, also called economic damages, may be awarded for things\nsuch as property damage or monetary loss. Plaintiffs may also seek, and juries sometimes award\npunitive damages. The jury awards punitive damages when the defendant\xe2\x80\x99s conduct goes beyond\nnegligence to the extent of reckless or malicious behavior (Ghiaridi and Kircher 1995). Punitive\ndamages awards are often large sums and serve the purpose of punishing the defendant and\ndeterring similar behavior in the future. Most states only allow punitive damage awards when the\njury first awards compensatory damages; however, some states, such as Alabama and Kentucky,\nallow juries to award only punitive damages. Although tort reform advocates generally support\nlimitations on punitive damage awards, academic scholarship suggest that punitive damage\nawards occur very infrequently (Eisenberg et al. 2002). Plaintiffs may also seek and receive\nnon-pecuniary (non-economic) damages, which include awards for emotional injuries, pain and\nsuffering, and loss of life enjoyment. Punitive and non-pecuniary damage awards often draw ire\nfrom tort reform advocates due to their subjective and unquantifiable nature.\n\n5. For more detail concerning jury instructions, each state bar provides state-specific versions.\n346 | How Much is A Leg Worth?\n\n\x0cInstitutions\nLitigants, lawyers, judges, and jurors all operate within institutional arraignments and societal\ncontexts that structure the decision-making process for each actor. However, since each state\ncontrols its own civil courts, institutional arrangements vary by state, and actors in the legal\nsystem make choices under very different procedural rules and processes. As such, we might\nreasonably expect that outcomes will vary across states based on the institutions in place.\nAccording to Galanter (1999), tort reform constitutes the most recent and salient change to the\ncivil justice system. Haltom and McCann (2004) maintain that the modern tort reform movement\nbegan in the 1970\xe2\x80\x99s as response to a number of expansions in access to the courts, the creation\nof class action lawsuits, a growth in the size of the legal profession, and social reform movements\nthat engaged in strategic legal mobilization through tort law that altered the \xe2\x80\x9ccost, risks, and\nprofits\xe2\x80\x9d for corporations and service providers, especially doctors, who had previously benefited\nfrom restrictions on lawsuits. In addition to lobbying state and national legislatures and other\ndirect attempts at altering tort law, reformers also engaged in mass media campaigns aimed at\ncreating a cultural perception that tort filers are irresponsible, immoral, and greedy and that\nplaintiff\xe2\x80\x99s lawyers are dishonest and self-serving (Haltom and McCann 2004). While reformers\nseek to address several perceived deficiencies in the civil jury system, reforms generally attempt to\naddress two issues, protecting defendants from \xe2\x80\x9cfrivolous\xe2\x80\x9d lawsuits and limiting the size of awards\njuries can assess against them.\nDespite tort reform\xe2\x80\x99s highly salient effect on the civil courts, scholars debate both the causes and\ngoals of the tort reform movement. The American Tort Reform Association (ATRA) is a national\norganization dedicated to reforming the civil justice system. ATRA\xe2\x80\x99s website states that, \xe2\x80\x9cATRA\nwas founded in 1986 by the American Council of Engineer Companies. Shortly thereafter, the\nAmerican Medical Association joined them. Since that time, ATRA has been working to bring\n6\n\ngreater fairness, predictability, and efficiency to American\xe2\x80\x99s civil justice system.\xe2\x80\x9d However, Sloan\nand Chepke (2008) maintain that \xe2\x80\x9c[I]t seems unlikely that it [tort reform] is fundamentally about\nthe goals espoused by its proponents, which are said to benefit people in their roles as patients\nand tax and premium payers (86).\xe2\x80\x9d Other scholars are similarly skeptical of reformers purported\ngoals. Yeazell (2018) argues that tort reform emerged in the late 1970s as a partisan political issue\ndue to significant economic changes such as the rise in health care costs and the decline of\ndomestic manufacturing. \xe2\x80\x9cRepublicans sought to limit civil litigation on the grounds that lawyers\nand litigation were ruining the country\xe2\x80\x94or at least important swaths of the economy\xe2\x80\x94while\nDemocrats defended litigation and proposed more of it as a solution to one or more problems (83).\xe2\x80\x9d\n\n6. Joyce, Sherman. 2007. \xe2\x80\x9cA Message from ATRA President, Sherman Joyce." http://www.atra.org/\nabout/\nHow Much is A Leg Worth? | 347\n\n\x0cWhile in actuality, it seems that civil litigation served as a scapegoat for both parties\xe2\x80\x99 failure to\nensure the public\xe2\x80\x99s access to affordable health care and to protect people from global competition\nand dangerous products. Moreover, in addition to altering the formal rules, tort reform changed\npublic perception of the civil justice system though a massive public relations campaign, altering\nboth the way jurors evaluate torts and how attorneys practice law (Daniels and Martin 2001, 2004).\nAlthough tort reform affects all aspects of tort law, the academic studies that examine the\neffect of tort reform, like the political debate surrounding the subject, tend to focus on medical\nmalpractice. Baker (2005) describes what he calls the \xe2\x80\x9cMedical Malpractice Myth,\xe2\x80\x9d the idea that\nthe vast expansion of medical malpractice lawsuits and pro-plaintiff jury awards, regardless of the\nmerits of the actual case, drive up health care costs for patients and/or force doctors and health\nclinics out of business. Although Baker and other academic researchers largely reject the myth,\nmedical malpractice remains at the forefront of the tort reform debate. Although the precise\nreason for tort reform\xe2\x80\x99s focus on medical malpractice is uncertain, it likely stems at least in part\nfrom the fact that health care costs continue to rise at rates much higher than average incomes\n(Buchmueller, Carey, and Levy 2013), and doctor\xe2\x80\x99s malpractice insurance premiums continue to\nexperience cost spikes (Sloan and Chepke 2008; Yeazell 2018).\nMuch like the discussion about the causes of tort reform, scholars and reformers disagree about\nthe effects of reforms on medical practice. Although research finds that tort reforms decrease\nthe number of tort filings (Avraham 2007; Stewart et al. 2011; Yates, Davis, and Glick 2001) and\ndiminish the size of awards successful parties receive (Dumas 2016; Hyman et al. 2009; Shepherd\n2008; Yoon 2001; Zeiler 2010), many scholars disagree about whether reforms achieve their stated\ngoals. Some research shows that tort reforms reduce insurance company loses (Born, Viscusi,\nand Baker 2009), reduce the cost of employer-sponsored health insurance premiums (Avraham,\nDafny and Schanzenbach 2012), and bring down medical malpractice premiums (Danzon, Epstein,\nand Johnson 2004; Kilgore, Morrisey, and Nelson 2006). Additionally, Avraham and Schanzenbach\n(2010) maintain that tort reforms increase health insurance coverage by bringing down the cost\nof private insurance. Yet other scholarship finds that reforms do not bring down medical\nmalpractice insurance premiums (Baker 2005; Sloan and Chepke 2008; Yeazell 2018), consumer\ncosts (Paik et al. 2012; Sloan and Shadle 2009; Zeiler 2010), or consumer risk (Rubin and Shepherd\n2007; Shepherd 2008). Others argue that the effect of tort reform varies by the type of reform\n(Currie and MacLeod 2008).\nIn addition to debate regarding the effectiveness of tort reforms, scholars also question their\nnormative good (Zeiler 2010). For example, Koenig and Rustad (1995) find that women receive\nnon-economic and punitive damages awards at higher rates than men due to gender differences\nin the types of injuries male and female litigants sustain; therefore, caps on punitive and noneconomic damages disproportionately affect women plaintiffs. Additionally, Finley (2004) shows\nthat women and elderly victims are more likely to experience noneconomic injuries, such as\n348 | How Much is A Leg Worth?\n\n\x0cassault, fertility loss, or abuse and are thus disproportionately impacted by noneconomic damage\ncaps, suggesting that tort reforms produce negative consequents for the more vulnerable\nmembers of society.\n\nData and Analyses\nUnfortunately, the numerous normative and political debates surrounding civil jury decisionmaking suffer from a severe lack of reliable empirical data, preventing a rigorous assessment\nof the claims of either side (Elliot 2004; Galanter 1993; Galanter et al 1994; Saks 1992; Sanders\nand Joyce 1990; Vidmar 1995). Even though state civil trial courts adjudicate most civil disputes\n(Galanter 2004), data limitations result in even fewer studies of these courts than their federal\ndistrict court counterparts. The lack of civil trial court research is especially pervasive in political\nscience where scholars largely study appellate courts, and when political scientists study trial\ncourts, that research typically examines criminal courts. Consequently, these critically important\ninstitutions remain under-studied, and policymakers debate and adopt reforms without the aid of\ncomprehensive research.\nUnlike all federal court or state appellate court decisions, which are published and publicly\navailable, state civil jury verdicts are often unpublished, unavailable to the public, and not\nsystematically archived at all in several states. Consequently, many studies of civil jury decisionmaking rely on post-trial interviews and mock jury simulations, or quantitative studies of relatively\nlimited data sources. Although each method of studying jury verdicts contributes to our\nunderstanding of trial court behavior, each method possesses benefits and limitations.\nPost-trial interviews provide the ability to speak directly with actual jurors; however, these\ninterviews depend on self-reported data that might not adequately reflect jurors\xe2\x80\x99 actual decisionmaking processes and evaluations (Sommers and Ellsworth 2003). Mock trials often seek to\nobserve the influence of individual juror traits on verdicts. However, scholars critique mock jury\nresearch for lacking external validity (Breau and Brook 2007), over-reliance on students (Bray and\nKerr 1982; Devin, Clayton, and Dunford 2001; Howard and Leber 1988) and for lacking the depth,\ndetail, and authenticity of actual trials (Bray and Kerr 1982). The use of experimental methods also\nprevents the exploration of actual trials. On the other hand, scholars critique many quantitative\nstudies that rely on available data sources for their inability to control for case facts, injuries, or\nquality of representation (Saks 2002).\nWhile not immune from flaws, the data collection for this project improves the quality of civil\njury verdict research through the creation of a comprehensive trial court database. Jury verdict\nreporters provide the primary data source utilized in this study. Jury verdict reporters are\nHow Much is A Leg Worth? | 349\n\n\x0cindependent publications primarily used by attorneys that provide a summary of each civil case,\nthe attorneys for the parties, the judge presiding over the case, the type of case, the type of injury\nalleged, and the jury verdict. Practicing attorneys use jury verdict reporters to assess what types\nof cases win, where cases win, and the types of awards juries hand down. The data collection\nfor the volumes runs from November 2008 to November 2009. Alabama, Indiana, Kentucky, and\nTennessee Reporters were selected, because the editors of these volumes attempt to consistently\nreport every jury verdict in each state based on actual trial records rather than self-reported\n7\n\ndata. Although the civil trial courts in Alabama, Indiana, Kentucky, and Tennessee may or may not\nnecessarily represent the nation\xe2\x80\x99s civil courts, these data provide the most comprehensive source\n8\n\nof civil verdicts available. Additionally, these states provide ample variation at the sub-state level\non social, political, and economic indicators. These states also provide the opportunity to explore\nhow civil trial courts operate in four states within relative geographic proximity to each other.\n\nComparing Civil Courts in Four States: Docket Composition, Win/Loss Rates,\nand Awards\nVariation in civil rules, procedures, and outcomes comprised the Federalist\xe2\x80\x99s primary objection\nto a constitutional mandate protecting civil juries. In Federalist 83, Hamilton highlights the\nnumerous dissimilarities in civil jury selection and civil procedure that existed at the time of the\nratification and the potential for inconsistent outcomes. Moreover, current tort reform advocates\nargue the need for reform to create greater \xe2\x80\x9cfairness, predictability, and efficiency (ATRA\nwebsite).\xe2\x80\x9d However, assessing the influences of state-level variation on civil jury verdicts requires\npreviously unavailable comprehensive data. The following research descriptively examines the\ncomposition of courts\xe2\x80\x99 dockets, verdicts, institutional structures, and litigant characteristics to\n9\n\nassess the extent to which case types and outcomes vary across states. Do these courts\n\n7. Scholars have critiqued the use of jury verdict reporters, because some jury verdict reporters rely on\nself-reported data from attorneys or litigants in the state or focus exclusively on large awards\n(Eisenberg et al 2002; Marder 1998; Vidmar, Gross, and Rose 1998). Additionally, some reporters\nfocus exclusively on one region or metropolitan area within as state. These types of data collection\nproduce biased data sources and unrepresentative samples; however, the reporters utilized in this\nstudy attempt to collect the universe of civil jury verdicts for the entire state in a given time-period.\n8. For an overview of the organization and jurisdiction of the civil trial courts and a detailed discussion\nof how judges are selected in each state, see the Appendix.\n9. Although the data reported in the 2009 volume for the four states does not perfectly reflect the\n2009 calendar year, and includes part of 2008, I refer to the data as 2009 in the text for ease of\ndiscussion. Admittedly, one year of data might not adequately represent the docket composition,\n350 | How Much is A Leg Worth?\n\n\x0cadjudicate similar types of cases and reach similar verdicts? If not, what factor might contribute\nto the variation?\n\nState\n\nNumber\nof\nJury\nVerdicts\n\nVerdicts of\nPer Million\nPersons\n\nMedian\nAward\n\nMaximum\nAward\n\n%\n% Punitive\nPro-Plaintiff Damages\n\nAlabama\n\n258\n\n56.1\n\n$30,000\n\n$33,257,694\n\n50%\n\n6.6%\n\nIndiana\n\n244\n\n38.1\n\n$23,380\n\n$157,000,000\n\n62%\n\n1.7%\n\nKentucky\n\n210\n\n48.8\n\n$42,612\n\n$55,900,000\n\n49%\n\n4.5%\n\nTennessee 199\n\n32.1\n\n$16,250\n\n$23,600,000\n\n56%\n\n1.5%\n\nTable 1: Civil Jury Verdicts in Four States (November 2008 to November 2009)\n\nTable 1 reports the number of verdicts in each state in 2009, verdicts per one million residents\n(based on the size of the state\xe2\x80\x99s population in 2009 according to the U.S. Census), the median and\nmaximum awards in each state, the percentage of verdicts favoring plaintiffs, and the percentage\nof verdicts in which the jury awarded punitive damages. In 2009 civil juries in the four states\nadjudicated 926 civil disputes and awarded $520,491,229 in total damages. Of the five states,\nAlabama and Kentucky both possess similar population sizes, near 4.5 million residents.\nTennessee and Indiana also hold comparable populations near 6.3 million persons. Looking at the\nverdicts per-million residents indicates that Alabama juries adjudicate more trials per capita than\nthe other three states (56.1 verdicts per million residents), despite having a population smaller\nthan both Tennessee and Indiana. Indiana trial courts rendered the second largest number of\nverdicts per million persons (48.8). Yet, even in Alabama where civil juries adjudicate the most\ncivil trials, the data show less than 60 trials for every million residents, demonstrating that trials\nare infrequent events. Overall, a comparison of the number of civil jury verdicts in each state,\nrelative to state population, implies that factors beyond population size determine the number of\njury trials in each state.\n\nAwards\nTable 1 also reports the median and maximum initial awards compared to the typical award in\n\nthe types of cases, or the types of verdicts a court handles over a broader period; however, no\nobvious reason emerges to suggest that 2009 radically differs from subsequent or future years. At a\nminimum, the types of cases decided over a given year in a court ought to reflect at least the general\npattern of cases and decisions-making in the civil trial courts in that state.\nHow Much is A Leg Worth? | 351\n\n\x0ceach state. The data reveal the highly skewed nature of awards (awards in 2009 range from zero\ndollars to $157,000,000).\n\n10\n\nIn order the capture the jury\xe2\x80\x99s evaluation of litigants\xe2\x80\x99 claims, the data\n\nset records the jury\xe2\x80\x99s initial award in each case. However, jury awards are often reduced post-trial\neither through settlement, court action, or appeal (Greene and Bornstein 2003; Ostrom, Hanson,\nand Daley 1993). Additionally, successful plaintiffs often recover little if any of the actual award\n(Hans 2008). In an analysis of medical malpractice verdicts in New York City, Vidmar, Grose, and\nRose (1998) observe that 44% of all verdicts were reduced post trial, and that on average, plaintiffs\nreceived 62% of the jury\xe2\x80\x99s initial award. Although plaintiffs may not receive the jury\xe2\x80\x99s initial award,\nthe median and maximum jury awards provide insight into the typical award in a state and the\nfactors that lead juries to generously compensate plaintiffs.\nThe smallest median award, only $16,250 occurs in Tennessee. The median award in Alabama is\n$30,000, while the median awards in Kentucky and Indiana are $42,612 and $23,380, respectively.\nThe median awards in each state suggests that the typical jury award is not especially large. The\ndata also show that juries award punitive damages infrequently. Alabama juries award punitive\ndamages most often of the five states; however, even in Alabama only about 7% of awards include\npunitive damages. Juries award punitive damages in about 2% of trials in Indiana and Tennessee\nand in 4.5% of trials in Kentucky.\nObviously, cases involving extremely large awards represent atypical trials; however, the largest\naward cases provide illustrations of actual litigation where juries delivered million-dollar verdicts,\nand cases involving very large awards garner the most media attention (Bailis and MacCoun\n1996; Garber and Bower 1999). For example, Alabama juries awarded $33,257,694 to the state in\nState of Alabama v. Novartis Pharmaceuticals Corp. et al in which the state claimed that Novartis\nfraudulently overcharged the state\xe2\x80\x99s Medicaid system for drugs (05-219.52) (Miller AJVR 2009, 412).\nNovartis charged the state of Alabama the average wholesale prices (AWP) or average wholesale\nacquisitions costs (WAC) for drugs over a 10-year period. However, the state alleged that the\ntrue cost paid by pharmacies and providers was significantly less than that paid by the state. In\nNovartis\xe2\x80\x99 defense, the company claimed that the state knew that WAC and AWP did not reflect the\nactual prices charged to wholesalers. Additionally, Novartis maintained that the state possessed\nthe right to audit pharmacies and should have done so. The trial lasted half a month and was\nappealed to the Supreme Court of Alabama.\nThe largest award in Indiana occurred in a product liability case. The jury awarded $157,000,000\nto the family of a man who was tragically strangled to death when his treestand collapsed while\nhunting in the case, Estate of Simonton v. L&L Enterprises Inc. (79D01-0602-CT-20) (Miller IJVR\n2009, 475). After finding the man hanging from a tree, the plaintiffs, the wife and stepson of the\n\n10. A zero-dollar award occurs when the plaintiff wins but is not awarded damages.\n352 | How Much is A Leg Worth?\n\n\x0cdeceased, alleged that the company was liable for the defective treestand. The treestand had\nbeen recalled the year before. The company, having previously gone out of business in 2004, did\nnot participate in this litigation. The court granted the estate a default judgment on liability, and\nthe jury issued a verdict on damages only. Although the jury decided to compensate the family,\nthis case presents an example of the type of trial where the plaintiff likely received little if any\nof the actual award since the business probably possesses few if any resources after going out of\nbusiness.\nKentucky jurors awarded $55,900,000 ($53,000,000 of the verdict representing punitive damages)\nto the family of a woman involved in a fatal assault in Wittich v. Flick (08-4294) (Miller KJVR\n2009, 581). The case began when two business partners in an optometry office had a business\ndisagreement that apparently became violent. Flick, one of the business partners, invaded his\ncolleague\xe2\x80\x99s home and shot and killed his girlfriend, Wittich. Flick then waited for his partner to\nreturn home and shot him as well before being subdued (a Kentucky jury also resolved a civil suit\nregarding the second shooting in another trial). Wittich\xe2\x80\x99s estate filed suit against Flick, who by\nthis time was serving a life sentence for her murder. However, like the previous example, the\ndeceased\xe2\x80\x99s family is unlikely to obtain the amount awarded from a convicted murderer serving a\nlife sentence.\nIn Hill v. Moise (000093-06) (Miller TJVR 2009, 288) a Tennessee jury awarded the plaintiff\n$23,600,000 in a medical malpractice suit. Hill, a woman in her early twenties in 2003, found a\nlump in her breast and reported it to her Ob-Gyn. After examining the lump in an office visit by\npalpating the lump, Dr. Moise concluded that the lump was harmless and ran no additional tests.\nIn 2005, during her pregnancy, Hill noticed that the lump appeared larger and visited a second\ndoctor. At that time, medical tests revealed that Hill had breast cancer that had spread to her liver.\nHill\xe2\x80\x99s diagnosis at the time of the trial predicted a small chance of survival, and she was physically\nunable to attend. Hill alleged that Dr. Moise\xe2\x80\x99s failure to perform cancer screening on the lump\nviolated the standard of care and lead to a later diagnosis of the cancer, allowing the cancer to\nspread and preventing early treatment.\nAlthough the cases where juries handed down the largest awards are atypical when compared to\nmost cases, and it is impossible to generalize from a small, non-random set of cases, these four\ncases have several features in common. Of the four cases involving the largest awards, there is\none medical malpractice case, one product liability, one fraud, and one fatal assault claim. All four\ncases involve severe injuries. Case injuries include two deaths, a high probability of death, and a\nclaim for a large monetary loss. In three of the four cases, an individual (or an individual\xe2\x80\x99s estate),\npresumably a party with limited resources in most cases, alleged an injury against the defendant.\nAdditionally, three of the four cases involve a business defendant. At a minimum these cases\nsupport previous research showing that awards amounts are not random and rather are correlated\n\nHow Much is A Leg Worth? | 353\n\n\x0cwith the severity of the plaintiff\xe2\x80\x99s injury (Bovbjerg et al. 1991; Dumas and Haynie 2012; Greene and\nBornstein 2003).\n\nDocket Composition\nDo juries in the four states decide similar cases? To explore this question, Figure 1 provides a\ndescriptive overview of the 2009 dockets in Alabama, Indiana, Kentucky, and Tennessee. Cases\ntypes are aggregated into the seven most common issue areas including auto negligence, premises\nliability, fraud, medical malpractice, products liability, uninsured motorist, and breach of contract.\nA general negligence category captures all other types of negligence claims, while an \xe2\x80\x9cother issue\xe2\x80\x9d\ncategory represents cases not captured by any other category. A comprehensive examination of\nthe cases shaping the dockets in the states demonstrates that civil trial courts handle similar case\nissues; however, the frequency of case types across states varies considerably.\nThe general public likely recognizes trials involving automobile accidents and medical malpractice,\nbut other case types might be less familiar. For example, premises liability cases involve a\nplaintiff\xe2\x80\x99s claim that the defendant negligently maintained an unsafe premise. Felix v. Wal-Mart\n(06-0754) (Miller KJVR 2009, 659) provides an example of typical premise liability case in which a\nwoman slipped and fell on a sticky substance on a Wal-Mart floor and dislocated her hip in the\nfall. Although Wal-Mart prevailed at trial, the plaintiff argued that Wal-Mart failed to maintain a\nreasonably safe floor. Products liability cases involve an allegation that the defendant failed to\nprovide a reasonably safe product. In the product\xe2\x80\x99s liability case, Maroney v. Taurus International\nManufacturing (07-73) (Miller AJVR 2009, 490), a man sued a gun manufacturer for making and\nselling an unsafe product when the gun allegedly fired a bullet into the man\xe2\x80\x99s buttocks after falling\nfrom the man\xe2\x80\x99s pocket and hitting a cement floor, despite the engaged safety (the jury awarded\nMaroney $500,000 in compensatory damages and $750,000 in punitive damages).\nUninsured or under-insured motorist cases involve plaintiffs injured in automobile accidents\nin which the driver at fault lacked insurance or adequate coverage for all the damages. In\nthese cases, the injured plaintiff sues his or her own insurance company for damages caused\nby the uninsured or under-insured driver. Civil trial courts also examine economic cases such\nas fraud and breach of contract. The previously discussed case of State of Alabama v. Novartis\nPharmaceuticals Corp. et al (Miller AJVR 2009, 412) provides a good example of a fraud trial.\nA breach of contract trial occurred following the alleged theft of a man\xe2\x80\x99s SUV. When the man\nmade a claim with his insurer for the loss of the stolen vehicle, the insurance company found the\ntheft fraudulent and denied that claim. Although unsuccessful at trial, the man made a breach of\ncontract claim against the insurer in Green v. Allstate Insurance Company (49D06-0606-PL-27082)\n\n354 | How Much is A Leg Worth?\n\n\x0c(Miller IJVR 2009, 380), alleging that company failed to uphold its contractual agreement to insure\nthe vehicle against theft.\n\nFigure 1: Docket Composition in Alabama, Indiana, Kentucky, and Tennessee\n\nFigure 1 shows that trials involving auto accidents make up close to fifty percent of the docket in\nAlabama (48%), Indiana (49%), and Tennessee (54%). This is consistent with previous scholarship\nfinding that vehicular negligence cases comprise the majority of civil cases (Langton and Cohen\n2008; Ostrom et al. 1996). Unlike the other states, only 21% of the trials in Kentucky entail auto\naccidents. Medical Malpractice cases make up the second largest proportion of the docket in\nAlabama (12%), Indiana (14%), and Tennessee (15%), and represent the largest segment of the\ndocket in Kentucky (29%). The next largest category of trials varies by state. The dockets of all\nfour states suggest that products liability cases occur infrequently.\nHow Much is A Leg Worth? | 355\n\n\x0cOverall, trials involving auto accidents, medical malpractice, and general negligence cases make\nup the majority of the dockets in all four states. Kentucky civil trial courts adjudicate almost twice\nas many medical negligence cases as any of the other states. Indiana courts hear considerably\nmore premises liability cases, and Alabama trial courts resolve more economic (fraud and breach\nof contract) disputes than any other state. Although these data cannot explicate the underlying\ncausal mechanism that generates cases in each state, clear differences emerge in each state\xe2\x80\x99s\ndocket composition.\n\nOutcomes and Awards across Case Issues & Injuries\n\n356 | How Much is A Leg Worth?\n\n\x0cAvg.\n\n$0\n$14,649\n\n$6,800\n\n$37,486\n\n29%\n\n$58,494\n\n$278,172\n\nAvg.\n\nPro\xe2\x80\x91plaint. 68%\n\n$0\n\n$4,903\n\nMedian\n\n45%\n\n$19,305\n\n$75,348\n\nAvg.\n\nPro\xe2\x80\x91plaint. 66%\n\n$0\n\n$10,000\n\nMedian\n\n0%\n\n$3,139645\n\n$771,700\n\nAvg.\n\nPro\xe2\x80\x91plaint. 84%\n\n$35,000\n\n$0\n\n64%\n\nPremises\nLiability\n\nMedian\n\nTennessee Median\n\nKentucky\n\nIndiana\n\nAlabama\n\nPro\xe2\x80\x91plaint. 38%\n\nAuto\nNegligence\n\n$0\n\n22%\n\n$595,001\n\n$0\n\n36%\n\n$515,001\n\n$0\n\n23%\n\nMedical\nMalpractice\n\nN/A\n$1,453,678\n\n$0\n\n26%\n\n$6,666,896 $221,169\n\n$53,338\n\n75%\n\nN/A\n\n$3,139,645\n\n$35,000\n\n64%\n\nFraud\n\n$2,277,479\n\n$1,269,958\n\n25%\n\n$181,275\n\n$52,500\n\n50%\n\n$5,230,000\n\n$0\n\n33%\n\n$3,250,000\n\n$1,250,000\n\n33%\n\nProducts\nLiability\n\n$660,808\n\n$545\n\n50%\n\n$54,327\n\n$1,500\n\n56%\n\n$606,166\n\n$0\n\n48%\n\n$336,724\n\n$5,000\n\n67%\n\nGeneral\nNegligence\n\n$33,097\n\n$13,500\n\n100%\n\n$321,857\n\n$5,660\n\n69%\n\n$75,589\n\n$66,000\n\n75%\n\n$46,343\n\n$20,500\n\n73%\n\nUninsured\nMotorist\n\n$9,717\n\n$0\n\n100%\n\n$1,053,885\n\n$43,623\n\n91%\n\n$43,779\n\n$0\n\n33%\n\n$696,429\n\n$18,645\n\n80%\n\nBreach of\nContract\n\n\x0cTable 2: Outcomes by Case Type\n\nNext, Table 2 examines winners and awards across case types and reports the percent pro-plaintiff\noutcomes and the median and mean awards by case type for each of the four states. First, the data\nshow considerable variation in plaintiff wins rates and median awards across states for the same\nissue areas. For example, plaintiff win rates in auto negligence cases range from 38% in Alabama\nto 68% in Tennessee, while median awards range from $0 in Alabama to $10,000 in Indiana. On\nthe other hand, the data show that plaintiffs consistently encounter considerable difficulty when\npursuing premises liability and medical malpractice cases in all four states, as evidence by the\nlow percentages of plaintiff wins. Plaintiffs also win over 70% of uninsured motorist cases in all\nfour states. Given that each uninsured motorist case involves an injured individual suing his/her\ninsurance company, the considerably higher win rates in this category might support the \xe2\x80\x9cdeep\npockets\xe2\x80\x9d hypothesis, which suggests that juries treat corporate and business defendants more\nharshly due to their perceived greater ability pay (Bornstein and Rajki 1994; Dumas and Haynie\n2012; Hans 2000). Furthermore, the table shows that the median award for several issue areas and\nstates is no award, indicating that half of the plaintiffs in these cases receive no compensation.\nInterestingly, zero dollars is the median award in medical malpractice cases for all four states,\nand the average medical malpractice award in each state ranges from $515,000 in Alabama to $1.5\nmillion in Tennessee. Given that medical malpractice cases often feature seriously injured parties,\ntypical jury awards in these cases appear lower than the medical malpractice debate might imply.\nOn the other hand, products liability cases tend to produce low plaintiff award rates, but relatively\nlarge awards. Taken together verdicts across the states evidence both considerable variation and\nconsistency. Plaintiff win and award rates differ noticeably across issue areas and across states;\nhowever, jurors in each state are most supportive of plaintiffs in uninsured motorist cases and\nleast supportive in premises liability and medical malpractice cases.\n\n358 | How Much is A Leg Worth?\n\n\x0cAlleged Injury\n\nAlabama Indiana Kentucky Tennessee Total\n\nProperty\nLoss/Damage\n\n23\n\n6\n\n4\n\n1\n\n34\n\nMonetary Loss\n\n32\n\n10\n\n25\n\n2\n\n69\n\nEmotional\n\n3\n\n2\n\n7\n\n2\n\n16\n\nBroken Bone(s)\n\n8\n\n14\n\n16\n\n17\n\n56\n\nDeath\n\n25\n\n22\n\n21\n\n11\n\n82\n\nInjury Required\nSurgical Repair\n\n22\n\n26\n\n24\n\n11\n\n84\n\nSlip and Fall\n\n1\n\n11\n\n3\n\n9\n\n25\n\nSoft Tissue\n\n32\n\n51\n\n31\n\n84\n\n200\n\nOther Physical\nInjuries\n\n111\n\n96\n\n76\n\n57\n\n270\n\n6\n\n4\n\n5\n\n92\n\nOther Non-Physical\n3\nInjuries\nTable 3: Types of Injuries\n\nTo further examine how case facts effect verdicts, I also code for eight injury categories ranging\nfrom emotional and soft tissue (scratches, bruises, and whiplash, etc.) to extreme injuries such\nas paralysis and death. Table 3 reports the frequencies of alleged injuries in cases coming before\ncivil juries across the states. Interestingly, while the data show substantial variation in case\noccurrence across states, the results suggest that the frequency of alleged injuries in civil trials is\nrelatively evenly distributed. Although previous research finds that soft tissue injuries garner less\ncompensation than other types of injuries (Bovbjerg et al. 1991), suffer from a lack of familiarity\namong the general public (Hans 2008), and are often viewed as illegitimate (Hans 2008), soft\ntissue injuries are the most frequent type of injury in civil trials in the five states (195 total cases,\ncombined). While the data cannot explain the prevalence of soft tissue injuries in civil trials, soft\ntissue injuries might simply occur more commonly than other injuries. On the other hand, the\ndifficulty in proving a soft tissue injury might encourage cases involving soft tissue symptoms to\ngo to trial rather than settling beforehand. The second and third most frequent injuries occur\nin cases in which the plaintiff underwent a surgery as a result of an accident or died. Injuries\ninvolving broken bones are the fourth most common in all states. Combined, physical injuries\naccount for 77.2% of civil trials (712 our 923 cases). The most interesting difference between states\nis the far greater frequency of property and monetary disputes in Alabama. While the other states\nappear to decide cases involving economic injuries relatively infrequently, Alabama juries decide a\ncomparatively large number of these cases in a given year.\n\nHow Much is A Leg Worth? | 359\n\n\x0cLitigants\nState\n\nIndividual v.\nIndividual\n\nIndividual v.\nBusiness\n\nAlabama\n\n54.2%\n\n30%\n\nIndividual v.\nGovernment\n0\n\nIndividual v.\nOther\nDefendant\n1.2%\n\nPro\xe2\x80\x91plaintiff (45%)\n\n(60%)\n\nIndiana\n\n62.7%\n\n19.7%\n\n2.7%\n\n2.5%\n\nPro\xe2\x80\x91plaintiff (70%)\n\n(46%)\n\n(43%)\n\n(67%)\n\nKentucky\n\n36%\n\n4.7%\n\n1%\n\nPro\xe2\x80\x91plaintiff (48%)\n\n(43%)\n\n(10%)\n\n(100%)\n\nTennessee\n\n62.3%\n\n26.6%\n\n2.5%\n\n1.5%\n\nPro\xe2\x80\x91plaintiff (62%)\n\n(53%)\n\n(40%)\n\n(33%)\n\nAll States\n\n28%\n\n2%\n\n2%\n\n(55%)\n\n(32%)\n\n(64%)\n\n45.5%\n\n56%\n\nPro\xe2\x80\x91plaintiff (57%)\n\n(66%)\n\nTable 4: Plaintiff and Defendants Classes\n\nIn evaluating who participates in litigation, I code each plaintiff and defendant as an individual,\nbusiness, or government. Remaining classes of litigants such as organizations or estates are\ncoded as \xe2\x80\x9cother.\xe2\x80\x9d This coding scheme is consistent with prior studies. Examining the types of\nlitigants participating in civil trials and pro-plaintiff verdicts across the states in Table 4, the\ndata demonstrates that the vast majority of all cases involve an individual plaintiff suing an\n11\n\nindividual defendant. The next largest category of litigants entails individuals seeking damages\nfrom business defendants. Only 4% of cases involve an individual challenging the government or\nany other class of defendant. Individual plaintiffs, Galanter\xe2\x80\x99s prototypical \xe2\x80\x9chave-nots,\xe2\x80\x9d account for\n88% of plaintiffs in the four states. The distribution of litigant classes across states suggests that\nthe combinations of litigants involved in civil trials are fairly consistent across states.\nWhen we examine how \xe2\x80\x9chave-not\xe2\x80\x9d plaintiffs fair against \xe2\x80\x9chave\xe2\x80\x9d defendants, the data shows that\n\xe2\x80\x9chave-nots\xe2\x80\x9d appear to do somewhat better than theory would expect. The data also implies\n\n11. Auto negligence cases always involve an individual plaintiff suing an individual defendant. However,\nthe defendant typically relies on legal representation provided by an insurance company. Arguably,\nthese cases might be considered individual v. business; however, all four states under study have\nnon-introduction clauses, preventing the admission of the defendant\xe2\x80\x99s insurance or policy limits as\nevidence. Additionally, jurors are instructed not to consider the defendant\xe2\x80\x99s ability to pay.\n360 | How Much is A Leg Worth?\n\n\x0cthat the contingency fee system does allow \xe2\x80\x9chave-not\xe2\x80\x9d plaintiffs to obtain quality representation.\nAlthough plaintiffs do not appear to suffer an overwhelming disadvantage in any state, the data\nsupports the dominance of the government in court cases (Kritzer 2003), evidenced by the very\nlow plaintiff success rates when the government if the defendant.\n\nInstitutions & Tort Reforms\n\nHow Much is A Leg Worth? | 361\n\n\x0cMixed\n\nNon-Partisian\n\nIndiana\n\nKentucky\n\nTennessee Partisan\n\nX\n\nPartisan\nElections\n\nAlabama\n\nX\n\nX\n\nPunitive\nDamage\nCaps\n\nJudicial\nSelection\nMethod\n\nState\n\nX\n\nX\n\nX\n\nX\n\nX\n\nX\n\nCollateral\nNon-economic\nSource\nDamage Caps\nRule\n\nX\n\nX\n\nX\n\nX\n\nJoint &\nSeveral\nLiability\nX\n\nFrivolous\nLawsuit\nPenalties\n\n25\n\n12\n\n16\n\n29\n\nTotal # of Tort\nReforms\nEnacted\n\nX\n\nX\n\nX\n\nX\n\nInstitutional\nComparative\nReview\nFault\nBoard\n\n\x0cTable 5: State Institutions\n\nFinally, I examine institutional variation across states. While courts in each state appear to\nadjudicate similar case issues with similar litigants, each court operates under very different\ninstitutional frameworks. If institutional rules and frameworks affect the decision calculus for\nactors in their respective legal systems as previous research suggests (Brace and Hall 1990),\nvariation across states might at least partially explain varying court dockets and trial outcomes\nacross sates. Table 5 reports the institutional arrangements explored in this study. Although\nthe influence of judicial selection and retention methods on trial court behavior remains\nunderstudied, previous research demonstrates that judicial selection and retention methods\nstrongly influence decision-making at the state supreme court level, especially in highly salient\ncases (Brace and Hall 1990, 1993; Brace and Boyea 2008; Caldarone, Canes-Wrone, and Clarke\n2009; Canes-Wrone, Clark, and Park 2012). If judges shape jury decision-making through their\nrulings or courtroom demeanor, jury verdicts might vary across judicial selection and retention\nmechanisms. In fact, Rowland, Traficanti, and Vernon (2010) argue, that every jury trial is actually\na bench trial. \xe2\x80\x9cWhat the constitutional right to a jury trial actually guarantees citizens is the right\nto a trial in which a jury decides a dispute largely de\xef\xac\x81ned and engineered by the exercise of judicial\ndiscretion (for a detailed discussion of judicial selection in each state\xe2\x80\x99s trial courts, see Appendix\nA).\xe2\x80\x9d (186).\nFurthermore, the method states use to determine fault in the jury decision-making process\nconstitutes a significant institutional difference between states. Juries in states utilizing\ncomparative fault can adjust awards to offset the plaintiff\xe2\x80\x99s contributing negligence. Defense\nverdicts can also occur in states that use comparative fault in cases in which the jury assesses\nplaintiff fault over a certain threshold, usually when the jury assess more than 50% fault to the\nplaintiff. In Alabama, civil courts rely on the contributory negligence standard to determine fault\nwhere jurors use a two-stage process to determine fault. First, jurors must determine if the\ndefendant is negligent. If jurors find the defendant negligent, they then decide if the plaintiff\ncontributed in any way to his or her injury. Under contributory negligence, if the plaintiff was\neven 1% at fault, the plaintiff cannot recover damages.\nState tort reform adoptions seek to deliberately reshape how trial courts reach decisions, as such\nwe would expect that the adoption of various tort reforms to alter trial outputs. Although much of\nthe debate surrounding tort reform focuses on medical malpractice, states largely adopt general\nreforms that affect outcomes for all tort cases (for more detail about tort reform in these states,\nsee Appendix B). Table 5 reports whether each stated adopted the five most common tort reforms\n\nHow Much is A Leg Worth? | 363\n\n\x0c12\n\n(Schmidt, Browne, and Lee 1997). On the other hand, the Medical Review Board reform seeks to\nspecifically address medical malpractice cases.\nAdvocates of tort reform often favor the creation of medical review boards, panels of medical\nexperts, to independently review the merits of medical malpractice claims prior to a formal trial to\nprevent \xe2\x80\x9cmeritless\xe2\x80\x9d cases from reaching trial. Half of US states have enacted medical malpractice\nreview panels (Nathanson 2004). Review panels vary by state, but panels generally comprise 3-7\nmembers, often one may be an attorney, another a health care provider, and/or judge, and some\ninclude lay persons. Although more informal than a trial, panels can subpoena witnesses and\ndocuments, hear testimony, and make an initial malpractice ruling (Sloan and Chepke 2008). The\nstate of Indiana requires that all plaintiffs alleging medical malpractice take their claims before an\ninstitutional review board prior to trial. Although the board\xe2\x80\x99s decision is not binding, the board\xe2\x80\x99s\ndetermination is admissible as evidence at the trial and likely significantly influences the plaintiff\xe2\x80\x99s\nchances of success at trial. The review board first determines if a breach in the standard of care\noccurred in the plaintiff\xe2\x80\x99s treatment. Then, if the board finds a breach in the standard of care, the\nboard determines whether that deviation in care caused the plaintiff\xe2\x80\x99s injury.\nReview Board Decision Plaintiff Verdicts Out of the Total % Pro-Plaintiff Verdicts\nFor the Plaintiff\n\n6/7\n\n85.7%\n\nMixed Decision\n\n1/6\n\n16.7%\n\nFor the Defense\n\n4/16\n\n25%\n\nTable 6: Institutional Review Board Decisions\n\nIn 2009 Indiana juries decided 33 medical malpractice cases. Of those, the reporter provides\nthe review boards\xe2\x80\x99 decision in 29 trials. Table 4 shows the review boards\xe2\x80\x99 decisions and the\ncorresponding jury verdicts. The table reports cases in which the review issued a unanimous\nvote in favor of the plaintiff; in other words, the board determined that the doctor or medical\nfacility breached the standard of care, causing the plaintiff\xe2\x80\x99s injury. Mixed decisions occur when\nthe board cannot agree on one or both parts of the decision. Decisions in favor of the defense\nresult when either the board unanimously agrees that the doctor or medical facility upheld the\nstandard of care, or that the breach in the standard of care was causally unrelated to the plaintiff\xe2\x80\x99s\ninjury.Overall, plaintiffs in Indiana won 11 out of 29 medical malpractice cases tried in the state in\n2009. However, examining the table indicates that of the seven cases in which the review board\n\n12. The five most common tort reforms are, collateral source rules (prevent attorneys from admitting\nthe defendant\xe2\x80\x99s insurance coverage into evidence), joint and several liability (limit the number of\nparties from which a plaintiff can seek and recover compensation), noneconomic damage caps,\npunitive damage caps, and sanctions on frivolous lawsuits.\n364 | How Much is A Leg Worth?\n\n\x0cfound that a breach in the standard of care was causally related to the injury, plaintiffs won 6\n(85.7%). Although the board found in favor of the plaintiff in only six cases, the plaintiffs\xe2\x80\x99 success\nrates in those cases are substantially higher than the overall success rates for plaintiffs pursuing\nmedical malpractice claims. On the other hand, the observations suggest that the review board\nissues considerably more verdicts in favor of the defense and mixed opinions than decisions in\nfavor of the plaintiff. Sixteen decisions of the Institutional Review Board favored the defense while\n6 were mixed decisions. However, it appears that even mixed decisions from the review board hurt\nplaintiffs\xe2\x80\x99 changes of success. When the board issued a mixed decision, juries decided only one out\nsix cases (16.7%) in favor of the plaintiff. Interestingly, juries delivered more pro-plaintiff verdicts\nin trials where the board found against the plaintiff than in cases with mixed decisions from the\nboard. Of cases in which the board found no breach in the standard of care or no injury to plaintiff\nas a result of the breach, plaintiffs won 4 of 16 trials (25%).\n\nDiscussion\nThese data provide the most comprehensive database of civil trials to date, allowing for an\nin-depth investigation of the dockets, case outcomes, issues and injuries, and litigants in the\ncivil jury trials in each state. Examining courts\xe2\x80\x99 dockets comprehensively shows that the types\nof cases adjudicated do not vary considerably across the states; however, the percent of the\ndocket allocated to each issue area changes considerably from state to state. Additionally, factors\nbeyond the population size appear to determine the volume of cases adjudicated in each state.\nDescriptive comparison of jury verdicts across states also provides evidence that considerable\nvariation occurs between states in terms of who wins and who loses, and how much successful\nparties receive. But, is variation good or bad? Should we continue to rely on juries to make\nimportant dispute resolution and resource allocation decisions? The answer depends in part on\nwhat society expects from juries. If one is concerned with consistency, like the Federalists, the\nresults provide evidence to support their gravest concerns. On the one hand, those that favor\nallowing lay people to solve disputes and determine damages argue that juries apply community\nvalues. Under this view, one could consider variation from one community to another as evidence\nthat juries are functioning as they should. However, the significant difference in institutional\narrangements from one state to the next likely accounts for at least a portion of the observed\nvariation in outcomes. States vary in terms of the tort reforms enacted, the method used to\nselect and retain judges, and the fault standards juries apply, etc. All these factors likely contribute\nto differences in litigant outcomes across states. Although additional research is need to more\nfully discern how state institutions affect litigant outcomes, the data provide support for the\nFederalists\xe2\x80\x99 contention that states employ dissimilar systems of civil law, engendering variable\noutcomes. As long as states adopt widely dissimilar civil justice systems, juries will likely continue\nHow Much is A Leg Worth? | 365\n\n\x0cto reach disparate verdicts. Ironically, tort reform, despite its champions\xe2\x80\x99 promises of greater\nconsistency, might actually yield the unintended consequence of producing greater variation in\ncourt outcomes as states adopt different types and numbers of reforms.\nOn the other hand, the data evidence several similarities between courts in each state and suggest\nreasons for optimism, even for those critical of the civil justice system. Despite differences in\ndocket composition, auto negligence and medical malpractice cases encompass most trials in\neach state. However, plaintiffs garner comparatively few wins in medical malpractice cases in\neach state. For those concerned that juries award large sums to sympathetic plaintiffs who suffer\nmedical injuries, regardless of the merits of their cases, these results should assuage some of their\nconcerns. On the other hand, the data provide cause for apprehension for those who worry that\nvictims of medical malpractice have little recourse. Moreover, awards appear sensitive to both\ninjury severity and perceived resources. The data suggest that juries\xe2\x80\x99 awards are not as capricious\nas some reformers suggest; however, wealthy defendants may well pay more when the they\nlose. Investigating the participants in civil litigation shows that individuals are the most frequent\nparticipants in civil litigation, and they initiate the majority of civil trials. Fifty-six percent of\ntrials involve an individual suing another individual, and 88% of all trials involve an individual\nplaintiff. However, plaintiff win rates imply that plaintiffs with strong cases can obtain quality\nrepresentation and offset at least some of the resource imbalances they might suffer.\nObviously more research is needed to better ascertain the connection between institutions and\njury verdicts and explain the causes of case outcome variability. Yet the evidence presented\nhere provides both causes for optimism and trepidation, depending on one\xe2\x80\x99s side of the debate.\nWhether or not we choose to continue to entrust civil juries to settle disputes, right wrongs,\nand punish wrongdoers with monetary compensation, depends on what we want our civil justice\nsystem to do and who we want to make these decisions. Although adoption of national reforms\nmight produce greater consistency in outcomes, to the pleasure of Federalists and tort reformers,\ntaking the authority away from states and local jurors would undoubtably limit the ability for\nstates and community members to settle disputes for themselves as Anti-Federalists initially\nfearer. Furthermore, if we take decision-making power away from juries, who should we\nentrust? Ultimately, questions over individuals\xe2\x80\x99 and groups\xe2\x80\x99 rights to sue for damages and have\ntheir grievances redressed by a court are fundamental questions about justice and politics that will\nhopefully be decided on more comprehensive future research.\n\n366 | How Much is A Leg Worth?\n\n\x0cReferences\nAllen, Michael P. 2006. \xe2\x80\x9cA Survey and Some Commentary on Federal Tort Reform.\xe2\x80\x9d Akron Law\nReview 39(4): 909-41. 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Sheehan. 1992. \xe2\x80\x9cWho wins on appeal? Upperdogs and underdogs\nin the United States courts of appeals,\xe2\x80\x9d 36 American Journal of Political Science 36:(1): 235-58. (\xe2\x86\xb5\nReturn)\nSonger, Donald R., Reginald S. Sheehan, and Susan Brodie Haire. 1999. \xe2\x80\x9cDo the Haves Come out\nahead over Time-Applying Galanter\xe2\x80\x99s Framework to Decisions of the US Courts of Appeals,\n1925-1988.\xe2\x80\x9d 33 Law & Society Review 33(4): 811-32. (\xe2\x86\xb5 Return)\nSonger, Donald R., Reginald S. Sheehan, and Susan B. Haire. 2000. Continuity and Change on the\nUnited States Courts of Appeals. Ann Arbor, MI: University of Michigan Press. (\xe2\x86\xb5 Return)\nStewart, Ronald M., Kathy Geoghegan, John G. Myers, Kenneth R. Sirinek, Michael G. Corneille,\nDeborah Mueller, Daniel L. Dent, Steven E. Wolf, and Basil A. Pruitt Jr. 2011. \xe2\x80\x9cMalpractice Risk and\nCost Are Signi\xef\xac\x81cantly Reduced after Tort Reform.\xe2\x80\x9d Journal of the American College of Surgeons\n212(4): 463\xe2\x80\x9367. (\xe2\x86\xb5 Return)\nStoring, Herbert J. 1981. The Complete Anti-Federalist. Chicago: Chicago University Press. (\xe2\x86\xb5\nReturn)\nShapiro, Martin. 1981. Courts: A Comparative and Political Analysis. Chicago: University of Chicago\nPress. (\xe2\x86\xb5 Return)\nTocqueville, Alexis de & Bowen, Francis, 1811-1890 & Reeve, Henry, 1813-1895 & Bradley, Phillips,\n1894- (1948). Democracy in America. Knopf, New York. (\xe2\x86\xb5 Return)\nVidmar, Neil. 1995. Medical Malpractice and The American Jury: Confronting myths about jury\nincompetence, deep pockets, and outrageous damage awards. Ann Arbor: University of Michigan\nPress. (\xe2\x86\xb5 Return)\nVidmar, Neil, Felicia Gross, and Mary Rose. 1998. \xe2\x80\x9cJury Awards for Medical Malpractice and PostVerdict Adjustments of those Awards.\xe2\x80\x9d ePaul Law Review 48(2): 265-299. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nWaldfogel, Joel. 1995. \xe2\x80\x9cThe Selection Hypothesis and the Relationship between Trial and Plaintiff\nVictory.\xe2\x80\x9d Journal of Political Economy 103(2): 229-60. (\xe2\x86\xb5 Return)\nYates, Jeff, Belinda Creel Davis, and Henry R. Glick. 2001. \xe2\x80\x9cThe Politics of Torts: Explaining\nLitigation Rates in the American States.\xe2\x80\x9d State Politics and Policy Quarterly 1(2): 128\xe2\x80\x9343. (\xe2\x86\xb5\nReturn)\n\n374 | How Much is A Leg Worth?\n\n\x0cYeazell, Stephen. 2018. Lawsuits in a Market Economy. Chicago: University of Chicago Press. (\xe2\x86\xb5\nReturn 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3) (\xe2\x86\xb5 Return 4) (\xe2\x86\xb5 Return 5) (\xe2\x86\xb5 Return 6) (\xe2\x86\xb5 Return 7) (\xe2\x86\xb5 Return 8)\nYoon, A. 2001. \xe2\x80\x9cDamage Caps and Civil Litigation: An Empirical Study of Medical Malpractice\nLitigation in the South.\xe2\x80\x9d American Law & Economics Review 3(2): 199-227. (\xe2\x86\xb5 Return)\nZeiler, Kathryn. 2010. \xe2\x80\x9cMedical Malpractice Liability Crisis or Patient Compensation Crisis?\xe2\x80\x9d DePaul\nLaw Review 59(2): 675\xe2\x80\x9393. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3)\n\nAppendix A. Organization & Jurisdiction of Trial Courts in\nAlabama, Indiana, Kentucky, and Tennessee\nTrial courts of general jurisdiction in Alabama, called circuit courts, comprise 41 geographic\ncircuits, representing 47 counties, and hear cases involving damage claims of $3,000 or more.\nAlabama Circuit Courts decided 258 civil cases in 2009. Alabama selects residents for jury service\nfrom lists of all registered drivers. Judges in Alabama run for reelection in partisan judicial races.\nCircuits in Indiana represent 91 counties, each with its own circuit, expect for Dearborn and Ohio\ncounties which share a circuit. In 2009 Indiana civil juries decided 244 claims. Both superior and\ncircuit courts in Indiana have general jurisdiction over civil disputes. However, some counties only\nmaintain circuit courts. In counties without superior courts, the circuit courts also hear small\nclaims. Circuit courts in counties with superior courts hear cases involving disputes involving\ndamage claims greater than $6,000 and appeals from superior courts. Of all the states examined\nin this study, Indiana maintains the most decentralized system and allows individual circuits\nthe greatest discretion in determining the circuits\xe2\x80\x99 jurisdiction and judicial selection methods.\nCounties in Indiana employ partisan, nonpartisan, and retention elections per the preference of\nthe county. The Indiana Supreme Court, Judicial Center, Jury Committee, Department of Revenue\n(DOR), and Bureau of Motor Vehicles (BMV) create a comprehensive database of potential jurors.\nThe Kentucky circuit courts comprise 57 circuits made up of a county or counties and rendered\n210 verdicts in 2009. Kentucky Circuit courts have general jurisdiction over cases involving\ndisputes over $4,000. Circuit judges serve 8-year terms and are retained through non-partisan,\ncircuit-based elections. Kentucky compiles a list of available jurors based on state tax rolls,\nregistered voter lists, and driver\xe2\x80\x99s licenses. Tennessee divides its 95 counties into 31 judicial\ncircuits. Tennessee counties determine the jurisdiction of the courts in their corresponding\ncircuits. Judges in Tennessee stand for reelection in partisan elections every eight years. All judges\nin the state run for reelection at one time. Tennessee civil juries decided 190 disputes in 2009.\nHow Much is A Leg Worth? | 375\n\n\x0cAppendix B. The Five Most Common Tort Reforms in in\nAlabama, Indiana, Kentucky, and Tennessee\nDamage caps in some states limit the overall amount a plaintiff may receive on compensatory\ndamages and/or total awards. In states with damage caps, the trial judge enters a post-trial\njudgment that reduces awards exceeding the statutory maximum post trial. Non-economic\ndamage caps limit the amount parties may receive for injuries such as pain and suffering.\nCollateral source rules prevent attorneys from admitting the defendant\xe2\x80\x99s insurance coverage into\nevidence. And joint and several liability reforms limit the number of parties from which a plaintiff\ncan seek and recover compensation. For example, if a jury finds three defendants liable and\nawards a $1,000 verdict, a plaintiff in a state without this reform could attempt to collect $1,000\nfrom each party. In a state with the reform, each defendant would pay a specified portion of the\n$1,000. Finally, sanctions on frivolous lawsuits punish plaintiffs for brining meritless claims, often\nby requiring them to pay the defendant\xe2\x80\x99s legal fees. Other types of damage caps stipulate that\npunitive and non-economic damage awards must be within a certain ratio of the compensatory\naward. Hard caps on punitive damages limit the total amount of punitive damages a jury may\naward. Indiana limits damage awards in medical malpractice suites to $1,250,000 and awards\nagainst municipalities to $500,000. Although lacking strict damage caps like Indiana, defendants\nin Kentucky can request that judges cap damages to a certain amount on a case by case basis;\nthereby, giving judges in Kentucky far greater control of the damage awards than judges in other\nstates.\n\n376 | How Much is A Leg Worth?\n\n\x0c16. On Their Best Behavior?\nForeign Plaintiffs in Chinese Administrative Litigation\nJOHN WAGNER GIVENS\n\nFrom Apple to Walmart, Louis Vuitton to McDonalds, multination corporations increasingly buy,\nsell, manufacture, and invest all over the world, including in many countries with less-developed\nlegal systems. Along with these multinational corporations come the in-house lawyers and\nmultinational law firms that represent them. According to the theory of legal convergence, this\nshould have a strong positive impact on rule of law in less-developed countries. Legal convergence\nargues that \xe2\x80\x9c\xe2\x80\x98western\xe2\x80\x99 business and legal practices are becoming universal as a consequence either\nof the globalization of capital or the diffusion of professional training and norms\xe2\x80\x9d (Appelbaum\n1998). Dezalay and Garth, two advocates of legal convergence, see the law firms and foreign\nlawyers that follow multinationals as \xe2\x80\x9cmoral entrepreneurs\xe2\x80\x9d (1998, 33), the increasing presence\nof which are \xe2\x80\x9ckey engines of legal transformation\xe2\x80\x9d (Dezalay and Garth 1998, 257). A broader but\nparallel view holds that \xe2\x80\x9cinvestment by U.S. firms [in countries where human rights are less well\ndefended] may well help move human rights in a positive direction\xe2\x80\x9d (Spar 1998, 12). In short,\nthere are good theoretical reasons to believe that multinationals and their legal representation are\nhaving a positive impact in countries with less developed legal systems.\nIn this chapter, I assess whether and how legal convergence is happening in the People\xe2\x80\x99s Republic\nof China (PRC) by examining how multinationals and their foreign legal counsel operate. I will\ndo so by focusing on if, when, and how multinational corporations engage in administrative\nlitigation\xe2\x80\x94that is, suing the Chinese state. This focus is appropriate because the \xe2\x80\x9csecurity of\nproperty against arbitrary government confiscation\xe2\x80\x9d (Clarke 2003a, 109) is perhaps the most\nimportant legal concern of multinationals operating in countries with a weak legal system and\nadministrative litigation is the ultimate legal remedy against such confiscation. Additionally,\nadministrative litigation should be an extremely important venue for protecting the rights of\nindividuals against an overzealous state. If multinationals and their law firms are contributing to\nthe development and convergence of China\xe2\x80\x99s administrative law system, it then follows that they\nwould also be contributing, at least indirectly, to strengthening China\xe2\x80\x99s human rights regime.\nIf the theory of legal convergence holds, the growing presence of foreign companies and their\nlegal staffs should be pushing China to converge on international standards of rule of law and\nperhaps even human rights (Halverson 2004; Hung 2004; Potter 2001). In some sectors, such\nprogress is clearly visible\xe2\x80\x94for example, in a specialist intellectual property (IP) court in Beijing.\nThere, representatives of multinational companies routinely bring suits against China\xe2\x80\x99s trademark\nOn Their Best Behavior? | 377\n\n\x0c1\n\nand patent review and adjudication boards, and litigation mostly follows international standards.\n\nYet in any given year, outside of this single tribunal in a single court in a single city in a country\nof over a billion people, only a handful of foreign actors will directly challenge the Chinese state in\ncourt, and their impact does not meet the expectations of legal convergence.\n2\n\nMy data demonstrate that disagreements between foreign multinationals and other parts of\nthe Chinese state are generally resolved through extralegal negotiation with officials. Foreign\ncompanies are anxious not to endanger relationships with local governments, and local officials\nare eager to encourage international investment, which should help advance their careers\n(Minzner 2009b, 66). Parties prefer to avoid litigation in most contexts (Nader and Todd 1978), but\nmultinationals in China generally will not even consider suing the state. Even when the situation\nwould seem to call for litigation, they prefer to turn to extralegal resources and tactics, and\nmany multinationals take advantage of special treatment to skirt Chinese law. These findings\ncast doubt on legal convergence and the contributions of globalization, development, and foreign\ninvolvement in countries with developing legal systems.\n\nThe Case: The People\xe2\x80\x99s Republic of China\nIn this chapter, I use the case of the PRC to investigate how foreign companies actually interact\nwith the legal systems of developing countries. China is an incredibly large and fast-developing\neconomy with an already substantial and ever-increasing pool of foreign investors (Hannon and\nReddy 2012), companies, and legal professionals but relatively weak rule of law. This makes China\na particularly important case for several reasons.\nFirst, coming out of the Mao era and in particular the Cultural Revolution (1966\xe2\x80\x9376), the PRC had\none of the least developed legal systems in the world. During the Cultural Revolution, China\xe2\x80\x99s legal\nsystem almost entirely ceased to function. This means that China, especially early in its reform\nera, is a good example of a country with relatively poor rule of law (Lubman 1999).\nSecond, China\xe2\x80\x99s tremendous size makes it an important case for almost any area of research. With\na population of approximately 1.4 billion people in 2019, China makes up almost a fifth of the\nworld\xe2\x80\x99s population. Its sheer size means that even when findings apply only to the PRC, they still\nexplain a system and reality that affect the lives of more people than live in the entire rich world.\n\n1. Interviews: WG01-FL, BJ07-PA, SH04-PA. See also Clark (2011, 17\xe2\x80\x9320, 75\xe2\x80\x9378).\n2. This chapter uses the term multinational rather than the common abbreviation MNC, as I believe\nthis to be more immediately intelligible and in line with common nontechnical language.\n378 | On Their Best Behavior?\n\n\x0cThird, China\xe2\x80\x99s increasing prominence on the world stage and its miraculous economic growth\nmake it an exceptionally important case, especially once we consider a conspicuous lack of\npolitical liberalization. The PRC is a crucial example for anyone interested in developing legal\nsystems because it has achieved almost three decades of economic growth at unprecedented\nrates. This has made China something of a model, with some arguing that a new Beijing\n3\n\nConsensus\n\n(Ramo 2004) provides developing countries with an attractive authoritarian\n4\n\nalternative to the liberal-democratic and free-market Washington Consensus. The PRC will likely\novertake the United States as the world\xe2\x80\x99s biggest economy in the next two decades (Kennedy\n2018), and with its central position in global supply chains, its legal system has major implications\nfor the world. China\xe2\x80\x99s prominence also means that it receives a great deal of international scrutiny.\nFinally, China\xe2\x80\x99s size and the unevenness of its growth and reform mean that it is not necessarily\na single case. Comparing Shanghai and rural Hunan, for example, is not unlike comparing a\ndeveloped country to a developing one. This analysis draws comparisons between Beijing\xe2\x80\x99s IP\ncourt and other administrative courts, developed coastal cities and more remote areas, domestic\ncompanies and multinationals, and civil and administrative litigation. Thus China is the perfect\ncase for investigating whether multinational firms have been helpful in integrating Western legal\npractices.\n\nOutline\nThe empirical investigation that makes up the remainder of this chapter takes the following\nformat. First, I consider my data sources. I go on to show that although administrative litigation\nis a viable mechanism for both individuals and firms to resolve problems with local governments,\nmultinationals rarely resort to suing the Chinese state. An example helps demonstrate that while\nforeign firms may have difficulty litigating against the Chinese government, on balance the\nprocess is no more problematic for them than most other classes of plaintiffs. I consider the\nfollowing reasons that multinationals tend not to litigate: (1) their perceptions of administrative\nlitigation in China are founded on a familiar criticism of Chinese rule of law rather than on\n\n3. The term Beijing Consensus refers to China\xe2\x80\x99s economic and political policies in the post-Mao era.\nThese are seen both as a likely cause of China\xe2\x80\x99s unprecedented economic success and as a possible\nalternative, especially for developing countries, to the Washington Consensus of market-friendly\neconomics and liberal politics promoted by the International Monetary Fund, World Bank, and the\nUnited States.\n4. For doubts about this, see Givens (2011) and Scott Kennedy (2010).\nOn Their Best Behavior? | 379\n\n\x0cempirical reality or experience, (2) they often have attractive extralegal alternatives, and (3)\ntheir activities are sometimes of dubious legality. Finally, I conclude that while the reluctance of\nmultinationals to engage the Chinese state in litigation is understandable, their unwillingness to\nmake use of administrative courts, preference for extralegal special treatment, and inclination to\nskirt inconvenient laws severely limit their potential contribution to rule of law in China.\n\nData Sources\nThe data for this chapter are drawn primarily from interviews and email interactions conducted\nby the author from 2010 to 2011. Most importantly, in the spring of 2011, I conducted twentynine semistructured interviews with lawyers and other business support staff at foreign law\nfirms that have a presence in China and with high-profile Chinese law and intellectual property\n5\n\nfirms. These international and elite domestic Chinese firms were most likely to have contact with\nmultinational companies. Twenty-three of these interviews were achieved by soliciting interviews\nat all the firms present in the prestigious buildings and districts in which such firms are clustered\nin Shanghai and Beijing. This was a form of convenience sampling (Salkind 2007, 186\xe2\x80\x9387), and I\nmake no assumptions about how representative the sample is of Chinese firms generally. However,\nit is likely more or less representative of elite and foreign firms. Additionally, I conducted six\ninterviews, remote interviews, or email interactions outside mainland China. These were with\nlawyers who had special insight into foreign involvement, or lack thereof, in Chinese\n6\n\nadministrative litigation. I also sent emails seeking information to at least one lawyer at each of\nfifty foreign law firms in Hong Kong that deal with PRC law. I received thirteen responses, none of\nwhich implied experience with administrative litigation.\nAs part of a larger project on administrative litigation, I also conducted semistructured interviews\n7\n\nwith 126 lawyers from randomly selected law firms from official registries in Beijing, Shanghai,\n8\n\nNingbo, Changsha, Guilin, and a prefecture in rural Hunan.\n\nFinally, these interviews were\n\n5. Intellectual property firms in China specialize in assisting clients with intellectual property issues\nsuch as patent registration and may also represent clients in IP-related litigation. They employ\nlawyers and nonlawyer patent agents, both of whom may represent their clients in IP litigation.\n6. Interviews: HK01-L, HK02-L, HK03-L WG01-L, WG02-L.\n7. Because these websites are updated fairly regularly, many of the lists I used may no longer be\navailable. However, a typical example may be found in Guilin Judicial Bureau (2011 ).\n8. At four of the sites, twenty firms were chosen at random from official registers of all local law firms\nin the area. In Beijing thirty firms were chosen, and in rural Hunan every firm was included in the\nsample because of the small number of law firms in the prefecture. The response rate was 68.5\n380 | On Their Best Behavior?\n\n\x0csupplemented by an additional nineteen interviews with former government officials, former\njudges, legal scholars, legal workers, and actual as well as potential plaintiffs. While these\ninterviews provided a wealth of knowledge about administrative litigation in China and an\nimportant point of comparison, the vast majority of Chinese law firms never interact with foreign\nparties, and my random sample of firms therefore yielded little direct information about even the\npossibility of foreign-involved administrative litigation.\nInterviews ranged in length from twenty minutes to four hours depending on the experience\nand availability of the informant. With the exception of some foreign lawyers, all interviews were\nconducted in Mandarin. To facilitate more honest conversation and to protect the anonymity of\ninformants, no audio recordings were made of any of these interviews.\nWhile most sections of this chapter rely primarily on data gathered through these interviews, I\nalso use official PRC data from national and provincial legal yearbooks to support the interviewees\xe2\x80\x99\nassertions that multinationals rarely sue the state. Official data published by the Chinese\ngovernment are justifiably treated with skepticism. Data on litigation is no exception. Empirical\nresearch has suggested that Chinese courts exaggerate the number of cases they hear to make\nthemselves look more productive and that this is primarily true of less busy courts in poorer areas\n(Clarke 2003b; He 2007, 357\xe2\x80\x9358). However, there is no reason to believe that the yearbook data\nhave been falsified in order to reinforce my finding that foreign firms engage in less administrative\nlitigation. In fact, the Chinese state would prefer to give the opposite impression. Since my data\ncome from national as well as provincial yearbooks from Guangdong and Hubei and cover a span\nof over twenty years, any bias would have to be both systematic and long lasting to seriously affect\n\npercent. To increase efficiency, if a sampled firm shared a building with other firms, additional\ninterviews were sought with up to three of those firms, chosen with a random number generator on\nmy smartphone if more than three were present. The inclusion of these firms had the additional\nadvantage of capturing at least one firm that was too new to be on the official register, though these\nregisters were never more than a year and a half old. I have conducted various statistical tests to\nconfirm that these additionally sampled firms are not statistically different than those drawn from\nmy original sample. Because the two variables most relevant to lawyers\xe2\x80\x99 experience with\nadministrative litigation, \xe2\x80\x9cnumber of administrative cases handled in the last year\xe2\x80\x9d and \xe2\x80\x9cnumber of\nadministrative cases handled in career,\xe2\x80\x9d are not normally distributed, I conducted a rank sum MannWhitney-Wilcoxon test (a significance test similar to a t-test, but for which the samples do not need\nto be normally distributed) to confirm that the original sample and additional sample were not\nstatistically different. Mindful of the large number of zeros contained in these variables, I also\nconducted two simple zero-inflated negative binomial regressions with these variables as the\ndependent variables and their presence in the original versus additional sample as the dependent\nvariable. Both methods confirm that my additionally sampled interviews are not significantly\ndifferent from my original sample (Gibbons 1992; McElduff et al. 2010).\nOn Their Best Behavior? | 381\n\n\x0cmy findings. Unless the PRC someday makes publicly available all past cases, they are the only\nrepresentative statistical data available on the subject. I therefore proceed with the understanding\nthat while they are less than perfect, there is no reason to believe that these data are biased in\nfavor of my conclusions.\nThe issue of how multinationals behave in China can be obscured by the fact that many of\nthem are not technically multinationals. In the early stages of China\xe2\x80\x99s reform era, many foreign\nfirms could only get access to China by setting up joint ventures with Chinese partners. By 1997,\nwholly foreign-owned enterprises (WFOEs) had become the investment format of choice, and\nsince then, more and more foreign investment has taken this form (Puck, Holtbr\xc3\xbcgge, and Mohr\n2008, 388\xe2\x80\x9389). New difficulties arise, however, from the variable interest entity (VIE; Schindelheim\n2012), or \xe2\x80\x9cSina structure,\xe2\x80\x9d that \xe2\x80\x9chas been used for years primarily to circumvent China\xe2\x80\x99s rules that\nban foreigners from investing in certain sectors such as internet and telecommunication\xe2\x80\x9d (Shaw,\nChow, and Wang 2011). Nevertheless, the multinationals in this study are broadly comparable to\nmultinationals in the broader literature for two reasons. First, most of these companies discussed\nhere are WFOEs that are fully controlled by their multinational parent company. Second, this study\nfocuses on the perspective of the foreign portion of joint entities and draws much of its data from\ninternational law firms; domestic companies and the Chinese side of joint ventures rarely consult\ninternational law firms on domestic issues.\n\nNonlitigiousness\nAside from cases in Beijing\xe2\x80\x99s IP tribunal, foreign firms generally do not sue the Chinese state.\nThis assertion is not controversial, and in international business and legal circles in China, it is\nthe received wisdom. As the China counsel of a large foreign multinational with a long history\nin China puts it, \xe2\x80\x9cAs a matter of principle, we would not think about resorting to administrative\n9\n\nlitigation.\xe2\x80\x9d This section examines both interviews and official data to provide the first empirical\nverification of this received wisdom.\nFirst and foremost, my interviews with foreign lawyers who have experience in China and with\nChinese lawyers who regularly represent foreign clients confirm that foreign companies are\nextremely unlikely to involve themselves in administrative cases in China. While there was some\nvariation in my informants\xe2\x80\x99 views on whether administrative litigation was ever advisable for\nmultinationals, they were essentially unanimous that it was extremely rare. Indeed, despite an\nextensive search for lawyers with experience representing multinationals in Chinese\n\n9. Interview: WG02-FL.\n382 | On Their Best Behavior?\n\n\x0cadministrative court, only two of my informants had direct experience with a non-IP\n10\n\nadministrative case involving a foreign company.\n\nIt is difficult to find statistics that would help establish the frequency of foreign involvement in\nadministrative litigation. But the available data confirm that multinationals engage in relatively\nlittle administrative litigation, using administrative courts less than their domestic peers and less\nthan civil courts. From 1987 to 1998, out of 474,708 administrative cases in the PRC, only 168 (0.035\n11\n\npercent) were foreign involved (Supreme People\xe2\x80\x99s Court Research Office 2000a). It is unlikely\nthat these low numbers are the result of downward manipulation, since Chinese courts prefer to\n12\n\nhighlight foreign use of the legal system rather than downplay it. These statistics cover a period\nbefore Beijing\xe2\x80\x99s IP tribunal was created, and it is therefore unsurprising that they contain only two\nforeign-involved IP cases. This further demonstrates how unique Beijing\xe2\x80\x99s IP tribunal and its large\nnumber of foreign-involved administrative cases truly are.\nWhile I am not aware of any national-level statistics after 1998, provincial statistics from\nGuangdong corroborate the same general trend. From 1998 to 2009, only 114 out of 56,535\n(0.20 percent) administrative cases in the province of Guangdong involved foreign parties. Yet\nGuangdong during this period is certainly a \xe2\x80\x9cmost likely\xe2\x80\x9d case. That is, considering the tremendous\npresence and history of foreign firms and capital in Guangdong, the province\xe2\x80\x99s high level of\ndevelopment, and Guangdong\xe2\x80\x99s relative economic and political liberalism (Economist 2011), it\n\n10. Interview: HK01-FL, HK02-FL.\n11. As is the case with many categories in Chinese yearbooks, exactly what is meant by foreign-involved\ncases is not defined but presumably follows the administrative litigation law by including \xe2\x80\x9cforeign\nnationals, stateless persons, and foreign organizations (\xe5\xa4\x96\xe5\x9b\xbd\xe4\xba\xba\xe3\x80\x81\xe6\x97\xa0\xe5\x9b\xbd\xe7\xb1\x8d\xe4\xba\xba\xe3\x80\x81\xe5\xa4\x96\xe5\x9b\xbd\xe7\xbb\x84\xe7\xbb\x87).\xe2\x80\x9d Some\nadditional clarification is provided by Article 15 of the interpretation of the Supreme People\xe2\x80\x99s Court,\nwhich states that \xe2\x80\x9cany party to joint operation enterprises, sino-foreign equity joint ventures, or\ncontractual joint ventures (\xe8\x81\x94\xe8\x90\xa5\xe4\xbc\x81\xe4\xb8\x9a\xe3\x80\x81\xe4\xb8\xad\xe5\xa4\x96\xe5\x90\x88\xe8\xb5\x84\xe6\x88\x96\xe8\x80\x85\xe5\x90\x88\xe4\xbd\x9c\xe4\xbc\x81\xe4\xb8\x9a\xe7\x9a\x84\xe8\x81\x94\xe8\x90\xa5\xe3\x80\x81\xe5\x90\x88\xe8\xb5\x84\xe3\x80\x81\xe5\x90\x88\xe4\xbd\x9c\xe5\x90\x84\xe6\x96\xb9) which deems\nthat its rights and interests are impaired by a specific administrative action may initiate an action in\nits own name\xe2\x80\x9d (Administrative Litigation Law 1989; Supreme People\xe2\x80\x99s Court Research Office 2000b).\n12. A briefing session by the Beijing First Intermediate People\xe2\x80\x99s Court on \xe2\x80\x9c10 Exemplary Foreign-Related\nIP Cases\xe2\x80\x9d that were decided between 2006 and 2010, two of which were administrative, clearly\ndemonstrate this fact: \xe2\x80\x9cA total of 2,691 foreign-related IP cases were accepted by the IP Tribunal of\nthe Court from 2006 to October 2010, accounting for 28.4 percent of all IP cases accepted by the\ntribunal, with the object in suit amounting to RMB330 million yuan [about $50 million in 2010].\xe2\x80\x9d\nAdditionally, cases decided \xe2\x80\x9cin favor or partially in favor of the foreign claims accounted for 55.2\npercent of all the foreign-related IP cases,\xe2\x80\x9d resulting in over 48 million RMB (about $7.2 million) being\nawarded to foreign parties. The fact that the report felt the need to highlight the level of foreign\ninvolvement speaks to the importance of foreign pressure in the creation of this tribunal and its high\nstandards (China Patent Agent 2010).\nOn Their Best Behavior? | 383\n\n\x0cis undoubtedly one of the areas in which we could expect to find more foreign-related\nadministrative litigation. The case of Guangdong demonstrates that even in China\xe2\x80\x99s most\ndeveloped coastal areas with the largest foreign presence, multinationals rarely involve\n13\n\nthemselves in administrative litigation. Yet both legal practitioners\n\nand international experts\n\n(World Bank 2006) acknowledge that rule of law is far better developed in these large cities.\n\n14\n\nLawyers see their local governments as less likely to let administrative litigation affect\n15\n\nrelationships with plaintiffs. This could be taken as evidence that multinationals are unwilling to\nuse even relatively well-developed courts to litigate against more professional local governments\neven though retaliation seems unlikely. However, in my interviews, it was more common to\nhear\xe2\x80\x94especially from Chinese lawyers\xe2\x80\x94that multinationals in Shanghai or Beijing rarely sued\nthese jurisdictions because they seldom had problems with their more sophisticated and ruleabiding local governments.\nWhen considering administrative litigation, and especially when evaluating statistics on foreign\ninvolvement, it is important to take third-party participation into account. Because administrative\nlitigation is specifically litigation against a part of the government, a private party, such as a\nmultinational, cannot be a defendant in an administrative lawsuit. Article 27 of the Administrative\nLitigation Law, however, states that \xe2\x80\x9cany other citizen, legal person or any other organization who\nor which has interests in a specific administrative act against which an action is initiated may apply\nto participate in the action as a third party\xe2\x80\x9d (Administrative Litigation Law 1989). In general, third\nparties to administrative cases are on the side of the Chinese state. They are often companies that\nthe government has treated favorably in some way, such as companies that have won a contract or,\naccording to the perspective of plaintiffs, have been allowed to violate regulations. For example, a\nmobile phone company in Lanzhou sued the local communications department for not enforcing\nregulations that limited the prizes such companies could offer in promotional contests; the third\nparty in this case was a rival mobile phone company that had offered a car as a grand prize.\n\n16\n\nThird-party involvement may actually account for the majority of cases of foreign involvement\nin administrative litigation in China; one Beijing patent lawyer reported that representing foreign\ncompanies as third parties in administrative litigation made up a majority of the cases he took in\n17\n\n2009.\n\n13. Interview: SH05-L.\n14. Interview: SH05-L. When I refer to more developed coastal cities with better rule of law, I generally\nmean Shenzhen, Guangzhou, Shanghai, and Beijing, but a number of second-tier cities, such as\nQingdao, Hangzhou, Suzhou, and Ningbo, could also be included.\n15. Interview: SH03-L.\n16. Interview: LZ03-L.\n17. Interview: BJ07-PA.\n384 | On Their Best Behavior?\n\n\x0cObviously, standing on the side of the government in administrative litigation is very different than\nlitigating against it. In contrast to the difficulties of representing a plaintiff in an administrative\n18\n\ncase, a Beijing patent lawyer described such work as \xe2\x80\x9cmuch more relaxed.\xe2\x80\x9d\n\nSimilarly, a lawyer\n\nrepresenting a third party said, \xe2\x80\x9cFrom the government\xe2\x80\x99s perspective, this was a tough case, but not\nfrom my perspective.\xe2\x80\x9d\n\n19\n\nForeign firms in China are generally reluctant to litigate even in civil cases. Compared to the 28.4\npercent of IP cases in Beijing\xe2\x80\x99s First Intermediate Court that involved foreign parties (China Patent\nAgent 2010), the percentages of all types of foreign-involved cases in Guangdong is miniscule\n(Guangdong High Court Various Years). However, foreign parties are more likely to engage in civil\nlitigation than administrative litigation, as is shown by the following statistical tests using data\nfrom Guangdong. I use an independent group t-test, a simple statistical test used to determine\nwhether there is a significant difference between the means of two groups. This t-test compares\nthe mean percentage of foreign-involved administrative cases and the mean percentage of\nforeign-involved tort and contract cases. Although the percentage of overall cases is tiny, the\nresults in table 1 show that foreign parties were involved in an average of .4 percent of contract\ncases versus .17 percent of administrative cases and that this difference was statistically significant\nat the .05 level.\n# of\nObservations\n\nMean\n\nPercentage of Tort and Contract Cases\nInvolving Foreign Parties\n\n18\n\n0.40% 0.06\n\n0.24\n\nPercentage of Administrative Cases\nInvolving Foreign Parties\n\n11\n\n0.17%\n\n0.13\n\nDifference\n\nStandard Error\n\n0.04\n\nStandard\nDeviation\n\n0.23% 0.08\nAssuming Equal\nVariance\n\nAssuming\nUnequal Variance\n\nP Value\n\n0.01\n\n0.00\n\nDegrees of Freedom\n\n26\n\n25.99*\n\n*Satterthwaite\'s degrees of freedom test\n\nTable 1: Foreign Involvement in Administrative vs. Tort and Contract Cases\nIndependent Group T-Test: % of Cases in Guangdong Involving Foreign Parties 2000-2009\n\nTable 2 is similar to table 1 except that it compares administrative cases exclusively to contract\n\n18. Interview: BJ07-PA.\n19. Interview: NB05S.\nOn Their Best Behavior? | 385\n\n\x0ccases. Again, we see that although foreign parties make up only a tiny percentage of both types of\nlitigation in China, foreign parties still make up a larger share of civil litigation, and the difference\nis significant at the .05 level. Specifically, foreign companies litigated an average of .32 percent of\ncontract cases versus .17 percent of administrative cases.\n# of\nObservations\n\nMean\n\nPercentage of Contract Cases Litigated by\nForeign Firms\n\n10\n\n0.32% 0.06\n\n0.18\n\nPercentage of Administrative Cases\nLitigated by Foreign Firms\n\n10\n\n0.17%\n\n0.13\n\nDifference\n\nStandard Error\n\n0.04\n\nStandard\nDeviation\n\n0.25% 0.07\nAssuming Equal\nVariance\n\nAssuming Unequal\nVariance\n\nP Value\n\n0.02\n\n0.02\n\nDegrees of Freedom\n\n18\n\n16.13*\n\n*Satterthwaite\'s degrees of freedom test\n\nTable 2: Foreign Involvement in Administrative vs. Contract Cases\nIndependent Group T-Test: % of Cases in Guangdong Involving Foreign Parties 2000-2009\n\nBoth foreign and domestic firms, especially larger domestic firms, tend to prefer to rely on\nconnections with local governments and officials to resolve problems (Oi and Walder 1999; D.\nWank 2002; D. L. Wank 1995). But several pieces of evidence suggest that domestic firms are not\nnearly as reluctant as their foreign counterparts to turn to administrative litigation. First, a recent\nanalysis of a 2002 survey conducted by several state organs in combination with the Chinese\nAcademy of Social Sciences demonstrated that 5 percent of entrepreneurs would regularly rely on\nadministrative courts to resolve disputes (Zhang and Li 2013, 6\xe2\x80\x939). While this number is not high\nin absolute terms, it shows that some private Chinese firms see administrative courts as a viable\npossibility, whereas their foreign counterparts tend not to entertain the option.\nSecond, data from Hebei Province demonstrates that firms make up a large percentage of the\ntotal number of administrative cases. As figure 1 shows, litigation brought by companies (i.e.,\n\n386 | On Their Best Behavior?\n\n\x0c20\n\nlegal persons ) as opposed to individuals makes up a reasonably large and apparently increasing\npercentage of administrative cases.\n\n21\n\nFigure 1: Administrative Cases in Hebei Litigated by Legal Persons About Here\n\nFinally, and most importantly, while my interviews with foreign lawyers who advised\nmultinationals in China revealed a universally negative perception of administrative litigation,\nmy much larger sample of Chinese lawyers who advised domestic firms and individuals had a\nfar more varied outlook. Indeed, 72 percent of the lawyers in my random sample expressed a\nwillingness to represent a plaintiff in administrative litigation. Many Chinese lawyers told me\nthat administrative litigation was a perfectly viable option for companies, and some had direct\n22\n\nexperience with administrative cases brought by Chinese companies.\n\nSimilar to Hendley\xe2\x80\x99s (2013)\n\nfinding that despite a negative opinion of them, Russians frequently turn to their courts to settle\n\n20. While there are types of legal persons other than companies that may be included in these data, this\nis not a major concern. Nongovernmental organizations (NGOs) and other noncommercial\norganizations famously have trouble getting legal status in China. Even when they do, they often\nhave difficulty having their standing recognized in administrative courts (Peerenboom 2002, 420).\n21. Other sources have corroborated the data\xe2\x80\x99s suggestion that companies make up a large share of\nplaintiffs in administrative litigation. See Peerenboom (2002, 478).\n22. Interview: BJ26S, SH19S, SH15S, SH11N, SH07S, SH01S, NB18S, NB01S.\nOn Their Best Behavior? | 387\n\n\x0cdisputes, domestic Chinese lawyers and plaintiffs are aware of the shortcomings of their legal\nsystem but still make use of it. Foreign firms, on the other hand, may be scared away by a belief\nthat Chinese courts are completely corrupt and ineffective, a viewpoint similar to the one Hendley\ncast so much doubt on in the post-Soviet context.\nThe findings from my interviews and official data examined in this section serve to corroborate\nreceived wisdom, and the overall picture leaves little doubt that multinationals in China rarely\nengage in administrative litigation, whether in absolute terms or in comparison to civil litigation\nor domestic companies. This calls into question the idea of legal convergence by showing that\nmultinationals neither seem to require effective judicial remedies against the state nor appear to\nfacilitate the improvement of such remedies.\n\nA Rare Example\nTo better understand why foreign companies and the Chinese and foreign law firms that represent\nthem are reluctant to recommend litigation against the state, it is instructive to examine more\nclosely one of the few examples of a non-IP foreign-involved administrative case.\nIn the early 2000s, a foreign company\xe2\x80\x99s joint venture with a Chinese firm had run into trouble with\nthe customs department in a large Chinese port.\n\n23\n\nA few million US dollars\xe2\x80\x99 worth of product that\n\nthe company had imported had gone missing in the port and was then sold on the local market.\n\n24\n\nThe joint venture requested an administrative review of the local customs agents\xe2\x80\x99 action, which\nwas conducted by the national customs agency because the port city\xe2\x80\x99s customs was directly under\ntheir supervision.\n\n25\n\nThe national agency upheld the local customs department\xe2\x80\x99s decision, so the\n\njoint venture contacted the large multinational law firm that was its Hong Kong\xe2\x80\x93based counsel.\nThe firm recommended three potential Chinese law firms in the port city to represent them in\nthe matter, and the joint venture chose the largest firm. Assisted by its Hong Kong counsel and\nrepresented in China by the local firm, the joint venture took the national customs department to\nadministrative court.\nDespite having devoted significant funds to legal fees, especially for the Hong Kong firm, both\n\n23. My data are drawn from two separate interviews with lawyers who worked on the case. Interviews:\nHK01-FL, HK02-L.\n24. The name of the firm, the nature of the product, the name of the city, and the law firms are all\nintentionally omitted to protect the anonymity of my informants.\n25. For more on the administrative review system, see Peerenboom (2002, 417\xe2\x80\x9319).\n388 | On Their Best Behavior?\n\n\x0cthe first instance and appellate courts ruled against the joint venture. As is relatively common in\nChinese administrative cases, the judge found an informal opportunity to explain that the political\nsituation would not allow him to rule for the plaintiff: \xe2\x80\x9cWe cannot let you win this case, because\nthis is linked to . . . [a large smuggling] case.\xe2\x80\x9d\n\n26\n\nThe officials in question in the administrative\n\nsuit had turned out to also have been defendants in a highly publicized criminal smuggling case,\nand apparently this made the joint venture\xe2\x80\x99s lawsuit too sensitive for the administrative courts\nto handle. Additionally, because the case had already gone through administrative review and\nthe national customs agency had made some modifications to the initial decision, ruling for the\nplaintiff would have meant ruling against a national-level department (Administrative Litigation\nLaw 1989 Article 25), something administrative courts are very reluctant to do.\nNevertheless, a compromise was reached. The joint venture agreed not to pursue the case any\nfurther, and the customs department agreed not to take any action against the company in an\napparently unrelated issue that was pending against the joint venture. This case displays many\nof the problems that are common in Chinese administrative litigation, especially the difficulty of\nsuing certain parts of the state and a preference for informal resolutions. Yet it seems unlikely that\na domestic firm would have fared any better under the same circumstances, so it also shows that\nthe problems faced by multinationals in China are not necessarily any different than those of any\nother administrative plaintiff.\n\nHelping or Hurting? Foreign Involvement\nDespite numerous flaws in China\xe2\x80\x99s administrative courts, it is not immediately apparent why\nmultinationals engage in less administrative than civil litigation or why they engage in less\nadministrative litigation than domestic companies. This section will show that multinationals, if\nanything, are in a stronger position in regard to administrative litigation than are their domestic\ncounterparts.\nFor the most part, both foreign and domestic plaintiffs face the same problems that plague\nadministrative litigation in China (Givens 2013; He 2010; Kinkel and Hurst 2011; O\xe2\x80\x99Brien and Li\n2004). However, there may be areas in which foreign firms have advantages or disadvantages.\nThe involvement of a foreigner in any litigation in China tends to make a case more sensitive. In\none instance, an otherwise banal case was rejected simply because the involvement of a foreigner\nmade judges fear it was too sensitive to handle.\n\n27\n\nUnlike judges in more independent judicial\n\n26. Interview: HK02-L.\n27. Interview: SH15S.\nOn Their Best Behavior? | 389\n\n\x0csystems, Chinese judges may be penalized for what their superiors consider an \xe2\x80\x9cincorrect ruling,\xe2\x80\x9d\nand the more sensitive or important the case, the more damaging the potential consequences for\na judge (He 2009, 13\xe2\x80\x9314; Lam 2008; Minzner 2009a; Stern 2013, 136). Additionally, multinationals\nare more likely to have disputes with higher-level administrative agencies than their domestic\ncounterparts, and suing a higher level of government can increase the level of sensitivity, and\ntherefore the difficulty, of a case.\n\n28\n\nOn the other hand, multinationals seem to have some advantages over domestic plaintiffs. In\nterms of cases being accepted, a regulation issued by the Supreme People\xe2\x80\x99s Court in 2002 allows\n\xe2\x80\x9cforeign investors, to institute litigation in the courts to request judicial review of any \xe2\x80\x98concrete\xe2\x80\x99\nact of a government authority in connection with a WTO-related [World Trade Organization]\nmatter\xe2\x80\x9d (Halverson 2004, 360\xe2\x80\x9361). This should mean that multinationals in China have more of a\nbasis from which to challenge administrative decisions. Foreign-involved cases also start one level\nhigher up the judicial system than totally domestic litigation (Woo 2012, 54). For example, firstinstance cases that would normally be heard in a lower-level court will start in an intermediate\ncourt. Because higher-level judges are usually better qualified and less prone to corruption and\nlocal protectionism, this can help foreign companies (Roos 2010, 35\xe2\x80\x9336). Some informants even\nsuggested that courts would be more conscientious in cases involving foreign parties, perhaps\n29\n\nbeing extra polite and patient.\n\nAnother suggested that they might receive favorable treatment in\n30\n\ncourts outside Beijing and Shanghai where foreign presence is rarer.\n\nFurther assisting foreign parties in administrative litigation is the possibility of diplomatic\ninfluence. Embassies, chambers of commerce, and other international and home-country\ninstitutions can sometimes be mobilized to put pressure on parts of the Chinese state, especially\n31\n\nin bigger cases. While this option can be utilized in conjunction with administrative litigation, we\nwill see that it is more often used as part of an alternative strategy of direct negotiation.\n\nAlternatives to Litigation for Multinationals\nMultinationals and their legal representation tend to lack experience with and have\nmisconceptions about administrative litigation, but they do have resources that can be mobilized\nto solve their disputes with the state by extralegal means. In most cases, foreign firms prefer to\n\n28. Interview: BJ09-L.\n29. Interview BJ14-L, SH03-L.\n30. Interview: SH05-L.\n31. Interview: SH03-L.\n390 | On Their Best Behavior?\n\n\x0crely on their connections and/or to negotiate directly with the state because they expect, and\noften receive, special treatment that is at best informal and extralegal and at worst a violation of\nChinese law. As my focus here is specifically administrative litigation, this section examines these\nextralegal alternatives briefly, but the topic is important and should lead to future research.\nOne reason multinationals do not sue is that they have recourse to other means that would not\nbe available to ordinary small or medium domestic Chinese enterprises\xe2\x80\x94or in some cases, even\nto large Chinese companies. Foreign companies often have extra influence with local government\nofficials seeking promotions because such officials want the multinationals\xe2\x80\x99 investment and the\nprestige that accompanies a foreign presence (Minzner 2009b, 66). A Shanghai lawyer describes\nhow she is able to negotiate with government departments on behalf of her clients. Generally,\nlitigation is never mentioned. Instead, she suggests that \xe2\x80\x9cthis company pays so much tax in your\ndistrict, if you don\xe2\x80\x99t fix this, we will move.\xe2\x80\x9d This has worked because her clients tend to be large\n32\n\ncompanies, and it works even better if they are foreign ones.\n\nAnother recourse that is available to foreign parties is the use of diplomatic pressure to resolve\na dispute with the Chinese government. While mobilizing the resources of a smaller, \xe2\x80\x9clessimportant\xe2\x80\x9d country may not have much of an impact, pressure through channels of large and\n33\n\npowerful actors, such as the US or EU, can be very effective.\n\nLarge multinationals may also\n\nuse their connections with high-level officials in China and at home to accumulate personal and\n34\n\n35\n\ninstitutional support.\n\nFinally, multinational institutions like the WTO may be of assistance.\n\nAcademics, lawyers,\n\nand businesspeople sometimes argue that this strategy of relying on\n\n36\n\nconnections, networks, and relationships is an adaptation to a local culture of Guanxi, preferring\n37\n\ninformal relationships to a reliance on rules and formal institutions.\n\nWhatever the truth of this,\n\nit is exactly the kind of behavior that theories of legal convergence would expect foreign lawyers\nand businesspeople to help change rather than adopt.\nAt least one informant suggested that litigation and negotiation were not necessarily mutually\nexclusive alternatives: \xe2\x80\x9cAdministrative litigation is a great way to get business done even in China\nand even from a pragmatic perspective. However, it is worth noting that you do not need to win\na case to achieve your purpose. Filing a case itself may increase your negotiating power, and\nthen you can do the government a favor by withdrawing the case if they finally agree with your\n\n32. Interview: SH21S.\n33. Interview: BJ15-FL.\n34. Interviews: WG02-FL, SH03-L.\n35. Interview: BJ15-FL.\n36. Interview: SH14-L.\n37. For a treatment of gaunxi, see Gold and Guthrie (2002) and Yang (1994, 2002).\nOn Their Best Behavior? | 391\n\n\x0c38\n\nposition.\xe2\x80\x9d\n\nThis point of view stands in dramatic opposition to those lawyers who would not\n\nconsider even filing a case and were convinced that doing so would hurt their relationship with\n39\n\nthe government.\n\nIt also reminds us that litigation should be a last resort but is still useful and\n\nimportant as such.\nAnother alternative to litigation is to find a \xe2\x80\x9cbusiness way\xe2\x80\x9d to work around problems with the\nstate\xe2\x80\x94for example, by cooperating with a Chinese company and using its license to enter into\nactivities or areas for which official approval was not granted.\n\n40\n\nThese types of solutions are\n\noften of dubious legality. The best-known examples are the VIEs that are used by 64 percent of\nChinese companies listed on the New York Stock Exchange and 92 percent listed on NASDAQ\n41\n\n(Liu 2018). \xe2\x80\x9cAlthough the Chinese government has not explicitly disapproved the VIE structure,\n\nit is clear that VIEs were established to subvert the PRC prohibitions or restrictions on foreign\ndirect investment\xe2\x80\x9d (Schindelheim 2012, 201). If problems with VIEs arise, therefore, litigation is\nunlikely to be a good option \xe2\x80\x9cbecause those contracts [that make up a VIE] carry little legal\nweight, if any, in China\xe2\x80\x9d (Shaw, Chow, and Wang 2011). VIEs are, therefore, a clear example of\nmultinationals preferring to take advantage of loopholes in Chinese law rather than contributing\nto its improvement.\n\nConclusion\nThis chapter does not mean to suggest that representatives of multinationals\xe2\x80\x94be they lawyers,\nbusinesspeople, or others\xe2\x80\x94are negligent or unethical when they decline to sue the Chinese state.\nThey are following the common wisdom that is shared by their colleagues and taking the action\nthey think is in the best interest of their clients or shareholders. Nor would it be fair to conclude\nthat foreign participation in China\xe2\x80\x99s legal system and markets has resulted in no progress toward\nlegal convergence or the development of rule of law in China. If the Chinese state devoted more\nresources toward improving its courts and allowed them greater independence, multinationals\nwould almost certainly be more willing to use them. At the same time, however, it is clear that\n\n38. Email interaction: SZ01-L.\n39. Interview: WG02-FL.\n40. Interview: BJ15-FL.\n41. A recent announcement by the Ministry of Commerce was \xe2\x80\x9cthe first time that the VIE structure has\nbeen expressly mentioned by a PRC authority.\xe2\x80\x9d While the announcement forbids the use of a VIE\nstructure in this instance, it \xe2\x80\x9cdoes not expressly say the use of such structure is illegal\xe2\x80\x9d (Chan, Ip,\nand Yue 2012).\n392 | On Their Best Behavior?\n\n\x0cforeign firms and governments and multilateral institutions have not put significant pressure on\nreforming China\xe2\x80\x99s administrative legal system.\nIn opposition to theories of legal convergence, multinationals are not having the positive impact\non China\xe2\x80\x99s legal system that they could because they prefer extralegal solutions that they regard\nas less risky. Multinationals cannot contribute to the development of best-practice institutions if\nthey do not follow best practices. The PRC has made this difficult by erecting legal barriers against\nthe participation of foreign enterprises in many areas and then allowing extralegal methods of\nsubverting them. Multinationals and the law firms that advise and represent them are profitdriven entities, and there is no reason they should act as \xe2\x80\x9cmoral entrepreneurs\xe2\x80\x9d if the more\nprofitable route is to take advantage of the system.\nThe PRC has been able to build and maintain its legitimacy through investment that keeps its\neconomy growing and increases its prominence on the world stage because multinationals are\nwilling to invest without strong legal guarantees and may opt for extralegal solutions. Yet even a\nfew noteworthy administrative cases could promote change.\n\nAppendix: Interviews\nEach of the 178 interviews I conducted for my larger research project on administrative litigation\nis represented by a code that identifies and provides some basic information about each interview.\nThe first two letters of each interview code indicate the field site, with \xe2\x80\x9cWG\xe2\x80\x9d referencing those\ninterviews that were conducted outside of China. The number indicates the order in which\nthe interviews were conducted. Each field site, randomly sampled, and nonprobability sampled\ninterviews are all numbered separately. For the randomly sampled interviews, the letter at the\nend of the code indicates that the informant\xe2\x80\x99s firm either was selected in my original sample (S)\nor was included through my additional sampling technique (N). For my nonprobability sampled\ninterviews, the letters after the dash indicate the position(s) of the informant: \xe2\x80\x9cPL\xe2\x80\x9d for plaintiff,\n\xe2\x80\x9cFL\xe2\x80\x9d for foreign lawyer, and so on. The lists below provide basic information on each interview and\nshould clarify the codes for each field site and position. The exact date of interviews is suppressed\nin order to better protect the anonymity of my informants.\n\nOn Their Best Behavior? | 393\n\n\x0cInterview Code Location\n\nTime of Interview Description1\n\nAL01-L\n\nWithheld\n\nAugust, 2010\n\nProdigious administrative litigator\n\nBJ01-P\n\nBeijing\n\nApril, 2010\n\nProfessor of law\n\nBJ02-J\n\nBeijing\n\nNovember, 2010\n\nRetired judge\n\nBJ03-LW\n\nBeijing\n\nNovember, 2010\n\nLegal worker, law student\n\nBJ04-LW\n\nBeijing\n\nNovember, 2010\n\nLegal worker\n\nBJ05-LW\n\nBeijing\n\nNovember, 2010\n\nLegal worker, law professor\n\nBJ06-L\n\nBeijing\n\nMarch, 2011\n\nLawyer at a specialized IP firm\n\nBJ07-PA\n\nBeijing\n\nMarch, 2011\n\nPatent agent at patent agency\n\nBJ08-L\n\nBeijing\n\nMarch, 2011\n\nLawyer and partner\n\nBJ09-L\n\nBeijing\n\nMarch, 2011\n\nOf counsel lawyer\n\nBJ10-PA\n\nBeijing\n\nMarch, 2011\n\nPatent agent\n\nBJ11-FL\n\nBeijing\n\nMarch, 2011\n\nForeign lawyer\n\nBJ12-L\n\nBeijing\n\nMarch, 2011\n\nLawyer\n\nBJ13-L\n\nBeijing\n\nMarch, 2011\n\nChinese lawyer at a foreign firm\n\nBJ14-L\n\nBeijing\n\nMarch, 2011\n\nLawyer at IP firm\n\nBJ15-FL\n\nBeijing\n\nMarch, 2011\n\nForeign lawyer at Chinese firm*\n\nCS01-PL\n\nChangsha, Hunan\n\nNovember, 2010\n\nPotential administrative plaintiff\n\nCS02-PL\n\nChangsha, Hunan\n\nDecember, 2010\n\nPotential administrative plaintiff\n\nLZ01-L\n\nLanzhou, Gansu\n\nMay, 2010\n\nLawyer\n\nLZ01-L\n\nLanzhou, Gansu\n\nMay, 2010\n\nLawyer\n\nLZ03-L/J\n\nLanzhou, Gansu\n\nMay, 2010\n\nLawyer, former judge\n\nLZ04-L\n\nLanzhou, Gansu\n\nMay, 2010\n\nLawyer\n\nQD01-L/O\n\nQingdao, Shandong June, 2010\n\nLawyer, former official\n\nQD02-L\n\nQingdao, Shandong June, 2010\n\nPartner lawyer\n\nQD03-L\n\nQingdao, Shandong June, 2010\n\nLawyer\n\nQD04-L\n\nQingdao, Shandong June, 2010\n\nPartner lawyer, founder\n\nTJ01-P/L\n\nTianjin\n\nJanuary, 2010\n\nLaw professor, lawyer\n\nTJ02-L\n\nTianjin\n\nJanuary, 2010\n\nLawyer\n\nTJ03-L\n\nTianjin\n\nJanuary, 2010\n\nPartner, law professor\n\nTJ04-P/J\n\nTianjin\n\nJanuary, 2010\n\nLaw professor, former judge\n\nSH01-L\n\nShanghai\n\nMay, 2010\n\nLawyer\n\n394 | On Their Best Behavior?\n\n\x0cInterview Code Location\n\nTime of Interview Description1\n\nSH02-M\n\nShanghai\n\nMay, 2010\n\nMarketing executive foreign law firm\n\nSH03-L\n\nShanghai\n\nMay, 2010\n\nChinese lawyer at Hong Kong firm\n\nSH04-PA\n\nShanghai\n\nMay, 2010\n\nPatent agent at a Hong Kong patent agency\n\nSH05-L\n\nShanghai\n\nMay, 2010\n\nLawyer at a foreign firm\n\nSH06-L\n\nShanghai\n\nMay, 2010\n\nForeign lawyer at a foreign firm\n\nTable 3: Nonprobability Sampled Interviews\n1 Unless otherwise specified firms and lawyers are domestic Chinese.\n* These interviews were either partially pr completely conducted through e-mail or other remote communication.\n\nOn Their Best Behavior? | 395\n\n\x0cInterview\nCode\n\nLocation\n\nTime of\nInterview\n\nHead or Assistant\nHead of Firm\n\nPartner\n\nOriginal or\nAdditional Sample\n\nBJ01N\n\nBeijing\n\nJuly, 2010\n\nNo\n\nYes\n\nOriginal\n\nBJ02S\n\nBeijing\n\nJuly, 2010\n\nNo\n\nNo\n\nAdditional\n\nBJ03N\n\nBeijing\n\nJuly, 2010\n\nYes\n\nYes\n\nOriginal\n\nBJ04S\n\nBeijing\n\nJuly, 2010\n\nNo\n\nNo\n\nOriginal\n\nBJ05S\n\nBeijing\n\nJuly, 2010\n\nNo\n\nYes\n\nAdditional\n\nBJ06N\n\nBeijing\n\nJuly, 2010\n\nYes\n\nYes\n\nOriginal\n\nBJ07S\n\nBeijing\n\nJuly, 2010\n\nNo\n\nNo\n\nOriginal\n\nBJ08S\n\nBeijing\n\nJuly, 2010\n\nYes\n\nYes\n\nAdditional\n\nBJ09N\n\nBeijing\n\nJuly, 2010\n\nNo\n\nNo\n\nAdditional\n\nBJ10N\n\nBeijing\n\nJuly, 2010\n\nNo\n\nNo\n\nAdditional\n\nBJ11N\n\nBeijing\n\nJuly, 2010\n\nNo\n\nNo\n\nOriginal\n\nBJ12S\n\nBeijing\n\nJuly, 2010\n\nNo\n\nNo\n\nAdditional\n\nBJ13N\n\nBeijing\n\nJuly, 2010\n\nNo\n\nNo\n\nAdditional\n\nBJ14N\n\nBeijing\n\nJuly, 2010\n\nNo\n\nNo\n\nAdditional\n\nBJ15N\n\nBeijing\n\nJuly, 2010\n\nNo\n\nNo\n\nAdditional\n\nBJ16N\n\nBeijing\n\nJuly, 2010\n\nNo\n\nNo\n\nAdditional\n\nBJ17N\n\nBeijing\n\nJuly, 2010\n\nNo\n\nNo\n\nAdditional\n\nBJ18N\n\nBeijing\n\nJuly, 2010\n\nNo\n\nNo\n\nAdditional\n\nBJ19S\n\nBeijing\n\nJuly, 2010\n\nNo\n\nNo\n\nOriginal\n\nBJ20N\n\nBeijing\n\nJuly, 2010\n\nYes\n\nYes\n\nAdditional\n\nBJ21S\n\nBeijing\n\nJuly, 2010\n\nYes\n\nYes\n\nOriginal\n\nBJ22S\n\nBeijing\n\nOctober/\nNovember, 2010\n\nNo\n\nNo\n\nOriginal\n\nBJ23S\n\nBeijing\n\nOctober/\nNovember, 2010\n\nNo\n\nNo\n\nOriginal\n\nBJ24N\n\nBeijing\n\nOctober/\nNovember, 2010\n\nNo\n\nNo\n\nAdditional\n\nBJ25N\n\nBeijing\n\nOctober/\nNovember, 2010\n\nYes\n\nYes\n\nAdditional\n\nBJ26S\n\nBeijing\n\nOctober/\nNovember, 2010\n\nYes\n\nYes\n\nOriginal\n\nBJ27S\n\nBeijing\n\nOctober/\nNovember, 2010\n\nNo\n\nNo\n\nOriginal\n\n396 | On Their Best Behavior?\n\n\x0cInterview\nCode\n\nLocation\n\nTime of\nInterview\n\nHead or Assistant\nHead of Firm\n\nPartner\n\nOriginal or\nAdditional Sample\n\nBJ28S\n\nBeijing\n\nOctober/\nNovember, 2010\n\nYes\n\nYes\n\nOriginal\n\nBJ29S\n\nBeijing\n\nOctober/\nNovember, 2010\n\nNo\n\nNo\n\nOriginal\n\nBJ30S\n\nBeijing\n\nOctober/\nNovember, 2010\n\nYes\n\nYes\n\nOriginal\n\nBJ31N\n\nBeijing\n\nOctober/\nNovember, 2010\n\nYes\n\nYes\n\nAdditional\n\nNB01S\n\nNingbo,\nZhejiang\n\nAugust, 2010\n\nNo\n\nNo\n\nOriginal\n\nNB02S\n\nNingbo,\nZhejiang\n\nAugust, 2010\n\nNo\n\nNo\n\nOriginal\n\nNB03N\n\nNingbo,\nZhejiang\n\nAugust, 2010\n\nNo\n\nNo\n\nAdditional\n\nNB04S\n\nNingbo,\nZhejiang\n\nAugust, 2010\n\nYes\n\nYes\n\nOriginal\n\nNB05S\n\nNingbo,\nZhejiang\n\nAugust, 2010\n\nNo\n\nNo\n\nOriginal\n\nNB06S\n\nNingbo,\nZhejiang\n\nAugust, 2010\n\nNo\n\nNo\n\nOriginal\n\nNB07S\n\nNingbo,\nZhejiang\n\nAugust, 2010\n\nYes\n\nYes\n\nOriginal\n\nNB08S\n\nNingbo,\nZhejiang\n\nAugust, 2010\n\nNo\n\nNo\n\nOriginal\n\nNB09S\n\nNingbo,\nZhejiang\n\nAugust, 2010\n\nNo\n\nNo\n\nOriginal\n\nNB10N\n\nNingbo,\nZhejiang\n\nAugust, 2010\n\nNo\n\nNo\n\nAdditional\n\nNB11S\n\nNingbo,\nZhejiang\n\nAugust, 2010\n\nNo\n\nNo\n\nOriginal\n\nNB12N\n\nNingbo,\nZhejiang\n\nAugust, 2010\n\nNo\n\nYes\n\nAdditional\n\nNB13S\n\nNingbo,\nZhejiang\n\nAugust, 2010\n\nYes\n\nYes\n\nOriginal\n\nNB14S\n\nNingbo,\nZhejiang\n\nAugust, 2010\n\nNo\n\nNo\n\nOriginal\n\nNB15N\n\nNingbo,\nZhejiang\n\nAugust, 2010\n\nNo\n\nNo\n\nAdditional\n\nNB16S\n\nNingbo,\nZhejiang\n\nAugust, 2010\n\nNo\n\nNo\n\nOriginal\n\nOn Their Best Behavior? | 397\n\n\x0cInterview\nCode\n\nLocation\n\nTime of\nInterview\n\nHead or Assistant\nHead of Firm\n\nPartner\n\nOriginal or\nAdditional Sample\n\nNB17S\n\nNingbo,\nZhejiang\n\nAugust, 2010\n\nNo\n\nNo\n\nOriginal\n\nNB18S\n\nNingbo,\nZhejiang\n\nAugust, 2010\n\nNo\n\nNo\n\nOriginal\n\nNB19S\n\nNingbo,\nZhejiang\n\nAugust, 2010\n\nNo\n\nYes\n\nOriginal\n\nNB20S\n\nNingbo,\nZhejiang\n\nOctober, 2010\n\nYes\n\nYes\n\nOriginal\n\nNB21S\n\nNingbo,\nZhejiang\n\nOctober, 2010\n\nYes\n\nYes\n\nOriginal\n\nNB22S\n\nNingbo,\nZhejiang\n\nOctober, 2010\n\nYes\n\nYes\n\nOriginal\n\nSH01S\n\nShanghai\n\nOctober, 2010\n\nNo\n\nNo\n\nOriginal\n\nSH02N\n\nShanghai\n\nOctober, 2010\n\nNo\n\nYes\n\nAdditional\n\nSH03S\n\nShanghai\n\nOctober, 2010\n\nYes\n\nYes\n\nOriginal\n\nSH04S\n\nShanghai\n\nOctober, 2010\n\nYes\n\nYes\n\nOriginal\n\nSH05S\n\nShanghai\n\nOctober, 2010\n\nNo\n\nNo\n\nOriginal\n\nSH06S\n\nShanghai\n\nOctober, 2010\n\nNo\n\nYes\n\nOriginal\n\nSH07S\n\nShanghai\n\nOctober, 2010\n\nNo\n\nNo\n\nOriginal\n\nSH08S\n\nShanghai\n\nOctober, 2010\n\nNo\n\nNo\n\nOriginal\n\nSH09S\n\nShanghai\n\nOctober, 2010\n\nNo\n\nNo\n\nOriginal\n\nSH10N\n\nShanghai\n\nOctober, 2010\n\nNo\n\nNo\n\nAdditional\n\nSH11N\n\nShanghai\n\nOctober, 2010\n\nNo\n\nNo\n\nAdditional\n\nSH12N\n\nShanghai\n\nOctober, 2010\n\nNo\n\nYes\n\nOriginal\n\nSH13N\n\nShanghai\n\nOctober, 2010\n\nYes\n\nYes\n\nAdditional\n\nSH14S\n\nShanghai\n\nOctober, 2010\n\nNo\n\nYes\n\nOriginal\n\nSH15S\n\nShanghai\n\nOctober, 2010\n\nNo\n\nYes\n\nOriginal\n\nSH16S\n\nShanghai\n\nOctober, 2010\n\nNo\n\nNo\n\nOriginal\n\nSH17S\n\nShanghai\n\nOctober, 2010\n\nNo\n\nNo\n\nOriginal\n\nSH18N\n\nShanghai\n\nOctober, 2010\n\nNo\n\nNo\n\nAdditional\n\nSH19S\n\nShanghai\n\nOctober, 2010\n\nNo\n\nNo\n\nOriginal\n\nSH20N\n\nShanghai\n\nOctober, 2010\n\nNo\n\nNo\n\nAdditional\n\nSH21N\n\nShanghai\n\nOctober, 2010\n\nNo\n\nNo\n\nOriginal\n\nSH22N\n\nShanghai\n\nOctober, 2010\n\nNo\n\nYes\n\nAdditional\n\n398 | On Their Best Behavior?\n\n\x0cInterview\nCode\n\nLocation\n\nTime of\nInterview\n\nHead or Assistant\nHead of Firm\n\nPartner\n\nOriginal or\nAdditional Sample\n\nXX01S\n\nRural\nHunan\n\nDecember, 2010\n\nNo\n\nNo\n\nOriginal\n\nXX02S\n\nRural\nHunan\n\nDecember, 2010\n\nYes\n\nYes\n\nOriginal\n\nXX03S\n\nRural\nHunan\n\nDecember, 2010\n\nNo\n\nYes\n\nOriginal\n\nXX04S\n\nRural\nHunan\n\nDecember, 2010\n\nNo\n\nN/A*\n\nOriginal\n\nXX05S\n\nRural\nHunan\n\nDecember, 2010\n\nNo\n\nN/A*\n\nOriginal\n\nXX06\n\nRural\nHunan\n\nDecember, 2010\n\nYes\n\nN/A*\n\nOriginal\n\nXX07S\n\nRural\nHunan\n\nDecember, 2010\n\nNo\n\nYes\n\nOriginal\n\nXX08N\n\nRural\nHunan\n\nDecember, 2010\n\nNo\n\nNo\n\nAdditional\n\nXX09S\n\nRural\nHunan\n\nDecember, 2010\n\nNo\n\nYes\n\nOriginal\n\nXX10S\n\nRural\nHunan\n\nDecember, 2010\n\nNo\n\nNo\n\nOriginal\n\nXX11S\n\nRural\nHunan\n\nDecember, 2010\n\nUnknown\n\nUnknown Original\n\nXX12S\n\nRural\nHunan\n\nDecember, 2010\n\nNo\n\nNo\n\nOriginal\n\nXX13S\n\nRural\nHunan\n\nDecember, 2010\n\nNo\n\nYes\n\nOriginal\n\nXX14S\n\nRural\nHunan\n\nDecember, 2010\n\nYes\n\nYes\n\nOriginal\n\nXX15S\n\nRural\nHunan\n\nDecember, 2010\n\nNo\n\nNo\n\nOriginal\n\nCS01S\n\nChangsha,\nHunan\n\nNovember, 2010\n\nNo\n\nNo\n\nAdditional\n\nCS02N\n\nChangsha,\nHunan\n\nNovember, 2010\n\nNo\n\nNo\n\nOriginal\n\nCS03S\n\nChangsha,\nHunan\n\nNovember, 2010\n\nNo\n\nNo\n\nOriginal\n\nCS04S\n\nChangsha,\nHunan\n\nNovember, 2010\n\nNo\n\nNo\n\nOriginal\n\nCS05S\n\nChangsha,\nHunan\n\nNovember, 2010\n\nNo\n\nNo\n\nOriginal\n\n1>\n\nOn Their Best Behavior? | 399\n\n\x0cInterview\nCode\n\nLocation\n\nTime of\nInterview\n\nHead or Assistant\nHead of Firm\n\nPartner\n\nOriginal or\nAdditional Sample\n\nCS06S\n\nChangsha,\nHunan\n\nNovember, 2010\n\nNo\n\nYes\n\nOriginal\n\nCS07S\n\nChangsha,\nHunan\n\nNovember, 2010\n\nYes\n\nYes\n\nOriginal\n\nCS08S\n\nChangsha,\nHunan\n\nNovember, 2010\n\nNo\n\nYes\n\nOriginal\n\nCS09N\n\nChangsha,\nHunan\n\nNovember, 2010\n\nNo\n\nYes\n\nAdditional\n\nCS10S\n\nChangsha,\nHunan\n\nNovember, 2010\n\nNo\n\nNo\n\nOriginal\n\nCS11S\n\nChangsha,\nHunan\n\nNovember, 2010\n\nYes\n\nYes\n\nOriginal\n\nCS12S\n\nChangsha,\nHunan\n\nNovember, 2010\n\nNo\n\nYes\n\nOriginal\n\nCS13S\n\nChangsha,\nHunan\n\nNovember, 2010\n\nNo\n\nNo\n\nOriginal\n\nCS14S\n\nChangsha,\nHunan\n\nNovember, 2010\n\nNo\n\nNo\n\nOriginal\n\nCS15N\n\nChangsha,\nHunan\n\nNovember, 2010\n\nNo\n\nNo\n\nAdditional\n\nCS16N\n\nChangsha,\nHunan\n\nNovember, 2010\n\nNo\n\nNo\n\nAdditional\n\nCS17S\n\nChangsha,\nHunan\n\nNovember, 2010\n\nNo\n\nYes\n\nOriginal\n\nCS18N\n\nChangsha,\nHunan\n\nNovember, 2010\n\nNo\n\nNo\n\nAdditional\n\nCS19N\n\nChangsha,\nHunan\n\nNovember, 2010\n\nNo\n\nNo\n\nAdditional\n\nCS20S\n\nChangsha,\nHunan\n\nNovember, 2010\n\nYes\n\nYes\n\nOriginal\n\nCS21N\n\nChangsha,\nHunan\n\nNovember, 2010\n\nNo\n\nNo\n\nAdditional\n\nCS22N\n\nChangsha,\nHunan\n\nDecember, 2010\n\nYes\n\nYes\n\nAdditional\n\nCS23N\n\nChangsha,\nHunan\n\nDecember, 2010\n\nNo\n\nNo\n\nAdditional\n\nCS24S\n\nChangsha,\nHunan\n\nDecember, 2010\n\nYes\n\nYes\n\nOriginal\n\nGL01S\n\nGuilin,\nGuanxi\n\nFebruary, 2011\n\nNo\n\nNo\n\nOriginal\n\n400 | On Their Best Behavior?\n\n\x0cInterview\nCode\n\nLocation\n\nTime of\nInterview\n\nHead or Assistant\nHead of Firm\n\nPartner\n\nOriginal or\nAdditional Sample\n\nGL02S\n\nGuilin,\nGuanxi\n\nFebruary, 2011\n\nNo\n\nNo\n\nOriginal\n\nGL03S\n\nGuilin,\nGuanxi\n\nFebruary, 2011\n\nYes\n\nNo\n\nOriginal\n\nGL04S\n\nGuilin,\nGuanxi\n\nFebruary, 2011\n\nNo\n\nNo\n\nOriginal\n\nGL05S\n\nGuilin,\nGuanxi\n\nFebruary, 2011\n\nNo\n\nNo\n\nOriginal\n\nGL06S\n\nGuilin,\nGuanxi\n\nFebruary, 2011\n\nNo\n\nYes\n\nOriginal\n\nGL07S\n\nGuilin,\nGuanxi\n\nFebruary, 2011\n\nNo\n\nNo\n\nOriginal\n\nGL08S\n\nGuilin,\nGuanxi\n\nFebruary, 2011\n\nNo\n\nNo\n\nOriginal\n\nGL09S\n\nGuilin,\nGuanxi\n\nFebruary, 2011\n\nNo\n\nNo\n\nOriginal\n\nGL10L\n\nGuilin,\nGuanxi\n\nFebruary, 2011\n\nYes\n\nNo\n\nAdditional\n\nGL11S\n\nGuilin,\nGuanxi\n\nFebruary, 2011\n\nNo\n\nNo\n\nOriginal\n\nGL12S\n\nGuilin,\nGuanxi\n\nFebruary, 2011\n\nYes\n\nYes\n\nOriginal\n\nTable 4: Randomly Sampled Interviews\n1 This interview was terminated almost immediately as the informant had to leave unexpectedly. 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Interpretations of the Supreme Court on Certain Issues Concerning the Application\nof the Administrative Procedure Law of the People\xe2\x80\x99s Republic of China (\xe6\x9c\x80\xe9\xab\x98\xe4\xba\xba\xe6\xb0\x91\xe6\xb3\x95\xe9\x99\xa2\xe5\x85\xb3\xe4\xba\x8e\xe6\x89\xa7\xe8\xa1\x8c\xe3\x80\x8a\xe4\xb8\xad\n\xe5\x8d\x8e\xe4\xba\xba\xe6\xb0\x91\xe5\x85\xb1\xe5\x92\x8c\xe5\x9b\xbd\xe8\xa1\x8c\xe6\x94\xbf\xe8\xaf\x89\xe8\xae\xbc\xe6\xb3\x95\xe3\x80\x8b\xe8\x8b\xa5\xe5\xb9\xb2\xe9\x97\xae\xe9\xa2\x98\xe7\x9a\x84\xe8\xa7\xa3\xe9\x87\x8a).\n\nhttp://www.cietac.org/index/references/Laws/\n\n47607cb98020e07f001.cms (May 2, 2013). (\xe2\x86\xb5 Return)\nWank, David. 2002. \xe2\x80\x9cBusiness-State Clientelism in China: Decline or Evolution?\xe2\x80\x9d In Social\nConnections in China: Institutions, Culture, and the Changing Nature of Guanxi, eds. Thomas\nGold, Doug Guthrie, and David Wank. Cambridge, UK: Cambridge University Press, 83\xe2\x80\x93115. 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Poverty Reduction and Economic\nOn Their Best Behavior? | 405\n\n\x0cManagement Financial and Private Sector Development Unit East Asia and Pacific Region.\nPoverty Reduction and Economic Management, Financial and Private Sector Development Unit\nEast\n\nAsia\n\nand\n\nPacific\n\nRegion.\n\nhttp://www-wds.worldbank.org/external/default/\n\nWDSContentServer/WDSP/IB/2006/11/09/000090341_20061109094356/Rendered/PDF/\n37759.pdf (\xe2\x86\xb5 Return)\nYang, Mayfair Mei-hui. 1994. Gifts, Favors, and Banquets: The Art of Social Relationships in China.\nCornell University Press. (\xe2\x86\xb5 Return)\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2002. \xe2\x80\x9cThe Resilience of Guanxi and Its New Deployments: A Critique of Some New Guanxi\nScholarship.\xe2\x80\x9d China Quarterly: 459\xe2\x80\x9376. (\xe2\x86\xb5 Return)\nZhang, Wei, and Ji Li. 2013. Soft Law v. Hard Guanxi: An Empirical Study of Business Investment,\nLaw and Political Connections in China. Rochester, NY: Social Science Research Network. SSRN\nScholarly Paper. http://papers.ssrn.com/abstract=2291787 (March 6, 2014). (\xe2\x86\xb5 Return)\n\n406 | On Their Best Behavior?\n\n\x0cAppellate Courts\nMany appellate, unlike trial courts, have the capacity to pick and choose which cases they will\nhear and decide. The presence or lack of discretionary jurisdiction has been shown to greatly\naffect the institutional norms and decision-making of these courts, as well as the actors who\nappear before these benches. Here we offer two sides of this coin. First, Professors Elizabeth\nLane, Jessica Schoenherr, Rachel Schutte and Ryan Black use archival data to reveal how interest\ngroups influence the agenda of the U.S. Supreme Court\xe2\x80\x94a court with nearly limitless discretion\nover its docket. Supporting earlier work, these scholars show that interest group efforts at the\ndocketing stage remain extremely effective signals and significantly increase the likelihood of\na case obtaining scarce space on the Court\xe2\x80\x99s docket. On the other side of the coin, we have\na state supreme court that has no discretion over its docket and therefore hear and decide\nevery qualifying case. This leads to a very different mix of cases and concerns. Professor William\nMcLauchlan provides us with a case study of the Montana Supreme Court\xe2\x80\x99s workload and its high\nlevel of mundane cases in direct contrast to the picture painted of the U.S. Supreme Court docket\nby Pacelle and Pyle or Lane, et al.\nLane, Elizabeth, Jessica Schoenherr, Rachel Schutte, and Ryan Black. \xe2\x80\x9cJudicial Discretion and US\nSupreme Court Agenda Setting.\xe2\x80\x9d\nMcLauchlan, William. \xe2\x80\x9cAn Empirical Examination of the Business of the Montana Supreme Court\xe2\x80\x9d\n\nAppellate Courts | 407\n\n\x0c17. Judicial Discretion and US Supreme\nCourt Agenda Setting\nELIZABETH A. LANE, JESSICA A. SCHOENHERR, RACHEL A. SCHUTTE, AND RYAN C. BLACK\n\nThe scene is familiar to anyone who has watched a movie or read a book about a lawsuit: the\nsympathetic protagonist loses his case, and his attorney promises him they still have one more\nchance to win. The attorney then shoves his files into his briefcase, storms out of the courtroom,\nand announces to the waiting crowd (filled with reporters) that they will be taking their case\n\xe2\x80\x9call the way to the Supreme Court!\xe2\x80\x9d Attorneys representing Barbara Grutter, a forty-three-yearold white woman aiming to enter the University of Michigan Law School, found themselves in a\nless-dramatic version of this exact position following their loss before the Sixth Circuit Court of\nAppeals. Grutter sued the law school for using a race-based admissions policy that she claimed\ndiscriminated against her and therefore violated her rights under the Equal Protection Clause of\nthe Fourteenth Amendment (Morfin et al. 2006; Perry 2007). Like many litigants in modern history,\nGrutter and her attorneys turned to the Supreme Court in a last-ditch effort to find a favorable\nresolution to her case. Yet the odds of the Court hearing the case were long. Despite growing\ndemand for the Court\xe2\x80\x99s attention on constitutional issues, the justices deny review to 99 percent\nof the litigants who ask the Court to consider their cases (Lane and Black 2017). Grutter\xe2\x80\x99s appeal\nmade it past the cut, however, and the Court agreed to hear arguments in her case, now known as\nGrutter v. Bollinger (2003).\nWhy did the Court agree to hear Grutter\xe2\x80\x99s case but not somebody else\xe2\x80\x99s? One possible answer to\nthis question is that the justices saw an opportunity to move policy closer to their preferences\n(Black and Owens 2009a; Caldeira, Wright and Zorn 1999). Supreme Court justices are not simply\nmotivated by the law; like other political elites in Washington, they have policy preferences and\nwant to use their powerful positions to move policy toward their ideal points (Epstein and Knight\n1998). When a justice considers whether to grant review in a case, she thinks about the future and\nconsiders how the final outcome on the merits can shift policy and if that policy will be closer\nto her preferences (Black and Owens 2009a; Caldeira, Wright and Zorn 1999). With affirmative\naction in higher education, for example, the Court had already ruled in Regents of the University\nof California v. Bakke (1978) that race was a permissible consideration in admission decisions\nbecause schools had a compelling interest in ensuring diversity in classes. Given this explanation,\nconservative justices might have anticipated they had the chance to overturn or weaken Bakke,\na ruling with which many of them disagreed, and thus they finally agreed to review law school\nadmission policies in Grutter (Toobin 2008).\nA more legalistic explanation of the justices\xe2\x80\x99 decision is the presence of conflict. The Supreme\n408 | Judicial Discretion and US Supreme Court Agenda Setting\n\n\x0cCourt has a duty to ensure universal interpretation of the law throughout the country, which\nmeans stepping in when the lower courts disagree (C-SPAN 2010; Ulmer 1984). Despite the Court\xe2\x80\x99s\noriginal ruling in Bakke, circuit courts struggled to implement the decision in the face of lawsuits\nfrom angry students who felt they lost their spots at dream schools to less-qualified minority\ncandidates. The Fifth Circuit Court of Appeals, which covers federal appellate cases in Texas,\nLouisiana, and Mississippi, ruled in Hopwood v. Texas (1996) that the law school at the University\nof Texas lacked a \xe2\x80\x9ccompelling justification\xe2\x80\x9d for using affirmative action (Burka 1996). Further\nwest, the massive Ninth Circuit, which oversees district courts in California, Oregon, Washington,\nIdaho, Montana, Nevada, Arizona, Alaska, and Hawaii, ruled in Smith v. University of Washington\nLaw School (2000) that the University of Washington Law School\xe2\x80\x99s affirmative action admissions\nprogram met the Bakke standard (Gearan 2001). The Sixth Circuit\xe2\x80\x99s ruling in favor of the University\nof Michigan Law School in Grutter added to the conflict, and the cacophony might have pushed\nthe Court to finally agree to review one of these affirmative action cases and resolve the problem.\nA third possible explanation is that Grutter\xe2\x80\x99s case was important and the justices therefore felt\nobligated to weigh in on it. Just as the Court has an obligation to ensure uniformity in the law, it\nalso has a responsibility to answer unsettled legal questions that the public considers important\n(Perry 1991). Affirmative action programs undoubtedly met that requirement. Universities\xe2\x80\x99\ndecisions to consider race in admissions were controversial when the justices decided Bakke in\n1978, and they remain controversial today (Coyle 2013). Even if the justices failed to notice public\nattention toward the issue, they still knew the case was important because Grutter\xe2\x80\x99s petition\ncame with a signal attached to it: three different interest groups filed amicus curiae (\xe2\x80\x9cfriend of\nthe Court\xe2\x80\x9d) briefs in the Grutter case. These briefs described how a decision in this case would\nextend far beyond Barbara Grutter and the University of Michigan Law School, impacting states,\nlaw schools, and employers who all had an interest in knowing if affirmative action programs\nwere constitutional. The fact that interest groups and public interest law firms dedicated time and\nresources to submitting these amicus briefs before the Court even agreed to hear Grutter\xe2\x80\x99s case\nsent a powerful signal that this case was important enough to deserve the justices\xe2\x80\x99 attention.\nIn this chapter, we set out to explain the Supreme Court\xe2\x80\x99s agenda-setting process and then\nexamine the roles that policy, the law, and organized interests can play in influencing the justices\xe2\x80\x99\ndecisions in that process. The Supreme Court has a discretionary docket, allowing the justices to\nselect the cases they want to hear (Perry 1991). The justices have agreed to hear fewer cases since\nthe late 1980s, but the shrinking docket has not stopped litigants from appealing to the Court in\nrecord numbers (Lane and Black 2017; Owens and Simon 2011). The end result of this mismatch\nis a mound of petitions through which the justices must sort each term. Litigants and interest\ngroups can attract the justices\xe2\x80\x99 attention by sending cues about a case\xe2\x80\x99s ideological impact, its\ninvolvement in a lower court conflict, or its importance. After walking through the process and\nexplaining what research shows to be true about it, we narrow our focus to one particular part\nof the process: interest groups\xe2\x80\x99 submission of amicus briefs that support or oppose a petitioner\xe2\x80\x99s\nJudicial Discretion and US Supreme Court Agenda Setting | 409\n\n\x0crequest for review. We use new data to show that interest group participation in agenda setting\ncan influence the Court\xe2\x80\x99s ultimate decision to hear a case, confirming Caldeira and Wright\xe2\x80\x99s (1988)\nseminal work on agenda setting and signaling in the process. Finally, we end our analysis by\noffering our thoughts about where the literature can go from here.\n\nSetting the Supreme Court\xe2\x80\x99s Agenda\nHistory\nSupreme Court justices have not always had a say in the cases they review. Article III of the\nConstitution established the Supreme Court and outlined the limited circumstances under which\nthe Court could act as a trial court, which hears testimony and makes factual determinations.\nThe founders intended the Supreme Court to mostly act as an appellate court, which focuses on\nquestions of law, but the Constitution gave Congress the power to determine the Court\xe2\x80\x99s appellate\njurisdiction. Originally, Congress required the justices to hear every case appealed to them, but\nthat caseload grew to be unmanageable, and after some polite urging by Chief Justice Fuller,\nCongress agreed in 1891 to give the justices some discretion over their docket (Sternberg 2008).\nIn the thirty years that followed, the caseload quickly returned to unwieldy status, driving Justice\nMcReynolds and Chief Justice Taft to plead with Congress to give the Court more discretion over\nits docket (Stevens 1983). Congress subsequently passed the Judiciary Act of 1925, which required\nall plaintiffs appealing to the Supreme Court to file petitions for the writ of certiorari (Latin for\n\xe2\x80\x9cto be more fully informed\xe2\x80\x9d). These petitions request that lower court documents be sent to the\nHigh Court, along with a legal brief describing why their case is worthy of the justices\xe2\x80\x99 review\n(Perry 1991). When the Court\xe2\x80\x99s docket reached historic highs in the 1970s and 1980s, all nine\njustices wrote to Senator Kastenmeier and asked for even more discretion over the Court\xe2\x80\x99s docket.\nCongress again provided it, removing virtually all of the Court\xe2\x80\x99s mandatory jurisdiction via the Case\nSelections Act of 1988 (Owens and Simon 2011).\nAs the justices gained more autonomy over their agenda, they established two rules to govern their\ndecision to grant review in a case. The first is Supreme Court Rule 10, originally established in\n1954. Rule 10 lists the circumstances under which the justices are more likely to grant review in a\ncase, specifically when one of the following occur: (1) conflict between lower courts, whether it is\nbetween two circuit courts or between a state court of last resort and a circuit court; (2) conflict\nbetween a state supreme court or circuit court and a past Supreme Court decision; and (3) an\nimportant matter of federal law that has not previously been addressed by the Supreme Court.\nRule 10 is purposefully vague, but it provides the litigants with direction about the information\n410 | Judicial Discretion and US Supreme Court Agenda Setting\n\n\x0cworth highlighting in their petitions (Perry 1991). The second rule governing the decision to grant\ncertiorari, more commonly known as \xe2\x80\x9ccert,\xe2\x80\x9d is the Rule of Four, established by the Judiciary Act of\n1925 (Cordray and Cordray 2004). According to this rule, the justices place a case on the docket\nif four of the nine justices vote to grant review. The Rule of Four is the only countermajoritarian\nact in which the Court engages. Of course, securing four votes to grant cert is very different\nfrom securing a five-vote majority on the merits, which leads to the justices engaging in forwardlooking behavior when deciding whether to review (Black and Owens 2009a; Caldeira, Wright and\nZorn 1999).\n\nProcess\nThe agenda-setting process begins with somebody losing a case involving a federal issue in either\na federal circuit court or a state court of last resort. After losing, litigants have the opportunity\nto appeal to the Supreme Court if they so choose; if they decide to petition the Court to review\nthe case, they file a petition for certiorari, as shown in the top left corner of Figure 1. Here the\nlitigant, now known as the petitioner, writes an explanation of how his or her case meets the Rule\n10 requirements and requests all case documents from the lower court be sent to the Supreme\nCourt for review. After the petitioner files the documents with the Court, the lower court winner,\nnow known as the respondent, has the opportunity to respond to the petition for certiorari by\nwriting a brief in opposition and explaining why the justices should pass on this particular case.\nDuring the filing and responding stage, interest groups can file amicus curiae briefs, also known\nas \xe2\x80\x9cfriend of the Court\xe2\x80\x9d briefs, that offer support for or opposition to the petitioner\xe2\x80\x99s request.\n\nJudicial Discretion and US Supreme Court Agenda Setting | 411\n\n\x0cFigure 1: The flow chart above maps out the typical path or paid case petitioning the Court for review. Unpaid\ncases, or cases filed in forma pauperis by indigent defendants have different rules governing their review, and\ntherefore can follow a different path.\n\nOnce the petitioner and respondent have submitted all their materials to the Clerk of the Court,\nthe Clerk is responsible for distributing all case materials to the chambers so that each justice\ncan begin the review process. As the middle section of Figure 1 shows, the Clerk goes through\ntwo different distribution processes. Most of the justices participate in the cert pool, meaning\nthey \xe2\x80\x9cpool\xe2\x80\x9d their collective resources to make it through the thousands of cert petitions the\nCourt receives each term (Perry 1991). Rather than ask each chamber to review every cert petition\nindividually, the Clerk of the Court randomly assigns each cert petition to one of the participating\njustices\xe2\x80\x99 chambers, and that justice then assigns the petition to one of his or her law clerks\n(Ward and Weiden 2006). These law clerks are recent graduates of elite law schools who spend\na year of their lives working as legal aides to the justices (Black, Boyd and Bryan 2014). The\nlaw clerk responsible for the petition drafts a pool memo that reviews the petition, discusses\n412 | Judicial Discretion and US Supreme Court Agenda Setting\n\n\x0cthe \xe2\x80\x9ccertworthiness\xe2\x80\x9d of the case, and makes a recommendation to either grant or deny review.\nAfter drafting a pool memo, the law clerk submits it to the Chief Justice\xe2\x80\x99s chambers, where it\nis then redistributed to each participating justice for review and markup (Black and Boyd 2011).\nAlternatively, justices can remain out of the cert pool, in which case the Clerk distributes every\ncert petition to those justices for their own review. As of the October 2018 term, Justices Alito and\nGorsuch do not participate in the pool, so they (or their law clerks) must review every petition\nsubmitted to the Court and identify certworthy cases on their own (Mauro 2018).\nThe justices make their first decisions regarding the agenda-setting process when they receive\nthe cert memos and their accompanying documentation. After reading through a cert memo, the\njustices decide if they personally want the full Court to formally consider that cert petition. Cases\nthat a justice deems worthy of conversation get added to the \xe2\x80\x9cdiscuss list,\xe2\x80\x9d which, as its name\nimplies, is a list of all the cases the justices will eventually discuss and vote at conference. As\nshown by the third and final section of Figure 1, the Chief Justice starts the list and circulates it.\nAn associate justice can add any cases he or she feels the Chief missed, but no justice can remove\na case once it appears on the list. Any case that does not appear on the discuss list is summarily\ndenied review and the lower court\xe2\x80\x99s ruling stands. Making it onto the discuss list is the first step\ntoward making it to the Supreme Court, though few litigants realize this, as the justices guard the\ndiscuss list and refuse to publicly release it (Perry 1991).\nThe justices go through the discuss list and identify the cases worth reviewing at their weekly\nconference (Perry 1991). While seniority typically dictates who speaks first on an issue, that is not\nalways the case when it comes to cert petitions; the justice who placed the case on the discuss list\nleads the conversation about it. After talking about each petition, the justices vote to grant or deny\nreview, starting with the Chief, then going around the conference table in order of seniority (Black\nand Owens 2012c). According to the Rule of Four, if a case receives four votes, the justices will\nschedule it for oral arguments. If a case does not get four votes to grant review or three votes to\n1\n\ngrant and a neutral \xe2\x80\x9cjoin-three\xe2\x80\x9d vote, the justices deny review and the lower court\xe2\x80\x99s ruling stands.\nThe final step of the agenda-setting process is the release of the order list, the official document\nannouncing each petition\xe2\x80\x99s resolution. Cases that failed to make the discuss list and cases that\nfailed to garner four votes in favor of review all go under the populous \xe2\x80\x9cCertiorari Denied\xe2\x80\x9d section,\nwhile all petitions that made it off the discuss list and onto the docket get listed under \xe2\x80\x9cCertiorari\n\n1. While Supreme Court justices typically cast up or down votes on cert petitions, they have the option\nof voting to \xe2\x80\x9cjoin three,\xe2\x80\x9d meaning they will provide the fourth vote to grant cert if three other\njustices want to hear the case (Black and Owens 2009b). Perry (1991) explains that justices typically\nengage in this behavior when they are ambivalent about a case but are willing to hear it if enough\ncolleagues view it as certworthy. Stras\xe2\x80\x99 (2010) analysis of Justice Thurgood Marshall\xe2\x80\x99s papers\nsuggests this happened about 12 percent of the time between 1979 and 1990. See also O\xe2\x80\x99Brien (1997).\nJudicial Discretion and US Supreme Court Agenda Setting | 413\n\n\x0cGranted.\xe2\x80\x9d The order list does not disclose the justices\xe2\x80\x99 conference vote regarding any case. The\nonly method of releasing these votes in real time is if a justice releases a dissent from denial of\ncert. Dissents from denial have increased in frequency in recent terms but are still uncommon.\nThe order list is the only public record that exists of the justices\xe2\x80\x99 agenda-setting decisions. From\nthe minute the petition reaches the Clerk to the morning the justices release their order list,\nall decisions regarding cert petitions take place under a veil of secrecy. The justices are firm\nthat clerks cannot take materials outside of the building or talk to the press about the Court\xe2\x80\x99s\nproceedings, and the justices forbid anyone other than the nine from entering their conference\nroom (Woodward and Armstrong 1979). Consequently, no one sees the discuss list or sees how\nthe justices voted on a cert petition in real time. Besides dissent from denial, the only way the\ndiscuss list or conference votes are disclosed is through the release of justices\xe2\x80\x99 personal papers.\nThe availability and accessibility of archival data, specifically from Justice Harry A. Blackmun,\ntransformed research and the public\xe2\x80\x99s understanding of the agenda-setting process (Lane and\nBlack 2017).\n\nThe Decision to Grant Review\nStarting with the 2000 term, the justices and their clerks review, on average, about 150 cert\npetitions a week and about 8,000 petitions a term. They narrow these 8,000 petitions down to\nthe 500 cases that make the discuss list and then narrow those 500 cases down to the 80 or so\n2\n\nthat make the Court\xe2\x80\x99s agenda (Lane and Black 2017). Even with clerks\xe2\x80\x99 help, the justices spend\na considerable amount of time reviewing cert petitions while still trying to fulfill their other\ncourtly duties. Justice Scalia colorfully described the time-consuming task as \xe2\x80\x9cundoubtedly, to\nmy mind, the most, what shall I say, onerous and, for the most part, uninteresting part of the\njob\xe2\x80\x9d (C-SPAN 2010), and Justice O\xe2\x80\x99Connor compared the task to doing exercise every day (Ward\nand Weiden 2006). The justices consequently look for ways shorten the time it takes to make it\nthrough the mountain of petitions they receive. They know what makes a case certworthy\xe2\x80\x94policy,\nlegal conflict, and importance\xe2\x80\x94but they need help finding certworthy cases in the noise of so\nmany petitions. Cues or informational shortcuts that can be found in petitions are proven valuable\nresources, and litigants and interest groups can help send these signals (Tanenhaus et al. 1963).\nFirst and foremost, petitioners grab the justices\xe2\x80\x99 attention by offering them a case that will advance\ntheir ideological interests in the long term (Perry 1991). Supreme Court justices are, after all,\n\n2. Justice Kennedy, speaking at a student forum at the University of California Washington Center,\nsuggested the Court places about five hundred cases a term on the discuss list (Bravin 2013).\n414 | Judicial Discretion and US Supreme Court Agenda Setting\n\n\x0cmotivated in large part by their policy preferences; more specifically, they are motivated by their\nability to influence the Court\xe2\x80\x99s final merits decision (Epstein and Knight 1998). The justices watch\nfor cases that are \xe2\x80\x9cgood vehicles\xe2\x80\x9d for change and they are more likely to grant review to those\ntypes of cases (Perry 1991). Supreme Court justices ask themselves if a case will help them move\npolicy in their preferred direction (Black and Owens 2009a, 2012c; Caldeira, Wright and Zorn\n1999). This is because the justices are forward thinking and attempt to see how their cert vote will\nplay out at the merits stage, given they make a decision on the merits with the help of the eight\nother justices (Black and Owens 2009a, 2012c; Caldeira, Wright and Zorn 1999). So, for example, a\nconservative justice will not want to vote to grant review on a case if he expects the liberals will\nwin on the merits and move the policy further from what he thinks it should be. In this scenario,\nhe is better off voting to deny review and let a liberal decision stand for one circuit as opposed to\nthe entire country if the Supreme Court were to rule.\nAlthough justices are motivated by their ideology, they are not simply politicians in robes. Legal\nand institutional factors do influence agenda-setting decisions and can constrain the justices\xe2\x80\x99\nbehavior (Perry 1991). First and most obviously, the justices follow their own rules and look for\nthe presence of lower court conflict when they evaluate petitions (Stern et al. 2002). Attorneys\nconsequently seek to identify the conflict in their case, alleging in their petition that it exists in\norder to get the justices\xe2\x80\x99 attention. At the same time, however, the justices and clerks can also\ninvestigate these claims and the magnitude of the conflict (Black and Boyd 2013). Past research\nhas found that the presence of legal conflict is one of the strongest predictors of a case being\ngranted review (Black and Owens 2009a; Caldeira and Wright 1988; Caldeira, Wright and Zorn\n1999; Schoenherr and Black 2019). In fact, the presence of conflict can even increase the likelihood\nthat a justice who would otherwise be ideologically predisposed not to grant cert casts a grant\nvote in that case.\nThe justices also consider the parties involved in a case, especially when the US government is\ninvolved. When the federal government appears as a petitioner, the justices are significantly more\nlikely to place a case on the discuss list and eventually grant it review (Black and Owens 2011; Black\nand Owens 2012a). The Solicitor General, who represents the United States before the Court, is\noften referred to as the \xe2\x80\x9cTenth Justice\xe2\x80\x9d because of his expertise and frequent participation at the\nMarble Palace (Black and Boyd 2012; Caplan 1988; Wohlfarth 2009). The justices have a general\ntrust in the Office of the Solicitor General at the agenda stage because he is selective, meaning\nhe only brings the best cases to the justices for their review (Bailey, Kamoie and Maltzman 2005;\nBlack and Owens 2012b; Perry 1991; Zorn 2002). Even when the United States is not a party to the\ncase, the justices might call for the views of the Solicitor General (CVSG) and ask him to weigh in\non a case\xe2\x80\x99s certworthiness (Anders 2017; Black and Owens 2012a; Thompson and Wachtell 2009).\nThe Solicitor General\xe2\x80\x99s involvement sends a bright signal to the justices about a case\xe2\x80\x99s potential for\nmaking the docket.\n\nJudicial Discretion and US Supreme Court Agenda Setting | 415\n\n\x0cThe number of amicus briefs filed at the agenda stage is another strong predictor of whether\na case appears on the discuss list and also on the Court\xe2\x80\x99s agenda. These briefs signal the vast\nimportance of the answer to the legal question(s) raised by the case. The signal\xe2\x80\x99s strength comes,\nat least in part, from the group\xe2\x80\x99s willingness to endure the cost associated with amicus briefs.\nAmicus participation is intimately tied to a group\xe2\x80\x99s funds; interest groups with larger budgets\nare more likely to submit amicus briefs than are groups with less money to use (Solberg and\nWaltenburg 2006). Amicus briefs are costly enterprises for outside interests, and these groups will\ntherefore only sacrifice resources when they have a vested interest in the outcome (Caldeira and\nWright 1988; Schoenherr and Black 2019). These briefs consequently send a strong signal to the\njustices that a case deserves their consideration. Amicus briefs filed by the Solicitor General send\na particularly strong signal about a case\xe2\x80\x99s importance (Bailey, Kamoie and Maltzman 2005; Black\nand Owens 2012b), suggesting that combining some of these signals increases their magnitude.\nThe justices evaluate these cues differently depending on the stage of the process, however. As\nBlack and Boyd (2013) explain, the justices look for low-cost cues about a case\xe2\x80\x99s certworthiness\nwhen considering it for the discuss list. The justices are more likely to place a case on the discuss\nlist if a circuit court judge published a dissent in the case, if conflicts exist in the lower court\xe2\x80\x99s\nrecord, if the Solicitor General gets involved in a case, or if interest groups file amicus briefs\nregarding the petition for certiorari (Black and Boyd 2013). They are also less likely to place a case\non the discuss list if the circuit court did not publish its decision or if the district and circuit courts\nsided with the same party (Black and Boyd 2013). The justices begin their review by looking for\nbasic facts that might indicate the case is interesting to them.\nWhen the justices evaluate whether cases should move from the discuss list to the docket, they\nchange their evaluation strategy. The justices are less dependent on low-cost, low-information\ncues at this point (Black and Boyd 2013), at least in part because they have the time to evaluate\npetitions more closely when they only have ten or so a week to consider (Baum 2015). They instead\npay more attention to high-information cues. While the presence of conflict (weak or strong)\ninfluences the likelihood that a case makes the discuss list and the docket, the effect is larger at\nthe docket stage, when the justices have time to confirm the strength of the conflict (Black and\nBoyd 2013). The same is true for other high-information cues, such as the presence of the Solicitor\nGeneral in a case and the number of amicus briefs submitted with the petition (Black and Boyd\n2013).\nThe general substantive point we want to make here is that there are two stages in the Court\xe2\x80\x99s\nagenda-setting process: the creation of the discuss list and the final agenda-setting vote. In the\npages and eventual quantitative analysis that follows, we opt to focus on the final decision to grant\nor deny review conditional on the fact that a case has already made it to the discuss list. We\ndo so for both substantive and practical reasons. In terms of substance, the question of interest\nis whether a case is granted review. Some are; most are not. This variation is what ultimately\n416 | Judicial Discretion and US Supreme Court Agenda Setting\n\n\x0cinfluences the content of law. Simply making it on the discuss list is a necessary but not sufficient\ncondition. One might wonder, why not simply consider both at the same time? This is a great\nobservation, but for the scope of the chapter, please take us at our word that what seems to be a\n3\n\nstraightforward tweak would open up a colossal can of worms that we seek to avoid.\n\nAmicus Briefs and Agenda Setting\nAs the previous section suggests, a multitude of factors can influence the justices\xe2\x80\x99 decision to\ngrant review in a case. In the empirical analysis that follows, we focus on one of the many:\namicus briefs submitted before the Court agrees to hear a case. We do this because everything\nwe understand about agenda setting and signaling, from low-cost name recognition to high-cost\nvalidation of conflict, stems from a seminal piece by Caldeira and Wright (1988) about amicus\nbriefs and agenda setting. Caldeira and Wright suggested that interest groups can signal a case\xe2\x80\x99s\nimportance by filing an amicus brief alongside a litigant\xe2\x80\x99s petition for certiorari. Importantly, it\ndoes not matter if the brief supports the petitioner or opposes the petitioner\xe2\x80\x94any filing by an\ninterest group increases the likelihood of the Court granting cert. The signal is what Black and\nBoyd (2013) later call a low-cost, high-information cue; it is easy for the justices to see that\nsomeone filed an amicus brief at the agenda-setting stage, and its presence provides the justices\nwith information about the petition\xe2\x80\x99s importance. Amicus briefs submitted during the agendasetting stage are powerful because they initially appear illogical\xe2\x80\x94interest groups have limited time\nand resources to spend on amicus briefs (Hansford 2004), so they typically wait for a case to make\nthe docket before they put together a brief. If organized interests invest their time and resources\ninto a case before the Court has even put it on its agenda, however, then they must be doing so\nbecause the case is that important. Just as the justices pay attention to the existence of conflict\nwhen reviewing cert petitions, they also pay attention to a case\xe2\x80\x99s importance. So, do amicus briefs\nsend this signal to the justices? Our research question is simple: Does the number of amicus briefs\nsubmitted in a case at the agenda-setting stage increase the likelihood the Court agrees to hear\nthat case?\nAs Black and Boyd (2013) point out, amicus briefs influence the justices most when they are\nconsidering moving a case from the discuss list to the docket. That is, research shows that amicus\n\n3. By looking at this footnote, you absolve us of complaining about being overwhelmed. The general\ntype of problem this two-stage process presents is what we call selection bias. The two stages are\nclearly related. In fact, they are actually too closely related for the statistical methods developed for\nthese general types of problems to work. Want to know more? Go take a look at Heckman selection\nmodels and the problem of identification\xe2\x80\x94but don\xe2\x80\x99t say we didn\xe2\x80\x99t warn you.\nJudicial Discretion and US Supreme Court Agenda Setting | 417\n\n\x0cbriefs exert their largest influence when a case is already on the discuss list; when justices are\ncurating the list, they are more likely to consider low-cost, low-information cues, such as the\npresence of conflict or lower-court dissent. For the sake of this study, then, we restrict our\nfocus to the potentially certworthy cases and examine the cases that made the discuss list. Of\ncourse, studying anything involving the discuss list requires obtaining a copy of said list, and\nthe Court does not release information about it. As we mentioned previously, however, scholars\nhave successfully used the justices\xe2\x80\x99 private papers to collect discuss lists and study agenda setting\n(Black and Boyd 2012; Black, Boyd and Bryan 2014; Black and Owens 2009a; Epstein, Segal and\nSpaeth 2007; Schoenherr and Black 2019). Justice Harry Blackmun\xe2\x80\x99s papers, specifically, are the\npapers that most scholars use. Blackmun, who served on the Court from 1970 to 1994, meticulously\ndocumented his life as a member of the Court and saved everything, which he donated to the\nLibrary of Congress (Greenhouse 2005). Epstein, Segal, and Spaeth (2007), armed with a National\nScience Foundation grant, digitized the papers from the 1986 to 1993 terms and made this treasure\ntrove of internal documents (including discuss lists) available to the masses. As Black and Owens\nexplain, the Blackmun papers \xe2\x80\x9coffer an unprecedented view of the Supreme Court\xe2\x80\x99s agendasetting decisions\xe2\x80\x9d (2009b, 254), and scholars have taken full advantage of the offerings to better\nunderstand how the Court sets its agenda (Black and Owens 2009a, b; Black and Boyd 2013;\nSchoenherr and Black 2019). Following in that tradition, we use Black and Owens\xe2\x80\x99s (2009a) agendasetting data for our analysis. The data set covers a random sample of 360 paid, non\xe2\x80\x93death penalty\npetitions from the federal courts of appeals that made the discuss list between the 1986 and 1993\n4\n\nterms.\n\nOur dependent variable is a dichotomous indicator of the Court\xe2\x80\x99s announced decision to grant or\ndeny review in a case. The variable takes the value of 1 if the Court grants review in the case and\ntakes the value of 0 otherwise. Because this variable can only take two possible values, we use\nprobit models for our analysis (Long 1997).\nOur key independent variables are the number of amicus briefs filed (1) in favor of the petitioner\nand (2) in favor of the respondent at the agenda-setting stage. This means we believe that each\nadditional amicus brief will increase the likelihood of the Court granting review.\nBecause we want to focus on amicus briefs\xe2\x80\x99 influence on agenda setting, we also have to consider\nother factors that could influence the justices\xe2\x80\x99 decision to grant review. That is to say, we have\nto control for all the factors we discussed in the previous section in our model. We do this\n\n4. 4. We exclude state supreme courts from our analysis because it is not, at this time, possible to put\nstate courts in the same ideological space as the US Supreme Court. Scholars are working on it (see\nBryan and Owens 2017; Caughey and Warshaw 2018), but currently, the lack of data prohibits a wider\nanalysis. In any event, in terms of the cases ultimately granted review that receive a signed opinion,\nonly about 20 percent of them come from state courts (Spaeth et al. 2018).\n418 | Judicial Discretion and US Supreme Court Agenda Setting\n\n\x0cby including variables for conflict (alleged, weak, and strong), Solicitor General involvement,\nlower court conflict, and case importance as signaled by amicus briefs. Table 1 lists the control\nvariables that we employ as well as how we measure them, how the literature suggests they should\ninfluence the likelihood the Court agrees to review the case, and what our research finds to be\nstatistically significant.\n\nAlleged Conflict\n\nCoded as 1 if the petitioner\'s mentions conflict between two lower courts\nor a lower court and the Supreme Court.\n\n+\n\nNo\n\nWeak Conflict\n\nCoded as 1 if the petitioner alleges conflict, but the clerk discounts the\nactuality of this conflict in his memo.\n\n+\n\nNo\n\nStrong Conflict\n\nCoded as 1 if the petitioner alleges conflict and the clerk agrees this\nconflict exists in his memo.\n\n+\n\nYes\n\nU.S. Supports\n\nCoded as 1 if the United States is a petitioner in a case or files an amicus\nbrief supporting review.\n\n+\n\nYes\n\nU.S. Opposes\n\nCoded as 1 if the United States is a respondent in a case or files an amicus\nbrief in opposition to review.\n\n-\n\nYes\n\nAppellate\nReversal\n\nCoded as 1 if the last court to hear the case reversed the previous court\'s\nruling.\n\n+\n\nYes\n\nAppellate\nDissent\n\nCoded as 1 if a dissent was authored by a judge in the lower court.\n\n+\n\nNo\n\n+\n\nYes\n\nLaw\nCoded as 1 if the lower court strikes down a federal statute as\nUnconstitutional unconstitutional.\nEn Banc Panel\n\nCoded as 1 if the lower court decision is reviewed by the entire circuit in\nan en banc review.\n\n+\n\nNo\n\nAppellate\nUnpublished\n\nCoded as 1 if the lower court did not publish an opinion on their decision.\n\n-\n\nNo\n\nU.S. Law\nWeek Coverage\n\nCoded as 1 if the circuit court\'s decision is mentioned in U.S. Law Week.\n\n+\n\nNo\n\nIdeological\nCongruence\n\nSurpreme Court median\'s Judicial Common Space score if the lower\ncourt\'s ruling was liberal. Inverse of the Supreme Court median\'s Judicial\nCommon Space score if the lower court\'s ruling was conservative.\n\n-\n\nNo\n\nPetitioner\nAmicus Briefs\n\nCount of the number of amicus briefs filed in support of review.\n\n+\n\nYes\n\nRespondent\nAmicus Briefs\n\nCount of the of amicus briefs filed in opposition to review.\n\n+\n\nYes\n\nTable 1: Control Variable Measurement\n\nJudicial Discretion and US Supreme Court Agenda Setting | 419\n\n\x0cResults\nWith the content of our model explained, we turn now to examining the model estimates to\nlearn more about how amicus briefs influence the Court\xe2\x80\x99s decision to grant review. The table of\ncoefficients can be found in the appendix. Because our model is nonlinear, we used maximum\nlikelihood estimation techniques, which produce coefficients that are difficult to interpret on their\nface (Long and Freese 2006). We thus use predicted values to aid us in interpretation. Figure 2\naddresses the probability the Court will grant review in a case as the number of amicus briefs filed\nin support of the petitioner (top) and in opposition to the petitioner (bottom) increases.\nOn the horizontal axis of Figure 2 is the number of amicus briefs filed supporting and opposing the\npetitioner, respectively. The vertical axis shows the estimated probability the Court will grant a\npetition review. Turning first to the top of Figure 2, the line illustrates that the more briefs filed in\nsupport, the higher the likelihood the Court will grant review in a case. The most common value in\nour data set is for a petition to have no supporting amicus briefs, with 83 percent of the petitions\nwe examine falling into this category. These petitions have a 32 percent chance of being granted\nreview. If you move right along the horizontal axis and examine petitions with a single brief in\nsupport of it, you see that likelihood increases to 36 percent, and the likelihood of being granted\nreview continues to increase with each additional amicus brief. A petition with five supporting\namicus briefs, which is in the ninety-ninth percentile of our sample data, has a 55 percent chance\nof being granted review by the Court. Importantly, notice that as you move from left to right on\nthe graph, the shaded area that surrounds the line gets wider, which indicates less precision in our\nresults. This is because most of the cases in our data set (83 percent) go to the justices without\na single amicus brief attached to them, while only about 1 percent of cases went to the justices\nwith four or more amicus briefs attached. Essentially, we have less data to help explain the Court\xe2\x80\x99s\nbehavior, so we are less able to distinguish our results. Even with this imprecision, however, these\nresults suggest that as more interest groups show interest in a case by filing briefs, the justices are\nmore likely to hear the case.\n\n420 | Judicial Discretion and US Supreme Court Agenda Setting\n\n\x0cFigure 2: Effect number of amicus briefs that support (left) and oppose (right) review on probability the Supreme\nCourt grants review of a petition. The gray and black shaded areas identify 90% confidence intervals. All other\nvariables held constant at their median values.\n\nThe line running through the graph on the bottom half of Figure 2 shows how the probability of the\nCourt granting review in a case changes as the number of amicus briefs opposing the petitioner\nincreases. Interestingly, we see the same trend that we saw in the top half\xe2\x80\x94the more amicus briefs\nfiled in opposition, the more likely the Court is to grant review. While a case with no amicus briefs\nattached to it has a 32 percent chance of being granted review, a case with a single opposing\namicus brief has a 46 percent (31 percent, 61 percent) chance of review. Importantly, a singlebrief increase for opposing briefs has a larger magnitude than the one for supporting briefs. The\nrelative effect of a single-brief increase for an opposing brief is about 44 percent, while a singlebrief increase for a supporting brief is only 12 percent. On the whole, Figure 2 suggests that filing\nan amicus brief at the agenda-setting stage increases the likelihood the Court grants review in a\ncase regardless of the brief\xe2\x80\x99s support or opposition of the petitioner. In short, we show that amicus\nbriefs influence the likelihood the Court moves a case from the discuss list to the docket and that\nthe more amicus briefs there are, the better the chance of making that happen.\nBut what do these results mean more generally and in comparison with other factors that we and\nprevious research have identified as being important? Recall our opening case anecdote, which\ninvolved the plight of the would-be law student, Barbara Grutter. At the onset, we posited three\npossible explanations for the Court\xe2\x80\x99s ultimate decision to grant review in the case. There were\npolitics: a conservative-leaning court wanted a chance to reconsider a liberal legal status quo.\nThere were legal considerations: the federal courts of appeals had arrived at conflicting answers\non the question of whether incorporating racial preferences in admissions was constitutional. And\nlast, there was the aspect we have devoted quite a few words to in the preceding pages\xe2\x80\x94namely,\nthe underlying policy importance of the case.\n\nJudicial Discretion and US Supreme Court Agenda Setting | 421\n\n\x0cThe chief benefit of adopting an otherwise complex statistical approach such as we have done\nhere is that it allows us to examine a host of explanations at the same time. Table 1 gives a\nsummary of these results, and Table 2 in our appendix provides the full tale of the tape for\nthose who like looking at lots of numbers. As for what these values mean for our three candidate\nexplanations, they allow us to say a number of things. First, the results of our study provide only\nlimited support for the role of ideological considerations. To assess this, we looked at the level\nof agreement (or disagreement) between the median Supreme Court justice and the ideological\ndirection of the lower court\xe2\x80\x99s decision. If ideology mattered, then we would expect that liberalleaning courts would want to review (and probably reverse) conservative lower court rulings.\nThe empirical results fall in something of a statistical no-man\xe2\x80\x99s-land. By this, we mean they are\nnot strong enough to confidently say that an effect exists, but at the same time, we would be\nuncomfortable shouting from our ivory towers that ideology is not a factor. We realize this is not\nterribly satisfying. Welcome to science. What we think this should mean for how you understand\nSupreme Court agenda-setting is that ideology is not the only factor that matters. We suspect\nother chapters in this book will come to the same conclusion\xe2\x80\x94or at least they should because,\nwell, that is the right answer.\nIf it is not all ideology, then what about the law? Legal factors matter. A lot. Big time. The presence\nof a clear legal conflict within the court system is the single most important factor with respect\nto the chance of a case being granted review. A typical case in our data has roughly a one-in-three\nchance of being selected. This typical case does not have clear legal conflict in it. If we use our\nmagic wand and \xe2\x80\x9cgive\xe2\x80\x9d conflict to this typical case, however, we would predict that the likelihood\nof review would jump\xe2\x80\x94nay, skyrocket\xe2\x80\x94to 69 percent. That\xe2\x80\x99s right, sports fans, it would more than\ndouble. As for the underlying importance of the case, we already gave you those numbers a few\nparagraphs ago, but in case you forgot, a case that is super-duper (highly technical) important\nhas about a 55 percent chance of being selected for review. That ultimately means that although\npolicy importance is quite important, it still takes the silver medal compared to the undisputed\nheavyweight champion of the world, the law. Importance fought the law and, as the song suggests,\nthe law won\xe2\x80\x94but not by a lot.\n\nConclusion\nThe Supreme Court\xe2\x80\x99s process of selecting cases for its dockets is complicated, with only the\nstrongest (or most appealing) cases making it onto the Court\xe2\x80\x99s agenda. Clerks and justices review\npetitions to build a short list of cases, and then the justices review them again before finally\nselecting the cases they want to hear. They look for lower court conflict, for signals of confusion\namong lower court judges, for known entities like the Solicitor General to vouch for a petitioner,\n422 | Judicial Discretion and US Supreme Court Agenda Setting\n\n\x0cand for interest groups to help signal a case\xe2\x80\x99s overall importance. The entire process occurs behind\na curtain of secrecy, with the public only ever seeing the final result of \xe2\x80\x9cCertiorari Denied\xe2\x80\x9d (for\nmost cases) and \xe2\x80\x9cCertiorari Granted\xe2\x80\x9d (for the lucky 1 percent). Yet there are certain tools that\ninterested parties\xe2\x80\x94the petitioners and organized interests, specifically\xe2\x80\x94can use to make their\ncase stand out to the justices. One of those tools, as we show here, is filing amicus briefs in support\nof or opposition to a cert petition. Such an action signals a case\xe2\x80\x99s importance to the justices, and\nthey respond to the cue (Caldeira and Wright 1988). Supreme Court justices are more likely to\nmove a case from the discuss list to the docket if it has amicus briefs filed alongside the cert\npetition.\nWhen Caldeira and Wright (1988) originally examined this phenomenon, they were some of the\nfirst to write about signaling theory and its importance to the agenda-setting process. They\npointed out that the justices need help sorting through the thousands of cases to find the good\nones and that interest groups can help the justices do that. Later work suggested that litigants\ncould do the same (Baird 2004; Black and Boyd 2012a; Perry 1991), including specific information\nin their cert petitions that could attract a justice\xe2\x80\x99s attention while simultaneously burying the\ninformation that could hurt it. While all these signals are obviously important (and we control for\ntheir presence in our analysis because research shows they all matter), we turned our analytical\nfocus to amicus briefs because they are the external signals of a case\xe2\x80\x99s importance. Obviously,\nlitigants want to show the justices why they need to hear a case; in fact, it is a requirement that\nthey explain a case\xe2\x80\x99s certworthiness to the justices when they file an amicus brief (Stern et al.\n2002). Amici, on the other hand, have no obligation to speak, and their voluntary action makes\nthem worthy of discussion and additional attention.\nOne limitation to our work here, which actually stems from the necessity of using archival data, is\nthe time-bounded nature of the results. We have eight terms\xe2\x80\x99 worth of discuss list data, but those\neight terms\xe2\x80\x99 worth of data are at least twenty-five years old. Since 1993, the Court has lost and\nreplaced seven members and dealt with a deluge of cert petitions that reached an all-time high of\nmore than ten thousand in the 2006 term (Lane and Black 2017). If the Court has undergone any\ninstitutional changes since 1993 that affected the agenda-setting process, scholars cannot study\nthem until another justice releases his or her papers. Given many of the current justices\xe2\x80\x99 advanced\nage, this might not look like a problem, but recent justices have voiced a strong preference for\nreleasing papers long after they have left the Court (Mauro 2016; Watts 2013). Some scholars, such\nas Feldman and Kappner (2016), work around this problem by studying the information in the cert\npetitions and the order lists, which can provide interesting descriptive information about agenda\nsetting. Hypothesis testing is more challenging, however, as determining whether legal conflict\nexists is time consuming. Of course, as more papers become available (Justice Souter\xe2\x80\x99s will be\navailable fifty years after his death, for example; see Mauro 2016), future scholars can study the\ncurrent Court much like we analyzed the Rehnquist Court here.\n\nJudicial Discretion and US Supreme Court Agenda Setting | 423\n\n\x0cAnother limitation of our work, and all work in this area, is that it neglects one of the most\nimportant aspects of review: the lower court\xe2\x80\x99s opinion. While scholars can typically identify the\ndirection of a lower court\xe2\x80\x99s opinion, they understand very little about its content. Can judges write\nopinions in a way that insulates them from review\xe2\x80\x94the same way Supreme Court justices write\nopinions to avoid congressional interference (Owens, Wedeking and Wohlfarth 2013)? Anecdotal\nevidence suggests the justices do not worry about review (Songer, Sheehan and Haire 2000), but\nother work suggests judges care about their standing in the profession and with their peers (Baum\n2010) and therefore should seek to avoid review and consequent embarrassment. Future work\nshould address the content of the lower court\xe2\x80\x99s opinion, if judges are writing in a way that avoids\nreview, and if the justices understand the signal.\nThe Supreme Court agenda-setting process is one of the most interesting and least understood\nparts of the Court\xe2\x80\x99s overarching process. As Clarence Thomas once explained, many people think\nthey have a right to present their cases to the justices (C-SPAN 2010), and people do threaten\nearly on to fight their case \xe2\x80\x9call the way to the Supreme Court,\xe2\x80\x9d as the National Collegiate Athletic\nAssociation (NCAA) did in 2013 when former basketball players filed a class-action lawsuit against\nthem for using their likenesses in video games (Le 2013). But as the NCAA discovered in 2016,\nSupreme Court justices decide which cases they want to hear, and most cases end before ever\nreaching the justices\xe2\x80\x99 ears. Society has high expectations for the Court\xe2\x80\x99s capacity to hear cases, but\nin reality, the justices are incredibly selective about the cases that actually end up on their docket.\nBecause the justices make these decisions in private, they do little to help the public understand\nthis process. Thankfully, archival research and data analysis like those employed in this chapter\ncan help unwrap this mystery and provide context for when the justices might agree to hear\ncertain cases.\nSo why are amicus briefs so worthy of study? Because they offer external groups the chance to\ninfluence a uniquely insular process. Supreme Court cases involve a surprisingly limited number\nof people\xe2\x80\x94the parties to the case, their attorneys, and the nine justices\xe2\x80\x94and the justices make\ntheir decisions based on the specifics of the case. But those specifics lead to opinions, and those\nopinions contain legal reasonings that apply to everyone, not just the parties involved (Clark\nand Lauderdale 2010; Hansford and Spriggs 2006). When Barbara Grutter sued the University\nof Michigan, she sued to get herself admitted to the school. But when the Court announced its\ndecision in Grutter v. Bollinger (2003), the decision impacted the millions of students applying to\ncollege each year too. Understandably, then, outside interests want their needs considered when\nthe justices hear a case. Of course, interest groups cannot voice their needs if they do not have\na case in which to do it. We study amicus briefs submitted at the agenda-setting stage because\nthey show that external interests can (and do) influence the Supreme Court\xe2\x80\x99s processes too, right\ndown to which cases the justices decide to hear in the first place. True, the parties certainly have\ntheir reasons for wanting the justices to hear a case, but noting that outside interests do as well is\nimportant for understanding how the Court goes about its work.\n424 | Judicial Discretion and US Supreme Court Agenda Setting\n\n\x0cJudicial Discretion and US Supreme Court Agenda Setting | 425\n\n\x0cAppendix\nVariable\nConflict Alleged\n\nWeak Conflict\n\nStrong Conflict\n\nU.S. Supports\n\nAppellate Reversal\n\nAppellate Dissent\n\nLaw Unconstitutional\n\nEn Banc Panel\n\nAppellate Unpublished\n\nU.S. Law Week Coverage\n\nIdeological Congruence\n\nPetitioner Amicus Briefs\n\nCoefficient Standard Error\n0.061\n(0.240)\n0.313\n(0.211)\n1.251**\n(0.204)\n0.782**\n(0.230)\n0.477**\n(0.166)\n0.218\n(0.204)\n0.896**\n(0.373)\n0.061\n(0.344)\n-0.599\n(0.409)\n0.160\n(0.173)\n0.862\n(0.576)\n0.162*\n(0.090)\n\nLog Likelihood\n\n-166.90\n\nPseudo R2\n\n0.27\n\nBIC\n\n422.08\n\n426 | Judicial Discretion and US Supreme Court Agenda Setting\n\n\x0cTable 2: Probit Estimates of the Court\'s Decision to Grant Review\nN=360. 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(\xe2\x86\xb5 Return)\nHansford, Thomas G., and James F. Spriggs. 2006. The Politics of Precedent on the U.S. Supreme\nCourt. Princeton: Princeton University Press. (\xe2\x86\xb5 Return)\nLane, Elizabeth A., and Ryan C. Black. 2017. Agenda Setting and Case Selection on the U.S. Supreme\nCourt. Oxford Research Encyclopedia of Politics Oxford University Press. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return\n2) (\xe2\x86\xb5 Return 3) (\xe2\x86\xb5 Return 4) (\xe2\x86\xb5 Return 5)\nJudicial Discretion and US Supreme Court Agenda Setting | 429\n\n\x0cLe, Nam. 2013. \xe2\x80\x9cNCAA to Fight Ed O\xe2\x80\x99Bannon Suit \xe2\x80\x98All the Way to the Supreme Court\xe2\x80\x99.\xe2\x80\x9d SB Nation.\nhttps://bit.ly/2WDld5t (\xe2\x86\xb5 Return)\nLong, J. Scott. 1997. Regression Models for Categorical and Limited Dependent Variables: Advanced\nQuantitative Techniques in the Social Sciences. Thousand Oaks: Sage. (\xe2\x86\xb5 Return)\nLong, J. Scott, and Jeremy Freese. 2006. Regression Models for Categorical Dependent Variables\nUsing Stata. 2nd ed. College Station, TX: Stata Press. (\xe2\x86\xb5 Return)\nMauro, Tony. 2016. \xe2\x80\x9cJustices Need to Show Us Their Papers.\xe2\x80\x9d USA Today Online. https://usat.ly/\n2pCa70H (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nMauro, Tony. 2018. \xe2\x80\x9cUnlike Gorsuch, Kavanaugh Jumps Into SCOTUS Cert Pool.\xe2\x80\x9d The National Law\nJournal. https://bit.ly/2ARhCr9 (\xe2\x86\xb5 Return)\nMorfin, Otoniel Jimenez, Victor H. Perez, Laurence Parker, Marvin Lynn, and John Arrona. 2006.\n\xe2\x80\x9cHiding the Politically Obvious: A Critical Race Theory Preview of Diversity as Racial Neutrality\nin Higher Education.\xe2\x80\x9d Educational Policy 20 (1):249\xe2\x80\x93270. (\xe2\x86\xb5 Return)\nO\xe2\x80\x99Brien, David M. 1997. \xe2\x80\x9cJoin-3 Votes, the Rule of Four, the Cert. Pool, and the Supreme Court\xe2\x80\x99s\nShrinking Plenary Docket.\xe2\x80\x9d Journal of Law and Politics 13:779\xe2\x80\x93808. (\xe2\x86\xb5 Return)\nOwens, Ryan J., and David A. Simon. 2011. \xe2\x80\x9cExplaining the Supreme Court\xe2\x80\x99s Shrinking Docket.\xe2\x80\x9d\nWilliam & Mary Law Review 53 (4):1219\xe2\x80\x931285. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nOwens, Ryan J., Justin Wedeking, and Patrick C. Wohlfarth. 2013. \xe2\x80\x9cHow the Supreme Court Alters\nOpinion Language to Evade Congressional Review.\xe2\x80\x9d Journal of Law and Courts 1 (1):35\xe2\x80\x9359. (\xe2\x86\xb5\nReturn)\nPerry, Barbara A. 2007. The Michigan Affirmative Action Cases. Lawrence: University of Kansas\nPress. (\xe2\x86\xb5 Return)\nPerry, H.W. 1991. Deciding to Decide: Agenda Setting in the United States Supreme Court. Cambridge:\nHarvard University Press. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3) (\xe2\x86\xb5 Return 4) (\xe2\x86\xb5 Return 5) (\xe2\x86\xb5\nReturn 6) (\xe2\x86\xb5 Return 7) (\xe2\x86\xb5 Return 8) (\xe2\x86\xb5 Return 9) (\xe2\x86\xb5 Return 10) (\xe2\x86\xb5 Return 11) (\xe2\x86\xb5 Return 12) (\xe2\x86\xb5 Return\n13)\nSchoenherr, Jessica A., and Ryan C. Black. 2019. \xe2\x80\x9cFriends with Benefits: Case Significance, Amicus\nCuriae, and Agenda Setting on the US Supreme Court.\xe2\x80\x9d International Review of Law and\nEconomics 58:43\xe2\x80\x9353. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3) (\xe2\x86\xb5 Return 4)\nSolberg, Rorie Spill, and Eric N. Waltenberg. 2006. \xe2\x80\x9cWhy Do Interest Groups Engage the Judiciary?\nPolicy Wishes and Structural Needs.\xe2\x80\x9d Social Science Quarterly 87 (3):558\xe2\x80\x93570. (\xe2\x86\xb5 Return)\n430 | Judicial Discretion and US Supreme Court Agenda Setting\n\n\x0cSonger, Donald R., Reginald S. Sheehan, and Susan B. Haire. 2000. Continuity and Change on the\nUnited States Courts of Appeals. Ann Arbor: University of Michigan Press. (\xe2\x86\xb5 Return)\nSpaeth, Harold J., Lee Epstein, Andrew D. Martin, Jeffrey A. Segal, Theodore J. Ruger, and Sara C.\nBenesh. 2018. \xe2\x80\x9c2018 Supreme Court Database.\xe2\x80\x9d Version 2018 Release 01. (\xe2\x86\xb5 Return)\nStern, Robert L., Eugene Gressman, Stephen M. Shapiro, and Kenneth S. Geller. 2002. Supreme\nCourt Practice. 8th ed. Washington, DC: Bureau of National Affairs, Inc. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nSternberg, Jonathan. 2008. \xe2\x80\x9cDeciding Not to Decide: The Judiciary Act of 1925 and the\nDiscretionary Court.\xe2\x80\x9d Journal of Supreme Court History 33 (1):1\xe2\x80\x9316. (\xe2\x86\xb5 Return)\nStevens, John Paul. 1983. \xe2\x80\x9cThe Lifespan of a Judge-Made Rule.\xe2\x80\x9d New York University Law Review\n58:1-21. (\xe2\x86\xb5 Return)\nStras, David R. 2010. \xe2\x80\x9cThe Supreme Court\xe2\x80\x99s Declining Plenary Docket: A Membership-Based\nExplanation.\xe2\x80\x9d Constitutional Commentary 27:151\xe2\x80\x93161. (\xe2\x86\xb5 Return)\nTanenhaus, Joseph, Marvin Schick, Matthew Muraskin, and Daniel Rosen. 1963. \xe2\x80\x9cThe Supreme\nCourt\xe2\x80\x99s Certiorari Jurisdiction: Cue theory.\xe2\x80\x9d In Judicial Decision-Making, ed. Glendon Shubert.\nGlencoe: The Free Press. (\xe2\x86\xb5 Return)\nThompson, David C., and Melanie Wachtell. 2009. \xe2\x80\x9cAn Empirical Analysis of Supreme Court\nCertiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor\nGeneral.\xe2\x80\x9d George Mason Law Review 16 (2):237\xe2\x80\x93302. (\xe2\x86\xb5 Return)\nToobin, Jeffrey. 2008. The Nine: Inside the Secret World of the Supreme Court. Anchor Books. (\xe2\x86\xb5\nReturn)\nUlmer, S. Sidney. 1984. \xe2\x80\x9cThe Supreme Court\xe2\x80\x99s Certiorari Decisions: Conflict as a Predictive\nVariable.\xe2\x80\x9d American Political Science Review 78 (4):901\xe2\x80\x93911. (\xe2\x86\xb5 Return)\nWard, Artemus, and David L. Weiden. 2006. Sorcercers\xe2\x80\x99 Apprentices: 100 Years of Law Clerks at the\nUnited States Supreme Court. New York: New York University Press. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nWatts, Kathryn A. 2013. \xe2\x80\x9cJudges and their Papers.\xe2\x80\x9d New York University Law Review 88:1665\xe2\x80\x931734.\n(\xe2\x86\xb5 Return)\nWohlfarth, Patrick C. 2009. \xe2\x80\x9cThe Tenth Justice? Consequences of Politicization in the Solicitor\nGeneral\xe2\x80\x99s Office.\xe2\x80\x9d Journal of Politics 71 (1):224\xe2\x80\x93237. (\xe2\x86\xb5 Return)\nWoodward, Bob, and Scott Armstrong. 1979. The Brethren: Inside the Supreme Court. New York:\nSimon and Schuster. (\xe2\x86\xb5 Return)\nJudicial Discretion and US Supreme Court Agenda Setting | 431\n\n\x0cZorn, Christopher J. W. 2002. \xe2\x80\x9cU.S. Government Litigation Strategies in the Federal Appellate\nCourts.\xe2\x80\x9d Political Research Quarterly 55 (1):145\xe2\x80\x93166. (\xe2\x86\xb5 Return)\n\nClass Activity\nAgenda-Setting Simulation\n\nWriting Assignment\n\xe2\x80\xa2 Using twelve-point font and double spacing, your paper should be three to four pages long. It should\nbe well written using appropriate grammar and correct spelling. You must produce a works cited page\nthat conforms to the APSA Style Manual for Political Science: https://connect.apsanet.org/\nstylemanual/wp-content/uploads/sites/43/2018/11/Style-Manual-for-Political-Science-2018.pdf.\nThis includes using in-text parenthetical citations! You must cite the source where you\xe2\x80\x99ve found your\ninformation, whether you are using quotation marks to indicate a direct quote or paraphrasing\nsomeone else\xe2\x80\x99s argument. If you have any questions about plagiarism, see your instructor before the\nassignment is due because any academic honesty violation will result in an automatic zero.\n\xe2\x80\xa2 This does not need to adhere to a typical essay structure. You will not need to include an introduction\nor conclusion. Your paper should be divided into four primary sections (for consistency, use the\nheadings in bold in your paper):\n\xe2\x97\xa6 Biographical background: This will be the shortest section of your paper that highlights where the\njustice is from and any other information that you deem relevant (e.g., religious affiliation or marital\nstatus).\n\xe2\x97\xa6 Legal background: In this section, you are to highlight relevant work experience. Where did he or she get\nher law degree? What was he or she doing before becoming a justice? What year did he or she join the\nCourt? What president nominated the justice and what was the Senate confirmation like?\n\xe2\x97\xa6 General approach to the decision-making: This is the meat of the assignment and will likely be longer\nthan the preceding sections. Your description should include some direct quotations from the justice\xe2\x80\x99s\nown writings, on and/or off the bench. Your critical evaluation should include some comparative\nreferences\xe2\x80\x94that is, some discussion of how your justice\xe2\x80\x99s understanding of the Court\xe2\x80\x99s role differs from\nthe understanding of some other justices.\n\n432 | Judicial Discretion and US Supreme Court Agenda Setting\n\n\x0c\xe2\x81\x83\n\nCheck out this list of speeches by a number of the justices available here:\n\nhttp://www.supremecourt.gov/publicinfo/speeches/speeches.aspx\n\xe2\x81\x83\n\nAnd this handy tool for finding opinions written by particular justices: http://www.law.cornell.edu/\n\nsupct/justices/opinions.html\n\xe2\x81\x83\n\nAnd this site, which compiles materials on recent nomination hearings for the justices:\n\nhttp://www.loc.gov/law/find/court-confirmed.php\n\xe2\x81\x83\n\nSome questions you might consider in this section: Does the justice favor judicial restraint or is he or\n\nshe an activist? (You will encounter these things in your research, so a good scholar would make sure to\ndefine what this means.) Does a justice prefer deference to majoritarian political institutions or is he or she\nmore inclined to protect minority rights? Does the justice adhere to the original intent of the framers or\ndoes he or she view the Constitution as a living document that must change with the times? How closely\ndoes the justice follow precedent?\n\xe2\x97\xa6 Ideological predisposition: This ties in directly with the analysis in the preceding section. That is, in the\nprevious section, you discuss how a justice claims to make decisions, while in this section, you assess\nwhether the justice is observationally a political conservative, liberal, or moderate justice on the Court. In\nother words, how does a justice\xe2\x80\x99s voting behavior tie into his or her judicial philosophy? Is this justice\xe2\x80\x99s\nvote consistent with the president that nominated him or her, or were there surprises in the justice\xe2\x80\x99s\nbehavior after he or she joined the bench? Who are your justice\xe2\x80\x99s most usual allies on the Court?\nIn Class\n\xe2\x80\xa2 To get credit, you must be in class.\n\xe2\x80\xa2 The class will be divided into five separate Supreme Courts that correspond to the group number on\nthe assignment sheet.\n\xe2\x80\xa2 At the start of class\xe2\x80\x94roughly the first fifteen to twenty minutes\xe2\x80\x94you will have an opportunity to tell\nthe rest of your \xe2\x80\x9cCourt\xe2\x80\x9d about the justice you are assigned to play. You should be prepared to highlight\nthe most important information.\n\xe2\x80\xa2 Next, you will be given a stack of writs of certiorari to review. Your job will be to (1) determine whether\nit\xe2\x80\x99s in the best interest of the justice to grant review in the case, (2) convince the other justices of your\nposition, (3) listen to the views of your colleagues, and finally, (4) vote on the treatment of the cert\npetition.\nStudent name: ____________________________________\nJustice name: _____________________________________\nAgenda-Setting Simulation\n*Materials from summaries and analyses are available on SCOTUSblog.com and directly from actual writs of\ncertiorari and response briefs.\nInstructions for Class Activity\n1. Divide into your assigned Supreme Courts.\n2. Spend no more than fifteen minutes introducing your assigned justice to the other members of the\nCourt. It would be helpful if you sat in a circle in descending order of seniority, clockwise from the\nChief Justice\xe2\x80\x99s left: Chief Justice Roberts followed by Justices Thomas, Ginsburg, Breyer, Alito,\n\nJudicial Discretion and US Supreme Court Agenda Setting | 433\n\n\x0cSotomayor, Kagan, Gorsuch, and Kavanaugh. You might wish to also make a name tag to help your\ncolleagues remember who you are.\n3. Take a quick look at the structure of this cert petition packet to familiarize yourself with its layout.\n4. Each case contains a brief statement of facts, the basic arguments of the parties, the holding of the\nlower courts where applicable, and the questions/issues before the Supreme Court.\n5. Each case is followed by a docket sheet, where you will note your vote selections. In the \xe2\x80\x9cDefer\xe2\x80\x9d\ncategory, you may elect to \xe2\x80\x9cRelist\xe2\x80\x9d the case, which functionally holds the case for another discussion,\nor you may CVSG, which is calling for the views of the Solicitor General when you think the federal\ngovernment should weigh in. In the \xe2\x80\x9cCert.\xe2\x80\x9d category, you could choose to grant (G), deny (D), or grant,\nvacate, and remand (GVR).\n6. It is on this docket sheet that each one of you should record the vote selections for every member of\nyour Court. Beneath the table, there is space for you to justify your own vote choice. That is, you are\njustifying the Court\xe2\x80\x99s decision, but you are explaining why you / your justice voted the way you did.\n7. Before you vote and write your justification, discussion should proceed as follows:\n8. Everyone should read the very short case summary / cert petition.\n9. The chief justice should then ask if everyone understands the basics of the case. At this point, you are\nfunctioning not as justices but as student colleagues, so puzzle through any questions that arise\ntogether.\n10. Then you should discuss the case. At the Supreme Court, this happens in descending order of\nseniority, and you might wish to loosely follow that structure here. Each of you should talk in every\ncase. As you\xe2\x80\x99re debating, consider the following: what your justice would sincerely want the outcome\nof this case to be, whether your justice is likely to prevail on the merits, and if the case satisfies Rule\n10 and presents a legal conflict or an important unsettled question of law. Your job should be to\nconvince your colleagues of your viewpoint.\n11. Once discussion is concluded, take a formal vote in descending order of seniority. Then write a couple\nof sentences about why you voted the way you did, noting whether it was a sincere or strategic choice\nand why.\n12. On the bottom of the page, determine as a group what happened to your case. Was it granted?\nDenied? Something else?\n13. Write your name and that of your justice on the front of this packet and submit the entire thing at the\nend of class.\n\nBlagojevich v. United States\nDocket no.: 17-658\nLower court: Seventh Circuit\nBasic Facts / Relevant Precedent\nPetitioner Rod Blagojevich was convicted of eighteen crimes, including corruption and fraud, all committed\nwhile he was the governor of Illinois. The district court sentenced him to 168 months\xe2\x80\x99 (fourteen years)\n\n434 | Judicial Discretion and US Supreme Court Agenda Setting\n\n\x0cimprisonment. Blagojevich appealed his sentence to the circuit court on the grounds that (1) the sentence\nwas excessive for the crimes committed (i.e., there were no violent offenses, and Blagojevich contends that\nhe will be meaningfully rehabilitated in less time) and, more importantly, (2) the government did not prove\nthat the defendant made an explicit promise in exchange for a campaign contribution.\nThe circuit court first remanded the case back to the district court to ask them to consider whether the\nsentence was appropriate. The district court reaffirmed the initial sentence, and Blagojevich went back to\nthe circuit court. This time, the circuit court upheld the lower court\xe2\x80\x99s sentence and took up the burden of\nproof question. The Seventh Circuit Court of Appeals used the precedent set in McCormick v. United States\n(1991) and joined two other circuits to require \xe2\x80\x9conly . . . that a public official has obtained a payment . . .\nknowing that [it] was made in return for official acts\xe2\x80\x9d rather than siding with five circuits that use the\nprecedent set in Evans v. United States (1992), which holds that the government must prove the defendant\nmade an \xe2\x80\x9cexplicit promise or undertaking\xe2\x80\x9d in exchange for the contribution.\nPetitioner\xe2\x80\x99s Main Arguments\nThe precedent set in Evans, which is a newer and more relevant case, should control in government\ncorruption cases, as the preponderance of circuits hold. The government failed to reach that exacting\nburden of proof. Additionally, there is a clear circuit split that only the Supreme Court can reconcile.\nJustice demands that like cases are treated alike. A sentence of fourteen years for nonviolent crimes is\ninconsistent with nationwide trends for white-collar and/or political crimes. Only two circuits\xe2\x80\x94the seventh\nand the tenth\xe2\x80\x94decline to hear defendants\xe2\x80\x99 requests for lesser sentences to avoid \xe2\x80\x9cunwarranted sentence\ndisparities.\xe2\x80\x9d\nRespondent\xe2\x80\x99s Main Arguments\nThere is valid precedent (see McCormick) to use a lower burden of proof when there is evidence that a\npublic official abused his or her power in office. The sentence does not exceed federal sentencing\nguidelines, and there is no official law that requires any court to conform to national sentencing trends, so\nit is within the court\xe2\x80\x99s power to decline the defendant\xe2\x80\x99s request to consider whether there\xe2\x80\x99s a sentencing\ndisparity.\nIssues before the Supreme Court\n1. Clarify whether McCormick or Evans is controlling precedent in corruption cases. In particular, what\nburden of proof does the government bear? Does it need to prove that the public official explicitly\ntraded political favors for a campaign contribution, or is it sufficient that the public official knows that\nthe donation was made in expectation of favorable political treatment?\n2. Can a district court decline to address a defendant\xe2\x80\x99s nonfrivolous argument that a shorter sentence is\nnecessary to avoid \xe2\x80\x9cunwarranted sentence disparities\xe2\x80\x9d for crimes of a similar nature?\nProcedural History\nThe Seventh Circuit Court of Appeals sided with the government and against Blagojevich twice.\n\nBlagojevich v. United States\n\nJudicial Discretion and US Supreme Court Agenda Setting | 435\n\n\x0cDefer Cert.\nRelist CVSG G D GVR\nRoberts, Ch. J.\nThomas, J.\nGinsburg, J.\nBreyer, J.\nAlito, J.\nSotomayor, J.\nKagan, J.\nGorsuch, J.\nKavanaugh, J.\n\nJustification for vote choice:\nCert petition outcome: _______________________________________\nCarpenter v. United States\nDocket no.: 16-402\nLower court: Sixth Circuit\nBasic Facts / Relevant Precedent\nIn United States v. Miller (1976), the Supreme Court ruled that bank records of a man accused of running an\nillegal whiskey-distilling operation were not obtained in violation of the Fourth Amendment even though\nlaw enforcement officials did not have a warrant because the bank records contained \xe2\x80\x9conly information\nvoluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.\xe2\x80\x9d Three\nyears later, in Smith v. Maryland, the justices ruled that no Fourth Amendment violation had occurred when,\nwithout a warrant and at the request of the police, the phone company installed a device to record all the\nphone numbers that a robbery suspect called from his home, leading to his arrest.\nThese cases are cited as examples of the \xe2\x80\x9cthird-party doctrine\xe2\x80\x9d\xe2\x80\x94the idea that the Fourth Amendment does\nnot protect records or information that someone voluntarily shares with someone or something else. But\ndoes the third-party doctrine apply the same way to cell phones, which became commercially available after\nthose precedents were set?\nTimothy Carpenter was accused of being the mastermind behind a series of armed robberies in Ohio and\nMichigan. Law enforcement officials asked cell phone providers for Carpenter\xe2\x80\x99s phone records, relying on\nthe Stored Communications Act of 1986, which allows phone companies to disclose records when the\ngovernment provides reasonable cause to believe that the phone has been used to commit a crime. Using\nseveral months of phone records, investigators linked Carpenter\xe2\x80\x99s cell to towers in the vicinity of the\nrobberies.\nAt his trial, Carpenter argued that the police should have obtained a warrant for his phone records because\nhe had a reasonable expectation of privacy. Therefore, those records should not be admitted as evidence.\nThe district court disagreed and allowed the phone records to serve as key evidence in the trial, which\n\n436 | Judicial Discretion and US Supreme Court Agenda Setting\n\n\x0cultimately resulted in a conviction of 116 years in prison. Carpenter appealed to the Sixth Circuit Court,\nwhere he lost.\nPetitioner\xe2\x80\x99s Main Arguments\nOn appeal to the Supreme Court, Carpenter is supported by various privacy interest group amicus curiae\nbriefs, and all contend that the old rules are outdated for this technological age. In particular, people carry\ntheir cell phones everywhere, including in the home, where the Court has consistently ruled that people\nhave a reasonable expectation of privacy. The data about a person\xe2\x80\x99s whereabouts are not voluntarily given,\nthe petitioner argues, because it happens automatically whenever the phone is turned on.\nRespondent\xe2\x80\x99s Main Arguments\nThe government argues that the old rules apply no matter the technological innovation. There\xe2\x80\x99s precedent\nand statutory law to support the lower court\xe2\x80\x99s treatment of evidence obtained without a warrant, and there\nis no Fourth Amendment violation.\nIssue before the Supreme Court\n1. Does the warrantless search and seizure of historical cell phone records, revealing the location and\nmovements of a cell phone user over the course of 127 days, violate the Fourth Amendment?\nProcedural History\nBoth the district and circuit courts relied on the \xe2\x80\x9cthird-party doctrine\xe2\x80\x9d and the Stored Communications Act\nto conclude that the search was legal and did not require a warrant.\n\nCarpenter v. United States\nDefer Cert.\nRelist CVSG G D GVR\nRoberts, Ch. J.\nThomas, J.\nGinsburg, J.\nBreyer, J.\nAlito, J.\nSotomayor, J.\nKagan, J.\nGorsuch, J.\nKavanaugh, J.\n\nJustification for vote choice:\nCert petition outcome: _______________________________________\n\nJudicial Discretion and US Supreme Court Agenda Setting | 437\n\n\x0cMissouri et al. v. California\nDocket no.: 220148\nOriginal jurisdiction of the US Supreme Court\nBasic Facts / Relevant Precedent\nTogether with twelve other states, Missouri is suing the state of California over regulations on the treatment\nof farm animals. In this case, Missouri contends that California imposes stricter regulations on the\ntreatment of chickens than federal law requires, which in turn has the effect of inflating \xe2\x80\x9cegg prices for\nevery egg consumer in the nation.\xe2\x80\x9d California\xe2\x80\x99s law requires that farms raising egg-laying hens must ensure\nthat the chickens are able to move around freely. California counters that its law impacts only farms and\neggs sold within the state\xe2\x80\x99s borders and should not have an impact on chickens in Missouri or anywhere else\nin the nation. Missouri and the other states argue that California doesn\xe2\x80\x99t exist in a vacuum, and when the\nprice of eggs goes up in California, the price goes up throughout the rest of the country. Additionally,\nCalifornia sends inspectors to other states if farmers sell their eggs in California, which the petitioners\ncontend violates state sovereignty.\nThis is similar to a second case on appeal to the Supreme Court, Indiana v. Massachusetts, where another\ngroup of thirteen states (not identical to the first group of state plaintiffs in the first case) challenges a\nMassachusetts law that imposes similar restrictions by barring sales within that state of eggs, pork, and veal\nfrom animals that were \xe2\x80\x9cconfined in a cruel manner.\xe2\x80\x9d Like California, Massachusetts argues that its law\napplies only to sales within the state\xe2\x80\x99s geographical territory and therefore does not violate any federal laws\nor the US Constitution.\nIn both the Missouri and Indiana cases, the petitioners are filing suit directly with the Supreme Court under\nits original jurisdiction (because remember, when one [or more] state sues another, the Supreme Court acts\nas a trial court). California argues that Missouri should sue in a federal district court, but the respondents\nfail to identify what district court would have jurisdiction over such an interstate dispute. Missouri goes a\nstep further to argue that the Supreme Court must take the case because the Constitution doesn\xe2\x80\x99t specify\nthat the Court has discretion over such cases (and that there is an absence of federal law giving the Court\ndiscretion over its original jurisdiction, unlike the Supreme Court Case Selection Act of 1988, which gives\nthe Supreme Court almost unlimited discretion over its appellate jurisdiction).\nThe petitioners assert that the California and Massachusetts laws violate the Commerce Clause of the\nConstitution, which gives Congress the exclusive authority to regulate interstate commerce. Because these\nfarm restrictions trigger higher prices everywhere, the plaintiffs argue, California and Massachusetts are\nunfairly impeding interstate commerce.\nIssues before the Supreme Court\n1. Does this case fall under the Supreme Court\xe2\x80\x99s original jurisdiction?\n2. Does the Supreme Court have discretion to opt out of hearing cases filed under its original\njurisdiction?\n3. Does California\xe2\x80\x99s (and Massachusetts\xe2\x80\x99s) law regulating the treatment and sale of farm animals and their\nproducts violate the Commerce Clause of the US Constitution?\n\n438 | Judicial Discretion and US Supreme Court Agenda Setting\n\n\x0cMissouri et al. v. California\nDefer Cert.\nRelist CVSG G D GVR\nRoberts, Ch. J.\nThomas, J.\nGinsburg, J.\nBreyer, J.\nAlito, J.\nSotomayor, J.\nKagan, J.\nGorsuch, J.\nKavanaugh, J.\n\nJustification for vote choice:\nCert petition outcome: _______________________________________\nAzar v. Garza\nDocket no.: 17-654\nLower court: DC Circuit\nBasic Facts / Relevant Precedent\nA seventeen-year-old pregnant woman was caught at the US-Mexico border trying to enter the United\nStates illegally. She was held in a detention facility where she had a medical exam that confirmed she was\npregnant. \xe2\x80\x9cJane Doe\xe2\x80\x9d tried to schedule an abortion, but the Trump administration blocked her request,\nwhich prompted a lawsuit in federal court.\nOn appeal to the US Court of Appeals for the District of Columbia, which had jurisdiction in this case, on\nOctober 24, a full panel of judges cleared the way for Doe to obtain an abortion. The circuit court remanded\nthe case to the district court, where the judge declared that Doe should be allowed to have an abortion\n\xe2\x80\x9cpromptly and without delay.\xe2\x80\x9d Doe\xe2\x80\x99s abortion was scheduled for October 26 after receiving counseling on\nOctober 25; pursuant to Texas law, she had undergone one counseling session on October 19.\nThe Trump administration, represented by Solicitor General Noel Francisco, planned to submit a petition to\nthe Supreme Court to ask the Court to issue a hold to delay Doe\xe2\x80\x99s abortion until the Court could hear\narguments in the case. Rather than give the federal government time to file a writ of certiorari, Doe and her\nlegal team changed her abortion appointment to October 25 without informing the federal government of\ntheir plans. The solicitor general filed suit at the Supreme Court on October 26.\nPetitioner\xe2\x80\x99s Main Arguments\nThe petitioner in this case is the Trump administration, presented by the office of the solicitor general.\nThey are asking the Supreme Court to vacate the DC circuit\xe2\x80\x99s decision so that it does not set precedent\neven within that specific circuit. In particular, the petitioners argue that the federal government has a\nvested interest to avoid facilitating abortions. The government asked the Supreme Court to do two things:\n\nJudicial Discretion and US Supreme Court Agenda Setting | 439\n\n\x0cFirst, it urged the justices to vacate the DC circuit\xe2\x80\x99s ruling in favor of Jane Doe and to instruct the DC circuit\nto send the case back to a federal trial court, where that district court would have to dismiss the claims\nrelating to \xe2\x80\x9cthe government\xe2\x80\x99s treatment of a pregnant unaccompanied minor\xe2\x80\x9d because Jane Doe is no longer\npregnant. That is the correct answer, contends the petitioner, because the government\xe2\x80\x99s efforts to appeal\nthe DC circuit\xe2\x80\x99s decision became moot as a result of the conduct of Doe\xe2\x80\x99s lawyers.\nSecond, the government suggested that the Supreme Court could take the additional step to \xe2\x80\x9cdiscipline\xe2\x80\x9d\nDoe\xe2\x80\x99s attorneys for misleading the federal government about when Doe would obtain an abortion, which led\nto the delay in the filing of their cert petition so that there was no chance for the federal government to\nblock the abortion.\nRespondent\xe2\x80\x99s Main Arguments\nDoe is represented by the American Civil Liberties Union (ACLU), and her lawyers argue that their job was to\n\xe2\x80\x9csee that she wasn\xe2\x80\x99t delayed any further . . . [and they] acted in the best interest of [their] client in full\ncompliance with court orders and federal and Texas law. That the government lawyers failed to seek judicial\nreview quickly enough is their fault, not ours.\xe2\x80\x9d\nIssues before the Supreme Court\n1. Since Doe is no longer a pregnant illegal alien, should this case be dismissed as moot and the lower\ncourt\xe2\x80\x99s decision thereby vacated?\n2. Did Doe\xe2\x80\x99s attorneys have a legal duty to inform the federal government when the abortion was to\noccur? Given their failure to do so, should the ACLU be subject to disciplinary action?\nProcedural History\nThe DC Circuit and the district court on remand sided with Doe and held that illegal immigrants (including\nminors) were entitled to constitutional protection.\n\nAzar v. Garza\n\n440 | Judicial Discretion and US Supreme Court Agenda Setting\n\n\x0cDefer Cert.\nRelist CVSG G D GVR\nRoberts, Ch. J.\nThomas, J.\nGinsburg, J.\nBreyer, J.\nAlito, J.\nSotomayor, J.\nKagan, J.\nGorsuch, J.\nKavanaugh, J.\n\nJustification for vote choice:\nCert petition outcome: _______________________________________\nNational Institute of Family and Life Advocates v. Becerra\nDocket no.: 16-1140\nLower court: Ninth Circuit\nBasic Facts / Relevant Precedent\nIn 2015, California lawmakers enacted the Reproductive Freedom, Accountability, Comprehensive Care, and\nTransparency (FACT) Act. The act responded to concerns that crisis pregnancy centers\xe2\x80\x94nonprofit\norganizations, often affiliated with Christian groups that are opposed to abortion\xe2\x80\x94were posing as fullservice reproductive health clinics and providing pregnant women with inaccurate or misleading\ninformation about their options.\nThe act imposes two different sets of requirements. Nonprofits that are licensed to provide medical services\n(such as pregnancy tests and ultrasound examinations) must post notices to inform their patients that free\nor low-cost abortions are available and provide the telephone number of the state agency that can put the\npatients in touch with providers of those abortions. Centers that are not licensed to provide medical\nservices\xe2\x80\x94but try to support pregnant women by supplying them with diapers and formula, for\nexample\xe2\x80\x94must include disclaimers in their advertisements to make clear, in up to thirteen languages, that\ntheir services do not include medical help. California\xe2\x80\x99s attorney general and local government lawyers can\nsue facilities that don\xe2\x80\x99t comply with the law; the penalty is a $500 fine for the first offense and $1,000 for\nany later violations.\nPetitioner\xe2\x80\x99s Main Arguments\nThe centers are represented by lawyers for the Alliance Defending Freedom, which also played key roles in\n(among others) two recent high-profile cases: Masterpiece Cakeshop v. Colorado Civil Rights Commission,\nthe case of a Colorado man who says that requiring him to create custom cakes for same-sex weddings\nwould violate his religious beliefs, and Zubik v. Burwell, a challenge by religious nonprofits to the\nworkarounds offered to those who objected to the Affordable Care Act\xe2\x80\x99s birth control mandate. They argue\nthat the Ninth Circuit should have used the most stringent test\xe2\x80\x94known as \xe2\x80\x9cstrict scrutiny\xe2\x80\x9d\xe2\x80\x94to review the\n\nJudicial Discretion and US Supreme Court Agenda Setting | 441\n\n\x0cFACT Act\xe2\x80\x99s constitutionality because the law is based on the content of the centers\xe2\x80\x99 speech and\ndiscriminates based on their viewpoint.\nWhen that standard is used, the petitioners contend, the law cannot survive. It places enormous burdens on\nthe centers even though California has not provided any evidence suggesting that the centers are actually\ncausing any harm, and it applies to all pregnancy centers even if they are not doing anything misleading. If\nthe state were truly concerned that pregnant women aren\xe2\x80\x99t getting information about state-funded options,\nthe centers conclude, it could publicize that information itself.\nRespondent\xe2\x80\x99s Main Arguments\nCalifornia counters that the act targets two problems: women who can\xe2\x80\x99t afford medical care aren\xe2\x80\x99t aware of\nthe publicly funded options available to them, and when they go to these centers, they are often confused\nabout whether they are getting care and advice from medical professionals. The notices that the medical\ncenters are required to provide, the state argues, fall \xe2\x80\x9cwell within the First Amendment\xe2\x80\x99s tolerance for the\nregulation of the practice-related speech of licensed professionals.\xe2\x80\x9d And the notices that the unlicensed\ncenters must provide, the state continues, are permissible to prevent confusion about the nature of their\ncare.\nIssue before the Supreme Court\n1. Whether the disclosures required by the FACT Act violate the protections set forth in the free speech\nclause of the First Amendment, applicable to the states through the Fourteenth Amendment.\nProcedural History\nThe district and circuit courts agreed with the state of California and found that the FACT Act did not\nviolate the First Amendment.\n\nNational Institute of Family and Life Advocates v. Becerra\n\n442 | Judicial Discretion and US Supreme Court Agenda Setting\n\n\x0cDefer Cert.\nRelist CVSG G D GVR\nRoberts, Ch. J.\nThomas, J.\nGinsburg, J.\nBreyer, J.\nAlito, J.\nSotomayor, J.\nKagan, J.\nGorsuch, J.\nKavanaugh, J.\n\nJustification for vote choice:\nCert petition outcome: _______________________________________\nEvans v. Mississippi\nDocket no.: 17-7245\nLower court: Mississippi Supreme Court\nBasic Facts / Relevant Precedent\nTimothy Evans is a lifelong alcoholic. Upon release from a state penitentiary for a felony conviction of\ndriving under the influence, Evans moved in with his ex-girlfriend, Wenda Holling. Evans made attempts at\nemployment, but he was an unreliable employee even when working for friends. As a result, he was\nunemployed and relied entirely on Holling for financial support.\nOn New Year\xe2\x80\x99s Day 2010, Evans and Holling got into an argument when Holling said she would no longer\nsubsidize Evans\xe2\x80\x99s drinking problem. Evans strangled Holling to death, concealed her in the trunk of her car,\nand disposed of her body in an isolated place in a neighboring county, where it was discovered weeks later.\nMeanwhile, Evans told Holling\xe2\x80\x99s family that she was on vacation in Florida, but he actually stole Holling\xe2\x80\x99s car\nand drove to Florida himself, where he used her credit cards to purchase gasoline, food, and lodging. Upon\nthe discovery of Holling\xe2\x80\x99s body, police tracked the credit card usage in Florida, found Evans, and arrested\nhim. He confessed to the murder and the theft.\nA unanimous jury convicted him of robbery-based felony capital murder. The prosecution sought the death\npenalty, and the same jury delivered that sentence a couple hours after delivering the guilty plea.\nPetitioner\xe2\x80\x99s Main Arguments\nThe petitioner contends that the sentence is unconstitutional because the fact that Evans \xe2\x80\x9cis sitting on\ndeath row . . . is a product primarily of geographic accident.\xe2\x80\x9d The criminal court that controls where Evans\ncommitted his crime imposes the death penalty at a substantially higher rate than any other court in the\nstate. The petitioner argues that this is evidence that the death penalty is arbitrarily applied within the\nstate; were it not, the death penalty should be proportionately applied across the state for the same types of\ncrimes.\n\nJudicial Discretion and US Supreme Court Agenda Setting | 443\n\n\x0cThe petitioner relies on various Supreme Court precedents to emphasize the historical focus on the\nseriousness of such a sentence. They also provide evidence that there is \xe2\x80\x9cwidespread [national] consensus\nagainst the death penalty,\xe2\x80\x9d pointing to the fact that thirty-one states have either formally or in practice\nabandoned the practice. Moreover, 85 percent of executions in the last five years are concentrated in five\nstates: Texas, Oklahoma, Florida, Missouri, and Georgia. A majority of those are issued in only a handful of\ncounties. All of this, according to the petitioner, suggests that this creates inconsistencies and injustice in\nthe application of the death penalty, which is no longer viable under the Constitution\xe2\x80\x99s Eighth Amendment\nprotections.\nRespondent\xe2\x80\x99s Main Arguments\nThe Supreme Court has current precedent that allows states to determine whether the death penalty is a\npermissible sentence. The state of Mississippi is acting in accordance with established Constitutional law.\nThis is a state\xe2\x80\x99s rights issue. It doesn\xe2\x80\x99t matter, then, how frequently or infrequently the death penalty is\nacross the nation.\nIssue before the Supreme Court\n1. Does the death penalty in and of itself violate the Eighth Amendment\xe2\x80\x99s prohibition of cruel and\nunusual punishment in light of the contemporary standards of decency and the geographic\narbitrariness of its imposition?\nProcedural History\nThe Supreme Court for the State of Mississippi denied a rehearing, affirming the sentence and declining to\nreview the federal question about the constitutionality of the death penalty.\n\nEvans v. Mississippi\n\n444 | Judicial Discretion and US Supreme Court Agenda Setting\n\n\x0cDefer Cert.\nRelist CVSG G D GVR\nRoberts, Ch. J.\nThomas, J.\nGinsburg, J.\nBreyer, J.\nAlito, J.\nSotomayor, J.\nKagan, J.\nGorsuch, J.\nKavanaugh, J.\n\nJustification for vote choice:\nCert petition outcome: _______________________________________\nDassey v. Dittmann\nDocket no.: 17-1172\nLower court: Seventh Circuit\nBasic Facts / Relevant Precedent\nAfter Teresa Halbach disappeared on October 31, 2005, her family called local law enforcement, who quickly\nzeroed in on the Avery Auto Salvage Yard because Steven Avery had contacted Halbach to take photos for\nAuto Trader magazine that very day. Brendan Dassey, the nephew of Steven Avery, was sentenced to life in\nprison after being convicted of rape, murder, and mutilation of Halbach\xe2\x80\x99s corpse based solely on his\nconfession; no physical evidence linked him to those crimes. Dassey was sixteen and borderline\nintellectually disabled when he confessed on videotape. His confession came after four separate two-onone (i.e., two police officers to one defendant) interrogations over a forty-eight-hour period. Throughout\nthe interrogations, Dassey gave many wrong answers about the crimes. The law enforcement officials\nprovided Dassey with the \xe2\x80\x9cright\xe2\x80\x9d answers, assuring him that he would be treated with leniency if he\nconfirmed their statements. Ultimately, Dassey did what they asked: he confessed to serious crimes.\nIn Withrow v. Williams (1993), the Supreme Court determined that whether a defendant\xe2\x80\x99s confession was\nindeed voluntary is based on an evaluation using a totality-of-the-circumstances test. However, not all\ncircumstances are equally important. In particular, the Court has long recognized that juveniles and those\nwith intellectual deficits are at particular risk of confessing involuntarily under the strain of coercive police\ntactics. As a result, in In re Gault (1967) the Court held that \xe2\x80\x9cthe greatest care must be taken to assure that [a\nminor\xe2\x80\x99s confession] was voluntary.\xe2\x80\x9d Similarly, in Colorado v. Connelly (1986), the Court set precedent that\n\xe2\x80\x9cevaluation[s] of [a] juvenile\xe2\x80\x99s age . . . and intelligence\xe2\x80\x9d are required for voluntariness analysis.\nPetitioner\xe2\x80\x99s Main Arguments\nThe Seventh Circuit failed to faithfully implement Supreme Court precedent and did not fully evaluate the\ndefendant\xe2\x80\x99s age or mental limitations. Merely \xe2\x80\x9cnoting\xe2\x80\x9d these characteristics does not constitute a fair\nanalysis. If precedent means anything, the petitioner argues, the Supreme Court should grant Dassey writ of\n\nJudicial Discretion and US Supreme Court Agenda Setting | 445\n\n\x0chabeas corpus, which translates roughly to \xe2\x80\x9cshow me the body.\xe2\x80\x9d In this case, that would mean the Court\nwould declare that the taped confession is involuntary\xe2\x80\x94both because Dassey was a juvenile and because he\nhad a borderline mental disability\xe2\x80\x94and the state would bear the burden of providing other evidence linking\nDassey to the crimes.\nRespondent\xe2\x80\x99s Main Arguments\nSupreme Court precedent sets the standard that confessions are voluntary taking into account the \xe2\x80\x9ctotalityof\xe2\x80\x99-circumstances.\xe2\x80\x9d Some factors would tend to support a finding that Dassey\xe2\x80\x99s confession was not\nvoluntary: his youth, his limited intellectual ability, some suggestions by the interrogators, their broad\nassurances to a vulnerable suspect that honesty would produce leniency, and inconsistencies in Dassey\xe2\x80\x99s\nconfession. Many other factors, however, point toward a finding that it was voluntary. Dassey spoke with\ninterrogators freely after receiving and understanding Miranda warnings and with his mother\xe2\x80\x99s consent. The\ninterrogation took place in a comfortable setting without any physical coercion or intimidation\xe2\x80\x94without\neven raised voices\xe2\x80\x94over a relatively brief period of time. Dassey provided many of the most damning details\nhimself in response to open-ended questions. On a number of occasions, he resisted the interrogators\xe2\x80\x99\nstrong suggestions on particular details. Also the investigators made no specific promises of leniency.\nIssue before the Supreme Court\n1. Did the Wisconsin Court of Appeals unreasonably apply the Supreme Court\xe2\x80\x99s precedent when it held\nthat a confession made by a juvenile with significant intellectual and social limitations was voluntary?\nProcedural History\nThe Wisconsin (state, not federal) Court of Appeals and the Supreme Court of the State of Wisconsin found\nthe confession to be voluntary and affirmed Dassey\xe2\x80\x99s conviction and sentence. A federal district court and a\ndivided three-person panel of judges in the Seventh Circuit concluded that the state courts erred and\ndetermined that Dassey was entitled to a writ of habeas corpus. The Seventh Circuit sat en banc\xe2\x80\x94which\nmeans all the judges on the Seventh Circuit participated\xe2\x80\x94to review the decision. They reversed the federal\ndistrict and circuit courts and deferred to the judgment of the state courts.\n\nDassey v. Dittmann\n\n446 | Judicial Discretion and US Supreme Court Agenda Setting\n\n\x0cDefer Cert.\nRelist CVSG G D GVR\nRoberts, Ch. J.\nThomas, J.\nGinsburg, J.\nBreyer, J.\nAlito, J.\nSotomayor, J.\nKagan, J.\nGorsuch, J.\nKavanaugh, J.\n\nJustification for vote choice:\nCert petition outcome: _______________________________________\n\nJudicial Discretion and US Supreme Court Agenda Setting | 447\n\n\x0c18. An Empirical Examination of the\nBusiness of the Montana Supreme Court\nWILLIAM P. MCLAUCHLAN\n\nThis is a study of the work of one state supreme court. While it cannot be representative of all fifty\nstate courts, examining this court\xe2\x80\x99s work provides insights on various features of the operation\nof state courts. First, the work of this court certainly reflects the judicial business of this state,\nunique though that might be. In a study of state politics, the judicial system must be included,\nand this examination provides an accurate view of the work of that institution. Second, this study\nprovides fodder for comparison with other state courts. Montana\xe2\x80\x99s court is not typical of all state\ncourts, but the findings here perhaps provide a vantage point for examining other state appellate\ncourts. Such comparisons are valuable in understanding the similarities and differences among\n1\n\nstate judicial systems throughout this country.\n\nHere we use empirical data, specifically data from calendar years 2007 and 2017, to examine the\nprocesses the court uses and the nature of its business. This will also explore the results of\nthe court\xe2\x80\x99s work. Examining the work of a court using empirical data provides an accurate and\nsystematic perspective, and this contrasts with treatments that explore individual court decisions\n(or a set of notable cases). This analysis is an analysis of the institution and its work rather than\nfocusing on a specific doctrine, case, or even individual behavior.\nThe Montana Supreme Court heads one of a minority of state court systems, since it operates\n2\n\nwithout an intermediate appellate court located above the state\xe2\x80\x99s trial courts. The most important\n\n1. There are fifty-one judicial systems in this country. That includes the federal judicial system, which\nis by far the most extensively studied. There are some outstanding works on state courts. These\ninclude Tarr & Porter (1988) and Porter & Tarr (1982). There have been other typical examinations of\nstate courts. Some of these focus on a set of substantive decisions by state courts\xe2\x80\x94for example,\nSohn (2012). A good deal of attention has been given to state court elections because of variations in\njudicial selection systems in states. See, for example, Hall (2015) and Hall & Bonneau (2008). Still\nother work on state courts treats comparative actions by those courts in connection with various\nsubstantive decisions and doctrines. See, for example, Brace, Langer & Hall (2000); Berry & Wysong\n(2012); and Lindquist & Pybas (1998). These exemplify categories of research that have been\nconducted on state supreme courts.\n2. At this time, eleven of the fifty state courts have two-tiered systems like Montana\xe2\x80\x99s. See Neubauer\nand Meinhold (2017) at table 4.3.\n448 | An Empirical Examination of the Business of the Montana\nSupreme Court\n\n\x0cconsequence of this feature is that the Montana court must decide all the qualified cases that\nare appealed to it from the state\xe2\x80\x99s trial courts. The court also has some original jurisdiction that\nprovides additional work for it each year. However, the vast bulk of the court\xe2\x80\x99s work involves\nappeals that derive from the lower Montana courts.\nThe current Montana court system originated in the 1972 Montana Constitution. Figure 1 is a\nsimplified diagram of the structure of the Montana judicial system. The constitution created the\n3\n\ncurrent two-plus tiered system. The trial courts of general jurisdiction are district courts. Below\nthese twenty-two districts, there are justice of the peace courts in each county. In addition, by\nstatute or local ordinance, there are various state or local courts of limited jurisdiction. The courts\nof limited jurisdiction deal with the multitude of misdemeanor cases filed in each county. The state\nsupreme court, as provided in the constitution, was composed of a chief justice and four justices.\nThe state legislature added two additional justices to the court so that it is now a seven-member\n4\n\ncourt. That expansion occurred in 1979 as a result of the caseload, or workload, that five justices\nfaced. As explained in section I, the court still operates using various five-justice panels for the\nbulk of its appellate work due to its current workload.\n\nFigure 1. The Organization of the Judicial System in Montana\n\n3. Montana Constitution Art. VII, \xc2\xa73(1).\n4. Montana Code Annotated \xc2\xa73-2-101 (hereafter cited as MCA). The 1979 amendment is \xc2\xa71, Ch. 683, L.\n1979.\nAn Empirical Examination of the Business of the Montana Supreme Court | 449\n\n\x0cThe discussion that follows is divided into sections. Section I contains a description of the\nsupreme court\xe2\x80\x99s decisional processes. Deciding a large number of appeals requires the court to\ndivide its workload into different categories and apply different processes to these categories.\nThese processes, though elaborate, have been devised to accommodate the array of appeals the\ncourt receives and must resolve. Section II outlines the data that were collected and used for this\nanalysis. The section also provides a set of research questions about the court\xe2\x80\x99s operation. The\nthird section is the core of the chapter and presents an empirically based \xe2\x80\x9cpicture\xe2\x80\x9d of the operation\nof the court, the nature of its appellate business, and how it processes that workload. The last\nsection is a set of conclusions that are derived from the analysis. There are several accompanying\n5\n\nappendices.\n\nSupreme Court Processes\nThe Montana Supreme Court considers two sets of cases: appeals from lower Montana courts and\ncases filed under the original jurisdiction of the court. The original jurisdiction of the court relates\nto writs of habeas corpus and to other writs that are authorized by state statute. The original\ncases constitute about 25 percent of the supreme court\xe2\x80\x99s business in 2017. The bulk of the court\xe2\x80\x99s\nbusiness is appealed from lower courts, primarily from the district courts. Those are the trial\ncourts of general, original jurisdiction in the state. The court\xe2\x80\x99s appellate jurisdiction extends to all\ncases in law and equity. The court\xe2\x80\x99s term begins January 1 of each year and extends throughout\n6\n\nthe calendar year, with only one term each year. The supreme court\xe2\x80\x99s authority also extends to\nmanaging the judicial system in the state, setting procedural rules and requirements for court\nprocedures, regulating the practice of law in the state, and setting standards for the professional\nconduct of lawyers and judges.\nThe processes the court follows are contained in its internal operating rules (IORs), first adopted\nin 1995 and amended later. Appeals must be filed within thirty or sixty days of the entry of\njudgment by the lower court. The deadline depends on whether the state (sixty days) or a private\nparty (thirty days) appeals from the lower court. Once the appeal is filed, the supreme court\nclerk distributes the documents to the seven justices, and each case is also assigned to a fivejustice panel. The panels are devised so that each justice participates in a nearly equal portion\nof the court\xe2\x80\x99s work, although which cases any given panel receives depends on the order in\n\n5. These appendices are the codebook for the data and the data. There is also a set of suggestions for\nfuture research on either the Montana Supreme Court or another state high court.\n6. This discussion is based on the Montana Constitution Art. VII and the MCA \xc2\xa73-2-ff.\n450 | An Empirical Examination of the Business of the Montana Supreme Court\n\n\x0cwhich an appeal is filed. The statute creating the additional two justice positions specifies that\n7\n\nall the decisions of the court must be agreed to or supported by a \xe2\x80\x9cmajority of the Court.\xe2\x80\x9d That\nobvious requirement does place certain constraints on what a five-justice panel can decide, since\na majority of seven is four. That means that to decide a case, four of the five justices on the panel\nmust agree. Figure 2 outlines these general features of the court\xe2\x80\x99s decisional process.\n\nFigure 2. Simplified Montana Supreme Court Decision Processes\n\nThe five-justice panel assigned to an appeal presents that appeal at a Tuesday conference of all\n8\n\nseven justices. At that conference, several outcomes can result. First, the case can be dismissed\nas frivolous or remanded to the attorney filing the appeal. A remand seeks a rebriefing because\nthe conference determines that the appeal is insufficiently briefed. Second, if three justices think\nit is warranted, the case is scheduled for oral argument before the full seven-member court.\n\n9\n\nThird, the conference can determine that the appeal only warrants a memorandum opinion\xe2\x80\x94that\nis, the case \xe2\x80\x9cpresents no constitutional issues, no issues of first impression, does not establish\nnew precedent or modify existing precedent, or, in the opinion of the Court, presents a question\n\n7. MCA \xc2\xa73-2-302: \xe2\x80\x9cAny decision must be concurred in by a majority of the justices of the court.\xe2\x80\x9d\n8. Conference will be used throughout this discussion to refer to all seven members of the court.\n9. This process is similar to how the US Supreme Court dockets cases using a rule of four. On the\nMontana Supreme Court, it is a rule of three.\nAn Empirical Examination of the Business of the Montana Supreme Court | 451\n\n\x0ccontrolled by settled law or by the clear application of applicable standards of review.\xe2\x80\x9d\n\n10\n\nThe result\n\nof a memorandum opinion is a decision in the case, but that decision is not useable as precedent\nin future litigation.\nIf an appeal does not warrant oral argument and if four members of the five-justice panel agree,\nthe appeal is decided as \xe2\x80\x9csubmitted on the briefs\xe2\x80\x9d after review by the conference. This decision\ncan be either a memorandum opinion or a full opinion by the panel. If three members of the fivejustice panel agree on the outcome, the appeal is referred to the conference for consideration\nand decision by the full court because, as noted above, the law requires that the court\xe2\x80\x99s decisions\nbe made by a majority of the court, not a majority of the five-justice panel. The conference will\nconsider, usually without oral argument, the issues in such cases and render a decision that\nreflects the judgment of a majority of the seven justices.\nThe decisional attention of the full seven-member court is only given to a subset of appeals. Those\nappeals include (1) appeals that cannot be dealt with by memorandum opinions, (2) those cases\nin which a four-justice majority of the five-justice panels cannot agree, and (3) those cases that\nare scheduled for oral argument. These decisions are usually based on the filings by the appellant\nand the respondent. However, in a few cases, one or more amici curiae (friends of the court)\nsubmit written materials to support the arguments of one of the parties. The formal conduct of\noral arguments is public, conducted either in the courtroom in Helena or in a suitable facility\nelsewhere in the state. However, given the general features of the court\xe2\x80\x99s business, which are\nnoted below, the seven-justice conference or en banc proceedings cannot (and does not) absorb\na majority of the court\xe2\x80\x99s attention. The fact that the court has mandatory appellate jurisdiction\nin all cases means that there are too many appeals for the seven-justice court to be the standard\noperating procedures for the court.\nThis brief outline of decisional processes is enough to generate a variety of descriptive questions\nthat data could be used to answer. These data are the published materials issued by the court in\n2007 and 2017. These two years provide a comparison of the court\xe2\x80\x99s work a decade apart. This\ncomparison might show changes in the nature of the court\xe2\x80\x99s business or changes in the decisions\nof the court. This minimal longitudinal study will outline and perhaps answer the following\nquestions:\n\xe2\x80\xa2 What is the aggregate volume of the court\xe2\x80\x99s appeals?\n\xe2\x80\xa2 Where do these cases come from?\n\xe2\x80\xa2 What kinds of appellants bring the appeals to the court?\n\xe2\x80\xa2 What kinds of cases/questions are appealed?\n\n10. IOR \xc2\xa7I.3.(c)(i). A memorandum opinion is not \xe2\x80\x9ccitable as binding precedent\xe2\x80\x9d; it is published in the\npublic domain and is obviously binding on the parties and the lower court involved in the case.\n452 | An Empirical Examination of the Business of the Montana Supreme Court\n\n\x0c\xe2\x80\xa2 How are those appeals disposed of by the court?\n\xe2\x80\xa2 What was the vote in the decisions?\n\xe2\x80\xa2 Which justices wrote the opinions in the appeals?\n\xe2\x80\xa2 How long does it take the court to render decisions?\n\xe2\x80\xa2 Have there been appreciable changes in any of these metrics during the decade interval?\nWhile these queries are descriptive, we currently do not have good answers to these questions\nfor the Montana Supreme Court. An understanding of the kinds of cases, the kinds of appellants,\nand the kinds of results rendered by the court will illuminate its business. These initial answers\nwill provide ideas about (1) the nature of the court\xe2\x80\x99s work and how the court\xe2\x80\x99s handled its work\nand (2) the kinds of research that might follow from this exploratory examination. For example,\nare different case types processed differently? Do they come from different parts of the state?\nDo different parties win and lose at different rates in the supreme court? Further research always\nderives from even descriptive analysis of the parties (appellants and respondents, the winners and\nlosers on appeals, and the kinds of decisions that are reached by a court).\n\nThe Data\nThe Montana Supreme Court works in calendar-year terms. As a result, this analysis is based on\n11\n\ndata collected from two calendar years\xe2\x80\x942007 and 2017. These two years were selected to provide\na minimal comparison of the court\xe2\x80\x99s work over time and to suggest the more general features of\njudicial business in the state than can be derived from a single year\xe2\x80\x99s work. The selection of 2017\nwas based on that fact that it was the most recent year of complete, available data. The earlier\nyear\xe2\x80\x942007\xe2\x80\x94was selected in large part because it was a full decade earlier. Except for one justice\nwho served during both these years, there was nearly complete turnover in justices between the\ntwo years.\nThe codebook is provided as an appendix and provides an outline of the variables that were\ncollected (around three dozen) and the categories that were developed to sort the data into\n\n11. The data for this study were collected by the author and by a class of undergraduates at the\nUniversity of Montana during fall semester 2018. Time constraints required the development and\nuse of this limited (two-year) data set. Given the number of cases examined and coded for these two\nyears (N = 692), the empirical picture from this analysis present a valid quantitative comparison. It is\noften the case with empirical research that the available data are limited or their collection is short\nof perfect.\nAn Empirical Examination of the Business of the Montana Supreme Court | 453\n\n\x0csubsets. Coding nominal and categorical data requires a good deal of care and a clear\nunderstanding of the range of each variable. There are likely to be differences in the judgment of\npersons who coded parts of the data. The way to reduce those differences, if not eliminate them\naltogether, is to have several people code the same subset of cases and compare the coding. The\ncomparison suggests that most of the variables were coded consistently by everyone. Some of\n12\n\nthe variables, particularly those involving the subject matter of each appeal,\n\nproduced the most\n\nvariation but was still within permissible limits. Other variables were created or calculated from\nthe original data. In some instances, the number of categories defined for a variable was reduced\n13\n\n(or \xe2\x80\x9ccollapsed\xe2\x80\x9d) because they contained a very small set of values. Additionally, collapsing similar\ncategories reduces variability in the coding. A statistical software package was used to provide the\n14\n\ntabulations and other output that are presented below.\n\nThe Supreme Court\xe2\x80\x99s Business\nAn Overview\nThe analysis begins with an exploration of the general pattern of appeals filed with the Montana\nSupreme Court. Table 1 shows the total number of appeals for each of the years examined here.\nThe first notable feature of these data is the number of appeals. It is clear that the court treats a\nsubstantial number of appeals each year\xe2\x80\x94recall that all appeals have to be considered by the court\nin some fashion. It is interesting to compare the two years in terms of the number of appeals.\nThere was about a 150-case decline in the number of appeals between 2007 and 2017. This feature\nalone does not indicate much about the change, but it suggests that in the course of the decade,\nthe volume of business (measured as raw numbers of appeals) has changed (dropped). Whether the\nnature of that work has also changed remains to be seen.\n\n12. Those variables were \xe2\x80\x9csubj\xe2\x80\x9d and \xe2\x80\x9csubmtr.\xe2\x80\x9d Examine the codebook to see how these were categorized.\nIt should be evident that some variation in coding these variables is possible. Variable names are\noften peculiar. Rarely can the name be a full description of the variable. A brief acronym is the usual\nmethod of labeling each variable. As with the two variables identified here, there is a difference in\nhow the subject matter of the appeal is classified for these two variables, which is indicated in the\ncodebook.\n13. These collapsed variables are labeled in the data set as \xe2\x80\x9cvariablename2.\xe2\x80\x9d\n14. These collapsed variables are labeled in the data set as \xe2\x80\x9cvariablename2.\xe2\x80\x9d\n454 | An Empirical Examination of the Business of the Montana Supreme Court\n\n\x0cFull Published\nOpinions\n\nNoncite Memorandum\nOpinions\n\nClosed\nCases\n\nCases Carried\nOver\n\nPro Se\nCases\n\n2007 751\n\n233\n\n125\n\n713\n\n694\n\n193\n\n2017\n\n158\n\n148\n\n764\n\n581\n\n228\n\nYear\n\nTotal\nAppeals\n\n596\n\nTable 1. The Appeals Filled and Disposed of by the Montana Supreme Court in 2007 and 2017\n\nOther features displayed in this table are the number of cases resolved by the court and the\nnumber of cases carried over to the next year.\n\n15\n\nThe court disposed of nearly the same number\n\nof cases in both years. However, it is striking that the number of appeals carried over to the next\nyear was just over one hundred appeals less in 2017. These carried-over cases were either appeals\nfiled late in the year that the court could not decide and finish before the new year or difficult\nor unique cases that required repeated and extended attention by the court after the parties had\nsupplied more information. The pro se cases are those appeals presented to the court by the party\n(the appellant) acting on their own behalf without the assistance of an attorney. As a proportion of\nthe total appeals for each year, this subset of cases represents just over a quarter of the appeals in\n2007 and nearly 40 percent of all the appeals filed in 2017. This is a striking feature of the appeals.\nPro se cases could involve individuals appealing their criminal convictions. However, there are a\nvariety of civil matters in which the appellant proceeds on his or her own. The court makes every\neffort to accommodate such appellants, but they undoubtedly present a challenge to the court due\nto a lack of legal representation.\nTable 1 also shows information about how the court handled its work during these two years. A\nsubstantial portion of the appeals were disposed of in each of the four ways that are displayed in\nfigure 1. Cases \xe2\x80\x9cDismissed\xe2\x80\x9d and those \xe2\x80\x9cRemanded for Re-Briefing \xe2\x80\x9d constitute about 50 percent\nof the 2007 appeals disposed of by the court and nearly 60 percent of those the court treated\nin 2017. Obviously, these are substantial portions of the court\xe2\x80\x99s business, and these filings do not\nreceive decisions on the merits unless they are refiled. A detailed examination of these appeals\nis beyond the data available for this study. There is no public record available on the nature of\nthese dismissed appeals. However, it is clear that the court\xe2\x80\x99s decisional processes allow it to make\na preliminary screening decision on a substantial portion of the appeals that are brought to it\non appeal. This process is similar to the rapid disposition method (RDM) utilized by the Court of\nAppeals for the Ninth Circuit to manage their heavy caseload.\nThe remainder of the court\xe2\x80\x99s dispositions involves a decision and opinion on the merits. A large\n\n15. A case that is \xe2\x80\x9ccarried over\xe2\x80\x9d is one that was not decided during the calendar year under study. That\ncould be because of the appeal occurring late in the year or because the case was very complex,\nrequiring a great deal of time to decide.\nAn Empirical Examination of the Business of the Montana Supreme Court | 455\n\n\x0csegment of this category was decided by a full written opinion (32 percent in 2007 and 20 percent\nin 2017). These types of decisions contribute to the body of precedent. These cases involve legal\nissues that the court determined are credible and possibly useful for future litigants. As a result,\nthe court issued full opinions on this set of appeals. On the other hand, memorandum opinions\nresolved cases that do not constitute precedent for future legal issues. It is notable for the court\nto divide cases that it and future litigants could use as precedent in later cases and others that\nonly resolve the issue(s) in the case for the affected litigants. The fundamental feature of the data\ndisplayed here is that a large portion of the court\xe2\x80\x99s appellate work is treated relatively summarily\nand quickly, without full opinions or treatment by a full en banc court. In 2007, about two-thirds of\nthe cases were treated by one of the three limited methods of disposition that did not constitute\n16\n\nprecedent by the court. That proportion was nearly 80 percent in 2017.\n\nSources of Appeals\nThe next question explored here is, Where did these appeals come from? To answer this question,\nwe must sort the cases by the lower courts that generated the appeals, and there are several\ndifferent ways we can accomplish this categorization. First, there is the question of where the\nappeals originated. That involves two features. One is the geographic origin of the appeals. This\n17\n\nis related to various population centers and other locations in Montana. The second feature is\nthe court of original jurisdiction. Although figure 1 correctly indicates that there are three possible\ncourts that could generate appeals for the supreme court, there are a large number of courts of\nlimited jurisdiction that may have heard cases originally. A second perspective on the source of\ncases is who brought the appeal. It is obvious that the party that lost the case below (at trial) is the\nlikely appellant. There may be cross appeals filed by the winner in order to obtain some correction\nof a favorable lower court\xe2\x80\x99s order; however, for the most part, appeals are largely brought by losing\nparties seeking to have the supreme court correct a legal error that the appellant argues was made\nat the trial-court level.\n\n16. This last statement may be somewhat misleading. That is because the court\xe2\x80\x99s memorandum opinions\ndo constitute decisions on the merits, whereas the dismissals and remands are not decisions on the\nmerits at all. The important point is that the court has fashioned procedures that allow it to siphon\noff segments of its business in ways that relieve it from a good deal of detailed work.\n17. Montana has district courts in each of its fifty-six counties (Montana Constitution Art. VII, \xc2\xa74).\nHowever, the constitution permits the state legislature to draw \xe2\x80\x9cdistrict\xe2\x80\x9d boundaries to include\nmultiple counties. As a result, there are twenty-two judicial districts that encompass one to seven\ncounties each (MCA \xc2\xa73-5-101). The geographically largest district is District 16, which includes seven\ncounties and therefore seven separate district courts. One judge covers all these counties.\n456 | An Empirical Examination of the Business of the Montana Supreme Court\n\n\x0cNext, we look at which court level, displayed in figure 1, the appeals originated from. Table 2 is\nan aggregate display of the court of origin for the appeals. Clearly, the large majority (nearly 85\npercent) were originally filed in the trial courts of general jurisdiction (district courts). Nearly\nanother 10 percent were started in the justice courts or municipal courts in the state. These\n18\n\nappeals were channeled through the district court, which treated them de novo.\n\nThis category\n\nlargely involved misdemeanor crimes initially treated by justices of the peace. Thus the vast bulk of\nappeals came to the supreme court from the district courts. Interestingly, the last 5 percent began\n19\n\nin the specialized water courts or the workers\xe2\x80\x99 compensation courts.\nCourt\n\nProportion of Appeals N\n\nCourts of Limited Jurisdiction*\n\n9.7%\n\n66\n\nDistrict Court\n\n84.5%\n\n577\n\nWater Court/Worker\'s Compensation Court 5.8%\n\n40\n\nTotal\n\n683\n\n100%\n\nTable 2. Court of Origin for Appeals Filed with the Montana Supreme Court, 2007 and 2017\n*This category includes Justice Courts, Municipal Courts, and City Courts.\n\nThe second exploration of where cases came from is displayed in figure 3, which represents a\nset of dot plots showing the number of appeals from each of the twenty-two district courts in\nthe state. Dot plots are a readable method of arraying some kinds of data. Figure 3a displays the\nnumber of total appeals, combining appeals from both years. These are categorized by district\ncourt numbers from which appeals were taken. The largest sets of appeals are displayed at the\nbottom of figure 3a. Figures 3b and 3c subdivide the appeals by the years under study here.\nClearly there are some districts that generate the bulk of the appeals in either year as well as the\ncombined number.\n\n18. De novo treatment of a case means the district court started the case again \xe2\x80\x9cfrom the beginning.\xe2\x80\x9d\n19. It should be noted that from this point in the analysis, the number of cases in the data set (N = 692)\nare reduced to those that are reported rather than the totals that were given in various the tables\npresented in this analysis.\nAn Empirical Examination of the Business of the Montana Supreme Court | 457\n\n\x0cFigure 3a. Appeals by District 2007 and 2017\n\nFigure 3b. Appeals by District, 2007\n\nFigure 3c. Appeals by District, 2017\n\n458 | An Empirical Examination of the Business of the Montana Supreme Court\n\n\x0cThe largest numbers of filings come from the population centers in the state. District 13, for\nexample, is Yellowstone County, which includes the state\xe2\x80\x99s largest city, Billings. The other districts\nwith the largest number of filings are District 1 (containing the capital, Helena), District 2 (Butte),\nDistrict 4 (containing Missoula), District 8 (Great Falls), and District 11 (Kalispell). The other three\ndistricts that provided a noticeable set of appeals are a mixed set. District 18 (Bozeman) could be\nconsidered a population center, though the number of appeals from that district is less than the\nother population centers.\n\n20\n\nBoth District 12 and District 21 contain more than one county. These\n\ndistricts, each of which generated a significant number of appeals in one of the two years, do not\ncontain any population centers.\nWhile the subset of districts that generated the most or the largest set of appeals seems arbitrary,\nthe largest numbers of appeals come from population centers. The largest numbers of filings are\nnot from identical districts for both years. Districts 12 and 21 were each among the largest of the\nseven in one of the years, but not both. Figure 3a is a less clear presentation, as there are several\nbreaks or gaps when both years are added together. The dots and the cutoff could include Districts\n5 and 20 for a total of ten districts. These two districts do not contain state population centers.\nHowever, the eight largest appeals from districts (identified in figures 3b and 3c) are the eight\nlarge, populated districts. The other extreme (the upper portions of each figure) identifies districts\nthat presented very few appeals, say one or two per year. The median number of appeals from the\ntwenty-two districts was 10 in 2007 and 9.5 in 2017 (the means are 15.6 and 14.3, respectively).\nThe third question about origins seeks to determine who appealed cases. This involves the types\nof parties appealing cases. There are various ways to categorize parties. The simplest, used here,\nis to bundle together all (1) individuals acting on a matter that concerns them; (2) government\ninstitutions, whether a sheriff, a city, or the governor of the state; and (3) companies or business\ninterests of some sort. As displayed below, there is a fourth category of \xe2\x80\x9cother\xe2\x80\x9d parties. The largest\nnumber of appellants in this category was interest groups litigating a public policy issue, such as\nan issue involving environmental protection or water conservation.\nTable 3 indicates the types of appellants and appellees involved in appeals to the Montana\nSupreme Court. This display of data contains a tabulation of the filings combing both years. The\n21\n\ndifference between 2007 and 2017 on this matter is not noticeable. Of course, appellants were the\n\n20. The districts identified below contain all the population centers in the state. These are not\nnecessarily large urban cities in the usual sense. This table indicates the 2017 population and the\nproportion of the state population in the relevant districts.\n21. It should be noted that table 3 is statistically significant\xe2\x80\x94that is, the p-value is less than .05 (p < .05).\nIn other words, the displayed pattern between appellant and appellee most likely did not occur\nrandomly or by chance. While this discussion does not rely on the statistical significance of the data,\nAn Empirical Examination of the Business of the Montana Supreme Court | 459\n\n\x0cparties who lost in the court below and who sought a reversal of the trial outcome. It is important\nto note the number of cases appealed by each type of appellant and appellee in the table. These are\nthe row and columns labeled \xe2\x80\x9cN\xe2\x80\x9d in the table. Clearly, the vast bulk of the appeals was brought by\nindividuals (81.2 percent), and most of the time (56.8 percent), the government is the appellee. That\nindicates that the \xe2\x80\x9ctypical\xe2\x80\x9d appeal involves an individual challenging an action by a governmental\nentity where the appellee won in the trial court. The table also indicates that the remaining types\nof appellants and appellees constitute small portions of the litigating population in this study.\nAppellee Individuals\n\nAppellee Government\n\nAppellee Business\n\nOther\n\nTotal\n\nN\n\nAppellant Individuals\n\n17.6%\n\n56.8%\n\n14.6%\n\n11.0%\n\n81.2%\n\n562\n\nAppellant Government\n\n62.9%\n\n11.4%\n\n14.3%\n\n11.4%\n\n5.1%\n\n35\n\nAppellant - Business\n\n23.1%\n\n25.0%\n\n44.2%\n\n7.7%\n\n7.5%\n\n52\n\nOther\n\n18.6%\n\n30.2%\n\n11.6%\n\n39.5% 6.2%\n\n43\n\nTotal\n\n20.4%\n\n50.4%\n\n16.6%\n\n12.6%\n\nN\n\n141\n\n349\n\n115\n\n87\n\n100.0% 692\n692\n\nTable 3. The Appeals Filled with the Montana Supreme Court Categorized by the Type of Appellant and Appellee, 2007\nand 2017\nChi2 = 111.47\n\npr=.0001\n\nNote: Appellants file appeals. Appellees respond to appeals brought by appellants.\n\nThe appeals brought by individuals against the government largely dealt with one of two kinds of\nclaims by individuals. First, a great many appeals considered an individual subjected to a criminal\ncharge or convicted of criminal activity who challenged his or her charge/conviction in some\nform. These suits are brought against the county, the county prosecutor, or a prison warden. All\nof these appellees are represented by the state attorney general at the supreme court. In most\nof those cases, the relevant county attorney also prepared the response to the appeal, but the\nattorney general or a staff member filed the response. A second set of these appeals treated\nan individual seeking a remedy for (relief from) some action by a government agency or actor\ninvolving an administrative or civil issue. That is, the government actor reached a decision or took\nsome action that the appealing individual challenged on grounds that it was illegal. The remainder\n\nit is worthwhile to note. The statistical significance is also misleading here because some of the cells\nin some tables contain small numbers of values.\n460 | An Empirical Examination of the Business of the Montana Supreme Court\n\n\x0cof individual appellants\xe2\x80\x99 cases was relatively evenly distributed among the other three kinds of\nappellees.\nThe second most frequent appellant was businesses (7.5 percent). These appeals largely involved\ncases against other businesses. It is possible these contract disputes could not be settled through\nnegotiation or mediation. Another quarter of the appeals by businesses were challenges to a\ngovernmental policy. A bit over 20 percent of appeals from businesses were against individuals.\nNearly all of this last category of contract cases dealt with individual who entered commercial\ntransactions that failed for some reason. Businesses and the other two small categories of\nappellants\xe2\x80\x94the government and \xe2\x80\x9cother\xe2\x80\x9d\xe2\x80\x94constitute just under 20 percent of appellants\naltogether. None of these three categories compose a striking portion of the appellants.\nIt is noticeable that when the government appealed a case, the primary appellees were individuals\n(over 60 percent). These appeals by the state or a local government involve a variety of civil\ndisputes. There were two primary appellee categories of appeals brought by \xe2\x80\x9cother\xe2\x80\x9d appellants\nagainst \xe2\x80\x9cother\xe2\x80\x9d appellees (nearly 40 percent) and against governmental actors (30 percent). Given\nthat many of the \xe2\x80\x9cother\xe2\x80\x9d appellants were interest groups, their suits against governmental\nagencies were focused on a policy or regulation that raised a legal issue that the advocacy group\nsought to reverse or clarify.\n\nThe Nature of Appeals\nWho Are the Appellants?\nThe nature of the appeals that the various categories of appellants presented to the court is\n22\n\nsuggested above and also displayed in table 4.\n\nThis is a simple categorization of appeals versus\n\nappellants. The meaning of a civil or criminal appeal is self-evident. The \xe2\x80\x9cother\xe2\x80\x9d category included\na variety of issues related to equity claims. These include appeals that involved injunctions,\nrestraining orders, or determinations of status\xe2\x80\x94for example, determinations relating to youth\nin need of care. In addition, this category included civil commitment cases where an individual\nchallenging his or her commitment to an institution for some kind of treatment. Interestingly, the\ncivil and criminal appeals each constituted about the same portion of the appeals (43.5 percent\nand 39.3 percent, respectively). The remaining 17 percent were the \xe2\x80\x9cother\xe2\x80\x9d types of appeals.\n\n22. The preceding footnote (#20) applies here.\nAn Empirical Examination of the Business of the Montana Supreme Court | 461\n\n\x0cSubject Matter Civil\n\nSubject Matter Criminal\n\nSubject Matter Other\n\nTotal\n\nN\n\nAppellant Individuals\n\n38.3%\n\n45.6%\n\n16.2%\n\n81.2%\n\n562\n\nAppellant Government\n\n45.7%\n\n40.0%\n\n13.3%\n\n5.1%\n\n35\n\nAppellant - Business\n\n94.2%\n\n0.0%\n\n5.8%\n\n7.5%\n\n52\n\nOther\n\n48.8%\n\n4.7%\n\n46.5%\n\n6.2%\n\n43\n\nTotal\n\n43.5%\n\n39.3%\n\n17.2%\n\n100.0% 692\n\nN\n\n301\n\n272\n\n119\n\n692\n\nTable 4. Appeals Filed with the Montana Supreme Court Categorized by Appellant and Subject Matter, 2007 and 2017\nChi2 = 99.7389\n\npr=.0001\n\nThe core feature of criminal appeals is that they are presented by individuals. Civil appeals\ninvolved various appellants who raised different substantive issues. Table 5 displays the numbers\nand proportions of civil appeals categorized by the type of appellant and the substantive issue\npresented in the appeal. This category of appeals (civil) constitutes nearly half the business of the\ncourt during these two terms. The largest set of civil appeals involved contract issues. The \xe2\x80\x9cother\xe2\x80\x9d\ncategory of appeals is the next largest and involved various procedural issues, equitable claims,\ngovernment regulations, and public policy. Property claims involved nearly a quarter of appeals to\nthe court. Tort claims constituted a small segment of the substantive work for the court.\nThe bulk of civil appeals were brought by individuals. The primary subject of those appeals was\nissues relating to contract. These appeals involved either interpreting a provision of a contract\nor resolving issues about what the consequence of the contract was. Businesses were the second\nmost frequent appellant (over 15 percent of civil appeals), and those suits were primarily contract\ncases. Half the appeals brought by businesses were contract cases. The government was not the\nappellant in many civil cases at all (5.3 percent). The \xe2\x80\x9cother\xe2\x80\x9d category of appellants includes a\ncollection of appellants, largely interest groups, both public and private. There were few appeals\nbrought by this category of appellant, but most of those raised property issues.\nAppellant\n\nContract\n\nTort\n\nProperty\n\nOther\n\nTotal\n\nIndividual\n\n72 (66.7%)\n\n25 (80.7%) 53 (72.6%) 65 (73.0%)\n\n215 (71.4%)\n\nGovernment 7 (6.5%)\n\n0\n\n2 (2.7%)\n\n7 (7.9%)\n\n16 (5.3%)\n\nBusiness\n\n24 (22.2%)\n\n3 (9.7%)\n\n10 (13.7%)\n\n12 (13.5%)\n\n49 (16.3%)\n\nOther\n\n5 (4.6%)\n\n3 (9.7%)\n\n8 (11.0%)\n\n5 (5.6%)\n\n21 (7.0%)\n\nTotal\n\n108 (35.95) 31 (10.3%)\n\n73 (24.2%) 89 (29.6%) 301 (100%)\n\n462 | An Empirical Examination of the Business of the Montana Supreme Court\n\n\x0cTable 5. Types of Civil Appeals Categorized by Types of Appellants, 2007 and 2017\nChi2 = 11.6521\n\npr=0.23\n\nTypes of Questions\nThe kinds of questions presented to the court on appeal require another categorization. The\nissue(s) involved a substantive issue of law, a procedural issue, or a constitutional issue. Table 6\ndisplays this categorization of the appeals to the court. The largest segment of appeals presented\nthe court with a substantive legal issue. A full quarter of the appeals challenged the procedure\nused at the trial-court level. There were only sixteen appeals that raised purely (only) a\nconstitutional issue. Of those, 68 percent were affirmed. That means that over 30 percent of these\nfew appeals treated at least a partial reversal of the lower court on the issue. These few cases (five\nappeals altogether) did not necessarily mean the court invalidated a statute as unconstitutional;\nrather, these claimed a violation of a constitutional right or principle that required reversal.\nIssue Type\n\nProportion N\n\nSubstantive\n\n43.9%\n\n304\n\nProcedural\n\n25.9%\n\n179\n\nConstitutional 8.5%\n\n59\n\nMixed\n\n150\n\nTotal\n\n21.7%\n\n692\n\nTable 6. Types of Appeals Categorized by Issue Type, 2007 and 2017\n\nThere were appeals that combined an issue of constitutional law and a substantive or procedural\nclaim. An appeal does not necessarily present only one issue; rather, a mixture of claims was\nprevalent in a number of appeals. The \xe2\x80\x9cconstitutional\xe2\x80\x9d category in table 6 combines cases with\nmultiple issues (substantive or procedural as well as constitutional). This expanded category of\ncases with some constitutional issue includes the most expansive set of constitutional appeals\nthat is possible here. This category still constitutes less than 10 percent (8.5 percent) of the court\xe2\x80\x99s\nbusiness. The other categories presented in table 6 obviously constitute the vast bulk of the court\xe2\x80\x99s\nappellate work. Close to 70 percent involve a substantive claim relating to either a common-law\nor a statutory issue. The 25 percent of appeals that presented procedural issues is interesting to\nnote. That means one-quarter of the appeals claimed that the trial court\xe2\x80\x99s proceedings did not\ninvolve a matter of substance. As already noted, the \xe2\x80\x9cmixed\xe2\x80\x9d category included determinations of\n\nAn Empirical Examination of the Business of the Montana Supreme Court | 463\n\n\x0cstatus for the appellant or requests for injunctive relief. The broadest set of appeals that presented\na constitutional issue involved fifty-nine of the appeals to the court.\nThis last point is not surprising, but it is worth emphasizing that the work of this appellate court\n(and perhaps other state appellate courts in this country) may not involve a large portion of issues\nof constitutionality. The concern that some observers have about the exercise of the power of\njudicial review is an important point of discussion; however, this state court had few opportunities\nto consider an issue of constitutionality. Furthermore, those cases did not contain a constitutional\nflaw in the trial court\xe2\x80\x99s work. When the remaining appeals (reversed or affirmed in part) are\ncombined, just over 20 percent of the appeals were reversed\xe2\x80\x94and again, none of these decisions\ninvolved the declaration of a constitutional error.\n\nNumber of Issues\nAnother feature of the kinds of appeals that might be considered is the number of issues decided\nby the court. Appeals often presented the court with various legal questions, ranging well into\nthe double digits. However, the median number of issues raised was 1 and the mean is 1.7. These\nappeals displays several interesting features when the data are categorized by the substantive\nkinds of cases presented to the court. The court often indicated that one legal question out of the\nmultiple questions presented on appeal was determinative. As a result, the court only decided that\nlegal issue, no matter how many legal issues the appellant presented in his or her brief. Table 7\nindicates the substantive case types and the number of legal issues presented to the court (not\nnecessarily decided). A substantial majority of appeals presented a single issue (nearly 60 percent).\nAnother 20 percent of appeals presented the court with two issues. The other 20 percent of cases\npresented three or more issues.\n\n23\n\nNumber of Legal Issues Contract\n\nTort\n\nProperty\n\nOne Issue\n\n59 (50.4%)\n\n15 (41.7%)\n\nTwo Issues\n\n19 (16.2%)\n\n9 (25.0%)\n\nMore than Two Issues\n\n39 (33.3%)\n\nTotal\n\n117 (16.9%) 36 (5.2%)\n\nOther\n\nTotal\n\n33 (44.0%) 177 (63.2%)\n\n129 (70.1%)\n\n413 (59.7%)\n\n23 (30.7%)\n\n69 (21.4%)\n\n26 (14.1%)\n\n137 (19.8%)\n\n12 (33.3%) 19 (25.3%)\n\n43 (15.7%)\n\n29 (15.7%)\n\n142 (20.5%)\n\n75 (10.8%)\n\nCriminal\n\n280 (40.5%) 184 (26.6%) 692 (100%)\n\nTable 7. Types of Appeals Categorized by the Number of Legal Issues Presented, 2007 and 2017\n\n23. The extreme appeal was one case that presented thirteen issues. The Court decided only one of\nthose.\n464 | An Empirical Examination of the Business of the Montana Supreme Court\n\n\x0cChi2 = 38.4975\n\npr=0.000\n\nWhen the types of appeals are examined in relation to the number of questions, criminal appeals\npresent the largest proportion of single-issue appeals. None of the other (civil) categories of case\ntypes display very striking differences in the proportions of issues. There is some variation in the\nproportions of single-issue cases for contracts and the other category. Probably the most striking\nfeature of the data categorized by number of issues and case types is the fact that on appeal, most\nof the appeals presented the court with one issue. In fact, for multiple-issue cases, the court often\nconverted those to a single issue that disposed of the case.\n\nAppellate Outcomes\nThe outcome of the court\xe2\x80\x99s decisions in these appeals presents interesting patterns. These results\nare first displayed in tables 8a and 8b. These results are categorized by the type of appellant\n(table 8a) and the kinds of substantive issues presented to and decided by the court (table 8b). In\nthe aggregate, the appeals were largely affirmed (73.7 percent). This indicates that the appellants\xe2\x80\x99\nclaims, though considered by the supreme court, did not constitute a reversible error in threequarters of the appeals. This feature does not vary with the type of appellant. Seven percent\nwere affirmed in part and reversed in part. That means that some action by the lower court was\nreversed even though that is really a partial victory for the appellant. In those cases, the lower\ncourt was directed to correct some legal error. Nearly 14 percent were reversed completely. These\ngeneral features of table 8a suggest that trial-court errors requiring reversal (correction) by the\nsupreme court were the exception rather than the rule for these two years.\nAppellant\n\nAffirmed\n\nAffirmed in Part / Reversed in Part Reversed\n\nOther\n\nTotal\n\nIndividual\n\n433 (77.1%)\n\n38 (6.8%)\n\n73 (13.0%)\n\n18 (3.2%)\n\n562 (81.2%)\n\nGovernment 16 (45.7%)\n\n3 (8.6%)\n\n10 (28.6%)\n\n6 (17.0%)\n\n35 (5.1%)\n\nBusiness\n\n41 (78.9%)\n\n2 (3.9%)\n\n9 (17.3%)\n\n0 (0.0%)\n\n52 (7.5%)\n\nOther\n\n20 (3.9%)\n\n7 (16.3%)\n\n4 (9.3%)\n\n12 (27.9%) 43 (6.2%)\n\nTotal\n\n510 (73.7%) 50 (7.2%)\n\n96 (13.9%) 36 (5.2%)\n\n692 (100%)\n\nTable 8a. Outcome of Appeals Decided by the Montana Supreme Court 2007 and 2017 Categorized by Types of\nAppellant. Result of Appeals\nChi2 = 1.1102\n\npr=0.000\n\nAn Empirical Examination of the Business of the Montana Supreme Court | 465\n\n\x0cAppellant Affirmed\n\nAffirmed in Part / Reversed in Part Reversed\n\nOther\n\nTotal\n\nContract\n\n79 (67.5%)\n\n13 (26.0%)\n\n14 (14.6%)\n\n11 (30.6%) 117 (16.9%)\n\nTort\n\n23 (63.9%)\n\n3 (11.1%)\n\n7 (12.0%)\n\n3 (9.4%)\n\n36 (5.2%)\n\nProperty\n\n51 (68.0%)\n\n10 (13.3%)\n\n11 (14.7%)\n\n3 (4.0%)\n\n75 (10.8%)\n\nCriminal\n\n224 (80.0%) 13 (4.6%)\n\n37 (13.2%)\n\n6 (2.1%)\n\n280 (40.5%)\n\nOther\n\n133 (72.3%)\n\n11 (6.0%)\n\n27 (28.1%)\n\n13 (7.1%)\n\n184 (26.6%)\n\nTotal\n\n510 (73.7%)\n\n50 (7.2%)\n\n96 (13.9%) 36 (5.2%)\n\n692 (100%)\n\nTable 8b. Outcome of Appeals Decided by the Montana Supreme Court 2007 and 2017 Categorized by Type of Legal\nIssue. Results of Appeals\nChi2 = 24.7613\n\npr=0.016\n\nBoth individual and business appellants lost their appeals over 75 percent of the time. There\nseems to be little difference between these two primary appellants in their winning proportions\n(reversals in 19.8 percent for individuals and 21.2 percent for businesses). On the other hand,\nthe government as an appellant prevailed (at least partially) in a larger proportion of appeals\n(37.2 percent reversals). The other category of appellants did receive a notable number of \xe2\x80\x9cother\xe2\x80\x9d\noutcomes. These court orders related to injunctions, vacating and remanding, or procedural\nrulings, such as mootness or a lack of jurisdiction or standing.\nTable 8b examines the outcomes categorized by type of case. The most striking feature of this\ndisplay is that criminal appeals were the highest proportion of affirmed results among the\ncategories. This finding suggests that the court addressed the criminal appeals, scrutinizing the\nlower court closely, but generally could find no reversible error in the lower courts\xe2\x80\x99 actions. The\nthree categories of civil appeals\xe2\x80\x94contracts, torts, and property\xe2\x80\x94were all affirmed at nearly the\nsame rate. There are almost no differences among case types in terms of complete reversals. If\nthe partial reversals are added, there is a bit more variation; however, it does not appear to be a\nstriking set of differences.\n\nThe Votes and Work of Justices\nThe vote of either the five-justice panel or the seven-justice panel on these cases was largely\nunanimous. Table 9 indicates this feature of the supreme court\xe2\x80\x99s decisions. Over 85 percent of\nthe appeals were decided unanimously regardless of whether they were decided by five or seven\n\n466 | An Empirical Examination of the Business of the Montana Supreme Court\n\n\x0c24\n\njustices.\n\nSome of these unanimous decisions did include a concurring opinion; this set (about\n\n5 percent of the unanimous decisions) involved support for the result but presented a different\nview of the reason for that result. Only about 13 percent of the appeals were decided with one\nor more dissenting opinions. This level of unanimity changed somewhat between the two court\nterms examined here, though the differences were not statistically significant. The 2007 term had\n14.6 percent nonunanimous compared with 10.9 percent in 2017. The aggregate of these two was\n13.4 percent nonunanimous decisions. The takeaway point from these analyses is that the court in\n2007 was somewhat more divided than in 2017.\nPanel\n\nUnanimous\n\nFive-Justice Panel\n\n550 (93.4%) 39 (6.6%)\n\nSeven-Justice Panel 49 (47.6%)\nTotal\n\n25\n\nNon-Unanimous Total\n589 (85.1%)\n\n54 (52.4%)\n\n103 (14.9%)\n\n599 (86.6%) 93 (13.4%)\n\n692 (100%)\n\nTable 9. The Vote of Montana Supreme Court Panels, 2007 and 2017\nChi2 = 158.1210\n\npr=0.000\n\nIt is clear that the court\xe2\x80\x99s procedure allows five-justice panels to decide appeals under some\ncircumstances. Table 9 shows that for the two years examined here, 86 percent of the court\xe2\x80\x99s\ndecisions were rendered by five-justice panels\xe2\x80\x94a large portion of the court\xe2\x80\x99s decisions. A second\npoint to note is that the proportion of unanimous decisions in seven-justice panels is lower\nthan the proportion in five-justice panels (48 percent compared with 93 percent). This might be\nbecause the seven-justice panels arise only when three justices request oral argument or when\nfour justices of a five-justice panel cannot agree on the decision. It is not possible to determine\nwhich of the seven-justice decisions were the result of five-justice panel disagreement and which\nwere selected out by any justice who decided oral argument should be conducted. The difference\nin votes might suggest that the seven-justice panels deal with the more controversial or difficult\ncases. Table 9 permits the conclusion that the bulk of the court\xe2\x80\x99s business is handled by the\nsmaller panels of justices, and those appeals are probably easier, run-of-the-mill cases. It could\nbe inferred that a portion (less than 15 percent of the appeals) generated enough disagreement\nor attention among the court members to warrant full-court decisional attention. Lastly, it is\n\n24. In comparison, the median proportion of unanimous decisions by the US Supreme Court between\n1948 and 2017 was 30 percent.\n25. Since there are no data in this set regarding the voting patterns of each justice, it is not possible to\nmake any judgments about which justices were the \xe2\x80\x9cdissenters\xe2\x80\x9d in 2007 or in 2017. Those data need\nto be collected and added to the set before additional analysis can be made of this phenomenon.\nAn Empirical Examination of the Business of the Montana Supreme Court | 467\n\n\x0cnoticeable that even the seven-justice panel decided a significant proportion of its cases (nearly\nhalf) unanimously.\nWhile the individual votes of the justices in each case were not recorded, the identity of the\nopinion writer was collected. This permits the examination of several questions. The first is\nwhether the opinion writing for each year was distributed evenly among the seven justices.\nSecond, did the chief justice write about one-third fewer opinions than the other members of the\ncourt, as the IORs permit? Tables 10a and 10b provide the opinion writers by year, with the justices\nidentified by number. A completely even distribution of opinions among the seven justices would\nrequire each justice to write one-seventh (14.3 percent) of the opinions. Clearly opinion workload\nwas not distributed evenly among the justices. However, the distribution of opinions is fairly even,\nwith some variation among the justices\xe2\x80\x99 workloads. This suggests that the US Supreme Court\xe2\x80\x99s\nnorm of equal work may be shared in other collegial high courts.\nJustice\n\nOpinions Proportion of Total Mean Opinion Length (Pages) Median Opinion Length (Pages)\n\n2007-1\n\n48\n\n13.3\n\n7.5\n\n6\n\n2007-2\n\n54\n\n15.0\n\n10.2\n\n8\n\n2007-3\n\n65\n\n18.1\n\n9.8\n\n8\n\n2007-4\n\n56\n\n15.6\n\n10.6\n\n8\n\n2007-5\n\n45\n\n12.5\n\n18.9\n\n13.5\n\n2007-6 48\n\n13.3\n\n10.9\n\n10\n\n2007-7\n\n12.2\n\n8.2\n\n7\n\n44\n\nTable 10a. The Number of Proportion of Opinions Written by Montana Supreme Court Justices, 2007\nNote: The average length of all opinions rendered in 2007 was 10.7 pages, and the standard deviation was 9.6. That is a\nfairly wide distribution of opinion lengths.\n\nJustice Opinions Proportion of Total Mean Opinion Length (Pages) Median Opinion Length (Pages)\n2017-1\n\n59\n\n18.2\n\n7.4\n\n6\n\n2017-2\n\n54\n\n16.7\n\n12.3\n\n10\n\n2017-4\n\n43\n\n13.3\n\n12.7\n\n12\n\n2017-5\n\n53\n\n16.4\n\n9.2\n\n8\n\n2017-6\n\n25\n\n7.7\n\n13.4\n\n10\n\n2017-7\n\n38\n\n11.7\n\n8.8\n\n8\n\n2017-8\n\n52\n\n16.1\n\n10.0\n\n8\n\n468 | An Empirical Examination of the Business of the Montana Supreme Court\n\n\x0cTable 10b. The Number of Proportion of Opinions Written by Montana Supreme Court Justices, 2017\nNote: The average length of all opinions rendered in 2017 was 10.3 pages, and the standard deviation was 6.2. That too\nis a fairly wide distribution of opinion lengths.\n\nIt is unlikely that each justice would ever be assigned precisely one-seventh of the opinions\nto write. Justice 3 did write the largest proportion of opinions in 2007 (18 percent). That value\nis certainly higher than the target. It is interesting that a number of the remaining justices\n(particularly 1, 3, and 7) wrote noticeably less than one-seventh of the opinions. It is accurate to\nsay that the distribution of majority opinions in 2007 was about even among all the justices.\nThe distribution for 2017 was different. Again, 14.3 percent would be an even distribution for each\nof the seven justices. In this year, Justice 1 wrote the highest proportion of opinions. Furthermore,\nthree other justices (2, 5, and 8) wrote relatively high proportions, and this might account for the\nstrikingly low proportion written by Justice 6. The reason for this particular feature of 2017 was\nthat Justice 8 retired from the court, and another justice chose not to run for retention. Justice 6\nwas elected to the High Court in November 2016 and was sworn in at the beginning of 2017. This\nlow output might reflect a choice by the assigner (usually the chief justice) to permit the freshman\njustice to \xe2\x80\x9clearn\xe2\x80\x9d during this year and have the other six justices make up the difference.\nThe second question focuses on the writing workload of the chief justice. The answer to that\nquestion is that neither chief justice wrote one-third fewer opinions, as the IORs permit. If the\nchief justice wrote one-third fewer opinions, that proportion would be about 9.6 percent of the\ncourt\xe2\x80\x99s output. In terms of the raw numbers, one-third fewer opinions in 2007 was thirty-four; in\n2017, it was thirty. The only justice who wrote a noticeably lower proportion of majority opinions\nthan the rest of the court was Justice 6 from 2017, not the chief justice. In both years, the chief\njustice wrote a good deal more than their lower proportion, or number, of opinions would have\npermitted. Both chief justices contributed a significant proportion of opinions each year.\nThe box plots in figure 4 indicate the range of opinion lengths for each justice for 2007 (3a) and\n26\n\n2017 (3b).\n\nThere are two points to note about these figures. First, there are no opinions plotted\n\nin 2017 for Justice 3. That is because this justice was appointed late in the year (December 2017)\nand did not author any opinions. The new justice replaced Justice 8, and the opinion output for\nJustice 8 was not particularly diminished by the abbreviated length of service during that year (see\ntable 8b). Furthermore, table 9 indicates that in 2017, Justice 8 contributed a substantial portion\n\n26. There are various ways to count the length of opinions. The method used here was to count any\nportion of a typed double-spaced page as reported in the database: https://law.justia.com/cases/\nmontana/supreme-court/. A more elaborate and satisfactory method would be a word count of\nopinion length.\nAn Empirical Examination of the Business of the Montana Supreme Court | 469\n\n\x0cof majority opinions despite leaving the court early. Second, note the difference in the vertical\nscales in figures 4a and 4b. The difference is due to who wrote two very long opinions during 2007\n(Justice 5).\n\nFigure 4a: 2007a Opinion Length\n\nFigure 4B: 2017b Opinion Length\n\nFigure 4: Boxplots of Opinion Lengths Categorized by Opinion Writer, 2007 and 2017\n470 | An Empirical Examination of the Business of the Montana Supreme Court\n\n\x0cThe box plots in figure 4 also illustrate that some justices wrote a greater range of opinions when\ncompared to others, and there are relatively striking distributions of opinions for several individual\njustices. In 2007, Justice 3 wrote a number of lengthy opinions (five outliers) when compared with\nthe usual opinion length (the box and median). Justice 5 wrote two exceptionally long opinions (94\nand 105 pages). The bulk of Justice 5\xe2\x80\x99s opinions had a much greater range than that of the rest of\nthe court. The opinion length of the justices in 2017 displays less variation than that of 2007. While\nthere are some outliers, and Justice 6 in 2017 does display more spread than the rest of the justices\xe2\x80\x99\nopinion lengths, generally the opinion behavior of the justices on the supreme court did not vary\na great deal either among the justices or from one year to the next.\nThe last feature of the process to be explored here is the amount of time it took the court to\nreach decisions on appeals. The court\xe2\x80\x99s IORs specify that within 90 days of an appeal submitted\non the briefs, an opinion should be circulated among the rest of the members, and within 180\ndays, it should be announced. The data available for this study do not indicate when an opinion\nwas circulated to the court members. However, most of the cases were \xe2\x80\x9csubmitted on the briefs,\xe2\x80\x9d\nand that can be considered the start date. Interestingly, for 2007 and 2017, the processing time\nranged from a minimum of 12 days to a maximum of 930 days! This maximum is an extreme outlier.\nThe box plots for the two years, displayed in figure 5, indicate some differences in the patterns\nfor 2007 and 2017. There are a number of extremely high outliers in 2007, and while there are\nseveral outliers in 2017, the number of days involved for these outliers is much less than in 2007.\nAdditionally, there are fewer outliers in the 2017 term than in 2007.\n\nFigure 5. Boxplots of the Time from Submission to Decision for Appeals to the Montana Supreme\nCourt, Categorized by Year\n\nAn Empirical Examination of the Business of the Montana Supreme Court | 471\n\n\x0cThe mean processing time (from submission to announcement of the decision) for 2007 was 139\ndays (the median was 90 days). More importantly, a full quarter of the decisions involved more\nthan 195 days. Clearly in 2007, the time the court took to complete its decisions work varied\nwidely, and a substantial portion took more than the 180 days allowed by the court\xe2\x80\x99s own rules.\nThe comparable numbers for the 2017 term were a mean of 54 days and a median of 48 days.\nFurthermore, in 2017 the upper quartile of the court\xe2\x80\x99s decisions required 160 days or more to\ndecide (the maximum was 266 days). The box plots in figure 5 clearly indicate the differences in the\ncourt\xe2\x80\x99s processing time between the two years. The number of appeals decided in these two years\nwas not much different (361 decisions in 2007 and 324 in 2017). The difference in processing time\ndoes not seem related to the volume of work. It could be that the appeals were more \xe2\x80\x9cdifficult\xe2\x80\x9d\nin the earlier year. It could be that the members of the courts were less in agreement about the\noutcomes in 2007, which might have required more time on average to decide cases.\n\n27\n\nIt might\n\nmean that it simply took the justices longer in 2007 to reach decisions even when they were\nunanimous. However, there are no data that measure difficulty. Figure 6 displays the distribution\nof decision time categorized by year and by general type of appeal. These data convey points about\nthis variable that clarify the processing times somewhat. The court\xe2\x80\x99s IORs are designed to provide\nsome parameters for the conclusion of appeals, but the 180 days is clearly an objective, not an\nabsolute.\n\nFigure 6. Boxplots of Time to Decision for Montana Supreme Court Appeals Categorized by Type of\nAppeal and Year. Legend: 1 = Civil Appeals; 2 = Criminal Appeals; 3 = Other Appeals\n\n27. This table indicates the proportion of unanimous decisions during the two years. This permits some\ncomparison with table 9. There is some difference in the proportion of unanimous decisions during\nthe two years; however, it is not a very great difference. It is unlikely that there was more\ndisagreement among the justices between 2007 and 2017.\n472 | An Empirical Examination of the Business of the Montana Supreme Court\n\n\x0cThe differences in processing time between the two years may involve the types of appeals. The\nposition and the spread of the three box plots for 2007 are much different from 2017. In 2007, the\ncategories of case types varied widely in the time it took to decide them. In 2017, the types of\ncases did not take different amounts of time to decide. The means and the medians for each of the\ncategories of appeal in 2017 are nearly identical (mean of 54 days and median of 48 days). There\nis a good deal wider diversity in the mean and median processing time for 2007 cases (139 days\nand 91 days, respectively). Another point to note is that there are several outliers for the \xe2\x80\x9cother\xe2\x80\x9d\ncategory in 2017; this category in 2017 presents some idiosyncratic appeals that required more\nattention than is \xe2\x80\x9cnormal\xe2\x80\x9d for that set of appeals. This is probably not surprising, since these of\nappeals undoubtedly includes a diverse set of issues that do not fit into the traditional civil and\ncriminal cases.\nThe pattern for 2007 is even more striking when the time-to-decision variable is categorized by\ncase type. Most notably, the extreme outlier in 2007 involves one case in the \xe2\x80\x9cother\xe2\x80\x9d category. This\nparticular case was clearly unique. Another notable feature of the box plots for 2007 is that the civil\nappeals show a much wider distribution and display a number of outliers compared with the other\n28\n\ntwo types of appeals. Civil appeals had a mean of 164 days and a median of 118 days.\n\nThese two\n\nindicators of centrality differ from those for the other two categories of appeals. Criminal appeals\nin 2007 had a mean of 124 days and a median of 90.5 days. The \xe2\x80\x9cother\xe2\x80\x9d category of appeals had a\nmean of 99 days and a median of 55 days. These numbers may indicate the \xe2\x80\x9cqualitative\xe2\x80\x9d feature in\nthese kinds of appeals. It is also interesting to note that the upper edge of the box plots (the top\nof the boxes) for both civil and criminal appeals in 2007 exceeded the 180-day guide contained in\nthe court\xe2\x80\x99s IORs (224 and 185 days, respectively). While these patterns are interesting, they do not\nhelp us answer the intriguing question of why the decisional time is so different between the two\nterms, especially when most other indicators reveal only small differences between 2007 and 2017.\nOne final way to look at the time-to-decision feature of these cases would be to consider\nsegments of the time it takes for the court to render a decision. For example, we could look at\nthe proportion of case types that the court decided within 90 or 180 days of submission. The\ncourt decided 99.4 percent of the appeals in 2017 within 180 days of submission (only two appeals\nexceeded that \xe2\x80\x9cdeadline\xe2\x80\x9d). On the other hand, in 2007, the court decided 69.8 percent within the\n180-day limit, and the remainder, some 109 cases (31.2 percent), took longer than 180 days to\ndecide. While this difference presents the same phenomenon as the earlier discussion and displays\nin figures 5 and 6, the difference is striking. Again, what occurred during the 2007 term that\n\xe2\x80\x9ccaused\xe2\x80\x9d this pattern warrants closer inspection.\n\n28. The means and medians for time required to render decisions for the three categories of cases are\nas follows: (link to table)\nAn Empirical Examination of the Business of the Montana Supreme Court | 473\n\n\x0cConclusions and Prospects\nThe conclusions to be drawn from this analysis may not be profound or earth-shattering. They are\ncertainly unique to the Montana Supreme Court. Yet our understanding of this court is enhanced\nby the descriptive treatment of its work during 2007 and 2017. It appears that much (nearly all?) of\nthe court\xe2\x80\x99s work involves examining various challenges to the decisions of the trial courts in the\nstate. Furthermore, the supreme court largely affirmed the original decisions by the lower courts,\nsuggesting that most of the appeals do not present difficult or \xe2\x80\x9cnew\xe2\x80\x9d legal questions that involved\nmany trial-court errors. Most of the court\xe2\x80\x99s business, it seems, did not involve great efforts at\ncorrecting the lower state courts.\nThe court changed membership over this period. There may be fewer cases to disagree about\namong the more recent members (2017) than the earlier year and its members. This would require\nthe collection and analysis of more data from earlier years; data from years such as 2012, which is\nhalfway between the two years examined here; or information on the justices and their ideology.\nThe data used here could be supplemented with additional years of information, providing a more\ncomprehensive picture of the court\xe2\x80\x99s work and its members. However, the data used for this study\nindicate some possibilities for differences among justices and differences over time.\nThis analysis raises a good many questions for future research. Answering these questions would\nprovide a more detailed understanding of the Montana court and its operation and the people\n(justices and litigants) who are involved in that work. The value of empirically based research is\nthat it permits a closer examination of what any court does and how it accomplishes its tasks.\nThis kind of work also allows for comparisons with other state appellate courts if the data were\navailable. While each state is unique in many ways, they all have a judicial system with a high\ncourt, and those courts treat various kinds of appeals (and other business) that would permit\ncomparisons if the data were collected and analyzed.\nThere is a short list of additional questions below that these data might be used to explore.\nHowever, there are many more questions that future research could treat, depending on the\ncollection and analysis of additional variables. The additional data probably should include\nadditional years of the supreme court\xe2\x80\x99s business, permitting much closer and extensive\nlongitudinal analysis. Either examining the comparable data for each year between 2007 and\n2017 or adding other earlier or later years would greatly enhance the understanding that could\nbe derived from this kind of analysis. Additional variables might also be revealing. Identifying\nthe individual justices who voted in the majority and the minority (in those cases that were not\nunanimous) might reveal some individual behavioral patterns among the justices. Since there are\nrelatively few attorneys who appeal cases to the court, examining particular legal representatives\n(lawyers) might yield different results for different attorneys. County prosecutors and public\n474 | An Empirical Examination of the Business of the Montana Supreme Court\n\n\x0cdefenders might display different kinds of criminal cases and different outcomes. Furthermore,\nthe composition of the five-justice panels (which justices served on which panels) might grant a\ncloser understanding of the interpersonal interactions (their votes) among particular justices.\nThere are a number of questions that might yield interesting patterns and results. Perhaps the\nmost important point to make here is that empirical data can answer various questions that\nqualitative data (substantive court decisions) cannot answer. To understand an appellate court in\nthis country, it is important to undertake both kinds of research.\n\nReferences\nBrace, Paul, Laura Langer, and Melinda Hall, (2000). Measuring the Preferences of State Supreme\nCourt Justices, 62 J. of Politics 387\xe2\x80\x93413. (\xe2\x86\xb5 Return)\nBerry, Christopher and Charles Wysong, (2012). Making Courts Matter: Politics and he\nImplementation of State Supreme Court Decisions, 79 Univ. of Chicago L. Rev. 1\xe2\x80\x9329. (\xe2\x86\xb5 Return)\nHall, Melinda Gann, (2015) Attacking Judges: How Campaign Advertising Influences State Supreme\nCourt Elections, (Palo Alto: Stanford Law Books). (\xe2\x86\xb5 Return)\nHall, Melinda and Chris Bonneau, (2008). Mobilizing Interest: The Effects of Money on Citizen\nParticipation in State Supreme Court Elections, 52 Am. J. of Pol. Science 457\xe2\x80\x9370. (\xe2\x86\xb5 Return)\nLindquist, Stefanie and Kevin Pybas (1998). State Supreme Court Decisions to Overrule Precedent,\n1965\xe2\x80\x931996, 20 Justice System Journal 17\xe2\x80\x9340. (\xe2\x86\xb5 Return)\nNeubauer, David and Stephen Meinhold, (2017). Judicial Processes: Law, Courts, and Politics in the\nUnited States, 7th ed. (Boston MA, Cengage Learning). (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nPorter, Mary Cornelia and G. Alan Tarr, eds (1982). State Supreme Courts: Policy makings in the\nFederal System, (Westport CT, Greenwood Press). (\xe2\x86\xb5 Return)\nSohn, William, (2012). Supreme Court Review of Misconstructions of Sister State Law, 98 Virginia\nL. Rev. 1861\xe2\x80\x9396. (\xe2\x86\xb5 Return)\nTarr, G. Alan and Mary Cornelia Porter, (1988). State Supreme Courts in State and Nation, (New\nHaven CT, Yale University Press). (\xe2\x86\xb5 Return)\n\nAn Empirical Examination of the Business of the Montana Supreme Court | 475\n\n\x0c20.\nDistrict\n\nPopulation (2017) Proportion of state population\n\n13\n\n156,332\n\n14.7\n\n11\n\n96,147\n\n9.0\n\n4\n\n125,645\n\n11.8\n\n8\n\n81,810\n\n7.7\n\n1\n\n22,045\n\n2.1\n\n18\n\n100,733\n\n9.5\n\n12\n\n24,525\n\n2.3\n\n21\n\n41,387\n\n3.9\n\nTotal MT population 1,062,305\n\n57.1\n\n27.\nVote\n\nYear\n2007\n\nUnanimous\n\n2007\n\nTotal\n\n308 (85.3%) 291 (89.8%) 599 (87.5%)\n\nNonunanimous 53 (14.7%)\n\n33 (10.2%)\n\n86 (12.6%)\n\nTotal\n\n324\n\n685\n\n361\n\nPearson chi2(1) = 3.1443 Pr = 0.076\n\n28.\nYear\n\nCivil\n\nCriminal Other\n\n2007 164/118 124/90.5\n\n99/55\n\n2017\n\n46/41\n\n57/55\n\n56/53\n\nMean days / median days\n\n476 | An Empirical Examination of the Business of the Montana Supreme Court\n\n\x0cClass Activity\nThere is a relatively small number and proportion of cases in which one or more Montana supreme\ncourt justice dissented,\n\xe2\x80\xa2 Are there specific, individual justices who dissented most of the time?\n\xe2\x80\xa2 Do the dissents display any patterns in\n\xe2\x97\xa6 Case type?\n\xe2\x97\xa6 Reasons given for the dissent?\n\xe2\x97\xa6 Who writes the dissent?\nAbout 8% (53) appeals involved concurring opinions.\n\xe2\x80\xa2 What patterns can be derived from the data about concurring justices?\n\xe2\x80\xa2 Do some kinds (types) of cases display more concurrences than others?\n\xe2\x80\xa2 Do some justices differentiate themselves more than other justices by writing a concurring\nopinion while agreeing with the outcome?\nThe analysis presented here indicates differences in the time-to-decision variable between 2007\nand 2017.\n\xe2\x80\xa2 Does time-to-decision in cases vary over time (different years)?\n\xe2\x80\xa2 Is 2007 a unique year in terms of this variable or has the change in processing patterns been\ngradual (incremental) over the course of a number of years?\n[Exploration of these questions would require more data, from additional years.]\n\nThere were few appeals where the trial court was reversed in the data set for 2007 and 2017.\n\xe2\x80\xa2 Do some districts get reversed proportionately more than others?\n\xe2\x80\xa2 For the six or eight districts with the most appeals,\n\xe2\x97\xa6 What is the reversal rate for this subset of districts?\n\xe2\x97\xa6 Is the reversal rate for these \xe2\x80\x9cbig\xe2\x80\x9d districts different from those of \xe2\x80\x9csmaller\xe2\x80\x9d districts?\nAll the Court\xe2\x80\x99s decisions are not available to be used as precedent.\n\xe2\x80\xa2 What proportion and what kinds of cases resulted in Supreme Court decisions that\nAn Empirical Examination of the Business of the Montana Supreme Court | 477\n\n\x0cconstituted precedent, and what proportion resulted in memorandum opinions?\n\xe2\x80\xa2 Do the memorandum opinions display any noticeable characteristics that differ from the\nother category of decision?\n\xe2\x97\xa6 Types of cases?\n\xe2\x97\xa6 Lower court origination?\n\xe2\x97\xa6 The types of parties bringing the appeals?\nDepending on the availability of data from other states, comparisons between two- and threetiered court systems could be quite possible and interesting.\n\nMontana Supreme Court Research Project Codebook \xe2\x80\x93 2019\nThe variables for this research project on the Montana Supreme Court are listed below in\nalphabetical order.\nThese are contained in two downloadable data sets \xe2\x80\x93 MT SupCt Data 07 & 17 27.xlsx\n______________________\n\naccess\n\nThis variable indicate the method by which the Court considered the case and\n\ndecided it. This variable is located on the front page (the frontmatter) of each opinion.\n\n1 = Submitted on Briefs\n2 = Argued and Submitted (after Oral Argument)\n3 = A Court ruling based on submissions or requested that do not result in a signed opinion. These\nare usually designated by \xe2\x80\x9cPR\xe2\x80\x9d or \xe2\x80\x9cAF\xe2\x80\x9d in the docket number.\n\nN.B. Most Supreme Court cases will have a value of \xe2\x80\x9c1\xe2\x80\x9d for this variable.\n______________________\n\n478 | An Empirical Examination of the Business of the Montana Supreme Court\n\n\x0camcur\n\nThis variable is a count of the number of Amicus Curiae briefs filed in a case.\n\nN.B. This information will be listed on the frontmatter or front page of each case, along with the\nattorneys appearing for the Appellant and the Respondent. Amici are listed separately in favor of\nthe Appellant or the Respondent. Count them all no matter what party they support. There is often\nmore than one attorney on the briefs for each side in an case. Those multiple attorneys are NOT\namicus. The usual number for this variable will be \xe2\x80\x9c0\xe2\x80\x9d since amici are not often involved in appeals\nto the Court.\n______________________\n\nappnt\n\nThis variable is the type of appellant who filed the case. This corresponds to the\n\nrespnt variable as well. Be careful to note that the first name on a case may NOT be the Appellant\nbut rather the Respondent.\n\n1 = Private Individual (This includes prisoners or convicted criminals appealing the rulings of\nthe trial court as well as citizen in civil cases. This also includes a lawyer petitioning the Court\nregarding their bar status.)\n2 = State or local official. These include sheriffs, county prosecutors, the State Auditor or the\nDirector of the Dept of Corrections.\n3 = A company or partnership doing business in Montana. This includes law firms.\n4 = Not-for-profit organization, public interest group, Indian Tribe\n5 = A representative of a class (This will be indicated by a name plus the statement \xe2\x80\x9cother similarly\nsituated.\xe2\x80\x9d)\n6 = Individual as a Representative of an Estate\n9 = not initiating party or appellant listed.\n\nAn Empirical Examination of the Business of the Montana Supreme Court | 479\n\n\x0cN.B. There may be cases/orders/Rulings of the Court that do NOT have an initiating party (appnt)\nor a responding party (respnt).\n______________________\n\ncasename\n\nThis variable is the title or name of the case. The entire case name may not appear on\n\nthe Justia front page but it will be placed on the frontmatter of the actual opinion. Examples are:\n\nJones v Smith\nMatter of WD BD\nMatter of Rules of Appellate Procedure\n______________________\n\ncite\n\nThis variable is a citation to the Court reports. This will serve as an identification\n\nnumber for each case in the data set, since each citation is unique. An example is:\n\nDA 2017MT224\n\nIt should be entered without spaces and without the letter designations \xe2\x80\x93 2017MT224. You should\ndrop the letter designation before the citation is there is one. The variable prtype below indicates\nwhere and how to code the letter designation of citations.\n\nN.B. If the citation has a total of 8 digits, e.g., 2007MT43, then the citation should be entered with\nanother digit (a ninth) preceding the two digits after \xe2\x80\x9cMT.\xe2\x80\x9d For example, the citation just indicated\nshould be coded 2007MT043.\n\nN.B. if the citation includes an \xe2\x80\x9cN\xe2\x80\x9d after it, such as 2015MT443N, then the variable \xe2\x80\x9cprec\xe2\x80\x9d needs to\nbe coded as \xe2\x80\x9c1\xe2\x80\x9d. Do not enter this variable (cite) with the \xe2\x80\x9cN,\xe2\x80\x9d but rather just enter the number with\nthe \xe2\x80\x9cMT\xe2\x80\x9d in the middle 2015MT443.\n480 | An Empirical Examination of the Business of the Montana Supreme Court\n\n\x0c______________________\n\ndecdate\n\nThis variable is the date the Court rendered its decision in each case. This date is\n\nlocated on the front page (the frontmatter) of each opinion. It is coded in the same form as strtdate\nis coded: mm/dd/yy. An example would be:\n\n04/26/17\n\nThis \xe2\x80\x9cdate\xe2\x80\x9d should be entered with slash marks (/) and with two digits for the month and the day\nof the month, and four digits for the year.\n______________________\n\ndecmnth\n\nThis variable is the month that the Court\xe2\x80\x99s decision was decided.\n\n1 = January\n2 = February\n3 = March\n4 = April\n5 = May\n6 = June\n7 = July\n8 = August\n9 = September\n10 = October\n11 = November\n\nAn Empirical Examination of the Business of the Montana Supreme Court | 481\n\n\x0c12 = December\n______________________\n\ndectime\n\nThis variable is time, measured in days, that it took the Court to decide the case. That\n\nis a calculated variable, based on the following formula:\n\nIf there is not submission date or oral argument date available, then this variable is \xe2\x80\x9cmissing\xe2\x80\x9d in the\ndata set.\n______________________\n\ndocno\n\nThis variable is the docket number of the case. The two digits before the dash is the\n\nyear in which the case was appealed to or filed with the Supreme Court. This number after the\ndash will always have four digits. These four digits are place holders unless the number actually\nreaches the thousands. Examples include:\n\n16-1403 \xe2\x80\x93 An appeal filed in 2016\n17-0014 \xe2\x80\x93 An appeal filed in 2017\n11-0037 \xe2\x80\x93 An appeal filed in 2011\n\nN.B. Docket Numbers also have a two-letter designation \xe2\x80\x93 \xe2\x80\x9cDA,\xe2\x80\x9d \xe2\x80\x9cOP,\xe2\x80\x9d \xe2\x80\x9cPR,\xe2\x80\x9d or \xe2\x80\x9cAF.\xe2\x80\x9d These should\nbe dropped from the value entered for this variable. Be certain to include the \xe2\x80\x9cdash\xe2\x80\x9d between the\ntwo-digit year and the four-digit number.\n______________________\n\nfrstct\n\nThis variable indicates the first court that heard or decided the case. It is likely to be\n\nthe District Court, but it could be a \xe2\x80\x9cJustice Court\xe2\x80\x9d or a Justice of the Peace Court.\n\n482 | An Empirical Examination of the Business of the Montana Supreme Court\n\n\x0c1 = Justice Court/Youth Court (This is a Dist. Ct. acting as the Youth Court. See the Notes in lwrct)\n2 = District Court\n3 = Montana Supreme Court (this applies to courts rules and regulations or professional\ndisciplinary actions.\n4 = Board, Commission, or specialized court such as a Municipal Court, the Water Court, or the\nWorkman\xe2\x80\x99s Compensation Court.\n\nN.B. This value is likely to be found in the early paragraphs of the opinion where the Opinion\noutlines the facts of case, either in an introductory section or in a section labeled something like\n\xe2\x80\x9cFactual Background.\xe2\x80\x9d\n\nN.B. There may no information about a Justice Court\xe2\x80\x99s action in the opinion, even if the proceeding\nhad to have originated in the Justice Court. DO NOT code this variable as a \xe2\x80\x9c1\xe2\x80\x9d unless there is\nexplicit reference to Justice Court action in the case.\n______________________\n\nlwrct\n\nThis variable is the court from which the case was appealed to the Supreme Court.\n\nMost often this will involve a District Court number. This variable should be indicated if a District\ncourt heard the case, even though it might not have originated there. See frstct.\n\n0 = This value pertains to cases that originated in the Supreme Court.\n1 = 1st Judicial District\n2 = 2nd Judicial district\n3 = 3rd Judicial District.\n\xe2\x80\xa6\n22 = 22nd Judicial District\n\nAn Empirical Examination of the Business of the Montana Supreme Court | 483\n\n\x0c30 = Montana Water Court\n40 = Montana Workers Compensation Court\n50 = Commission of Practice (This commission deals with complaints filed against lawyers.)\n60 = Other (E.g., A federal court certification of a question to the Sup. Ct. State or Local Board or\nCommission.)\n\nN.B. If frstct is designated as \xe2\x80\x9c1\xe2\x80\x9d because the District Court is acting as a Youth Court, this variable\n(lwrct) should be coded with the District Court number (as usual), rather than using the \xe2\x80\x9c60\xe2\x80\x9d\ndesignation.\nThis particular coding scheme is also relevant when a parent\xe2\x80\x99s parental rights are being considered\nor terminated by the Supreme Court. That is because the Dist. Ct. is originally acting as a Youth\nCourt to determine if the Youth is In Need of Care (YINC) and whether parental rights should be\nterminated or conditioned (limited) in some way.\n______________________\n\nnoiss\n\nThis variable is the number of issues that the Court indicates it considers. This is\n\nNOT the number the appellant presented. Usually the opinion will identify the issue(s) the Court\nconsiders in the opinion. Sometimes this variable will have to be determined by reading most or\nall of the opinion.\n______________________\n\noplngth\n\nThis variable is the length of the majority opinion, in pages that include the front\n\nmatter and are presented as 8.5 x 11 inch page size of the PDF reported in Justia. Count as the last\npage, the page on which the justices identified as supporting or concurring in the majority opinion\nare listed.\n______________________\n\nN.B. Opinions end with a typed or written signature of the writing justice and a list of those justices\nconcurring in that opinion. That may be the end of the document. That is the point from which\nthis variable should be taken. It may not be the last page of the opinion if there is a concurring\n484 | An Empirical Examination of the Business of the Montana Supreme Court\n\n\x0copinion or a dissenting opinion, that additional opinion may begin on the next page of the opinion.\nDo not count the following pages for purposes of this variable.\n______________________\n\nopwrtr\n\nThis variable indicates the name of the justice who wrote the opinion in each case.\n\nThis list is in order of seniority.\n\nThis is the code for the 2017 calendar year.\n\n2017-0 = the opinion/ruling was not signed (e.g. per curium)\n2017-1 = Chief Justice McGrath\n2017-2 = Justice Baker\n2017-3 = Justice Gustafson\n2017-4 = Justice McKinnon\n2017-5 = Justice Rice\n2017-6 = Justice Sandefur\n2017-7 = Justice Shea\n2017-8 = Michael Wheat\n\nThis is the code for the 2007 calendar year.\n\n2007-0 = the opinion/ruling was not signed (e.g. per curium)\n2007-1 = Chief Justice Gray\n2007-2 = Justice Cotter\n2007-3 = Justice Leaphart\nAn Empirical Examination of the Business of the Montana Supreme Court | 485\n\n\x0c2007-4 = Justice Morris\n2007-5 = Justice Nelson\n2007-6 = Justice Rice\n2007-7 = Justice Warner\n______________________\n\npnl\n\nThis variable is the count of Justices participating in each case. The number is usually\n\nfive (5) justices or 7 (seven) justices. However, there are times when one justice is absent. In other\ncases, district court judges are assigned to the panel if one or more of the panel justices recuses\n(removes) themselves. In a few cases there is more than one justice removed. Count each district\ncourt judge as a full, participating member of the panel.\n______________________\n\npnl2\n\nThis variable collapses pnl into two categories \xe2\x80\x93 Five and seven justice sets. The five-\n\njustice set may involve less than five justices and the seven-justice set may involve six or seven\njustices.\n______________________\n\nprec\n\nThis variable is to be coded as indicated below. The Court will decide some cases and\n\nindicate that they are decisions in the case, BUT are not to be used for precedent in other cases.\nAn example of the citation (cite) for such an opinion is 2015 MT 443N\n\nIn all such cases the first, full paragraph of the opinion in the case will begin with the sentence:\n\nPursuant to Section 1, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating Rules, the\nfollowing decision shall not be cited as precedent. . . .\n\n0 = no \xe2\x80\x9cN\xe2\x80\x9d is present in the citation (cite)\n486 | An Empirical Examination of the Business of the Montana Supreme Court\n\n\x0c1 = \xe2\x80\x9cN\xe2\x80\x9d is present in the citation\n______________________\n\nprtype\n\nThis variable is the type of proceeding the Supreme Court dealt with in each case. It\n\nis derived from the Docket Number letter designation.\n\n1 = DA (Direct Appeal)\n2 = OP (Opinion)\n3 = AF (Administrative Filing)\n4 = PR (Professional Responsibility)\n\n9 = Other (This applies when the Docket Number does not contain any letter designation at all.)\n\nN.B. If a Court case is labeled AF, then a good many of the other variables on this row of data will\nbe coded uniquely (e.g., appnt, opwrtr, respnt, subj, submtr, and type.)\n______________________\n\nrespnt\n\nThis variable is the type of responding party in the appeal. It is largely comparable to\n\nthe appnt categories. Be careful to note that the first name on a case may NOT be the Respondent\nbut rather the Appellant. Some of these categories re NOT the same as the appnt categories.\n\n1 = Private Individual (This includes prisoners or convicted criminals appealing the rulings of\nthe trial court as well as citizen in civil cases. This also includes a lawyer petitioning the Court\nregarding their bar status.)\n2 = State or local official. For example, sheriffs, county prosecutors, the State Auditor or the\nDirector of the Dept of Corrections.\n3 = A company or partnership doing business in Montana. This includes law firms.\nAn Empirical Examination of the Business of the Montana Supreme Court | 487\n\n\x0c4 = Not-for-profit organization, public interest group, Indian Tribe\n5 = representative of a class (This will be indicated by a name plus the statement \xe2\x80\x9cother similarly\nsituated.\xe2\x80\x9d)\n6 = Individual as a Representative of an Estate\n9 = no Respondent involved in this case. (This most often relates to proceedings that are titled\n\xe2\x80\x9cMatter of X X X.\xe2\x80\x9d )\n______________________\n\nresult\n\nThis variable is the outcome or the result of the Supreme Court\xe2\x80\x99s decision. This\n\nvariable will be found at or near the end of each opinion. It may be one word, easily recognized. It\nmay be contained in a paragraph.\n\n0 = Filed with Supreme Court originally (no District Court decision.)\n1 = Affirmed\n2 = Affirmed in part and reversed in part\n3 = Reversed (and remanded)\n4 = Vacated and Remanded\n5 = Adopted/Submitted for Comments (This category relates to proposed rules the Court is\nconsidering relating to the operation of the judicial system in the state. These rules may be\nSupreme Court Rules, rules relating to the District Courts, or to the practicing bar in the state.)\n6 = Dismissed (E.g., mootness or lack of jurisdiction or standing)\n7 = Denied (This largely relates to a Petition for a Writ of Habeas Corpus.)\n______________________\n\nstrtdate\n\nThis variable is the date coded as mm/dd/yy that the case was filed with the Court.\n\nThis date is located on the front page (the frontmatter) of each opinion. This is not the date the\nClerk of the Court received the filings in the appeal. It will be indicated as the date the case was\n\xe2\x80\x9cSubmitted on the briefs\xe2\x80\x9d or was Argued Orally. See decdate for an example. An example would be:\n488 | An Empirical Examination of the Business of the Montana Supreme Court\n\n\x0c04/26/17\n\nN.B. There may be no strtdate for those decisions with a docket number designated as \xe2\x80\x9cAF\xe2\x80\x99 or \xe2\x80\x9cPR.\xe2\x80\x9d\nLeave this variable blank if that is the case.\n______________________\n\nstrtmnth\n\nThis variable is the month the case was submitted to the Court for decision. It should\n\ncorrespond to the month indicated in the strtdate variable.\n\n1 = January\n2 = February\n3 = March\n4 = April\n5 = May\n6 = June\n7 = July\n8 = August\n9 = September\n10 = October\n11 = November\n12 = December\n______________________\n\nsubj\n\nThis variable indicates the nature of the question presented to the Court.\nAn Empirical Examination of the Business of the Montana Supreme Court | 489\n\n\x0c1 = substantive law\n2 = procedural issue\n3 = constitutional law\n4 = both procedure and substance\n5 = both substantive and constitutional\n6 = both procedural and constitutional\n7 = equity\n\n9 = other issue\n\nN.B. This variable will be difficult to assign if here is more than one issue identified in the case. Use\nyour best judgment.\n______________________\n\nsubmtr\n\nThis variable indicates the subject matter that is raised in the appeal. Any of these\n\nsubjects can present the Court with procedural rather than substantive questions. If subj is coded\nas procedure, then this variable can still be coded substantively.\n\n1 = contract, employment, debt, mortgage, and the like\n2 = tort, personal injury, damages for injury\n3 = property, ownership of land or items (chattels)\n4 = criminal conviction, sentencing, parole\n5 = equitable remedy/injunction/restraining order/termination of rights/dissolution of\nmarriage/youth in need of care (YINC)/\n6 = jurisdiction or other procedural issue\n490 | An Empirical Examination of the Business of the Montana Supreme Court\n\n\x0c7 = habeas corpus/post-conviction relief\n8 = Public Regulation/Policy\n\n9 = other\n______________________\n\ntype\n\nThis variable indicates the type of case involved.\n\n1 = Civil\n2 = Criminal\n3 = Other (This category relates to administrative proceedings, the declaration of a Youth in Need\nof Care (YINC), divorce decrees, or equitable remedies.)\n______________________\n\nvote\n\nThis variable indicates the size of the majority vote. This variable usually will be\n\ncoded either 5 or 7. If there is a dissent in the case, then the vote will be coded as the number of\njustices who voted in the majority. This includes concurrences since that justice voted with the\nmajority. The values below are likely to be those recorded for this variable. Others may be possible\nand should be entered.\n\n3\n4\n5\n6\n7\nN.B. There will be some cases in which one or more district court judges will be serving on the\nAn Empirical Examination of the Business of the Montana Supreme Court | 491\n\n\x0cSupreme Court. That is because one or more Supreme Court justices have recused themselves\nfrom the case. These district court judges count just the same as a Justice does for this variable.\n\nN.B. The value of this variable will be the same or less than the value for the pnl variable.\n______________________\n\nvt\n\nThis variable indicates whether the decision was unanimous and whether the\n\ndecision involved concurring opinions.\n\n0 = unanimous\n1 = not unanimous\n2 = unanimous with concurrence\n3 = not unanimous with concurrence\n4 = not unanimous with concurrence and dissent (This might be one justice \xe2\x80\x9cconcurring in\npart and dissenting in part\xe2\x80\x9d or one or more justice(s) concurring and at least on other justice\ndissenting.)\n______________________\n\nyear\n\nThis is the year the Supreme Court decided a case.\n\n2007\n2017\n______________________\n\nhttps://github.com/osuoer/open-judicial-politics/raw/master/McLauchlan-data.xlsx\n\n492 | An Empirical Examination of the Business of the Montana Supreme Court\n\n\x0cPART III\n\nDECISION MAKING\nThat forces other than \xe2\x80\x9cthe law\xe2\x80\x9d or the facts of the case affect judges\xe2\x80\x99 decisions is axiomatic. After\nall, not every decision is unanimous despite the fact that a set of highly trained, experienced,\nand attentive individuals read and hear the same arguments based on the same set of laws and\nlegal doctrines. Understanding how and why judges decide the way they do is a topic of nearly\nbottomless interest among judicial scholars, and so this section contains the largest number of\ncontributions. Most often, political scientists focus this interest on the US Supreme Court and the\ninternal machinations of the justices. Adding to this literature, we offer two studies that attack\nthis question in less conventional ways. The other seven contributions break from this mold,\nexamining state courts, district courts, and international courts. In terms of US Supreme Court\ndecision-making, each of these pieces uses textual analysis to answer a narrow question regarding\nthe behavior of the justices. Professor Adam Rutkowski derives a measure of interpretation style\nfor all the justices from 1946 through 2010. Making a distinction between such interpretation\nstyles as textualism, originalism, and progressivism, Rutkowski finds that, even while holding\nideology constant, the systematic and predictable effect of style on individual decisions in search\nand seizure cases remains significant. Professors Picado and Reid use the concept of Gilligan\xe2\x80\x99s\ndifferent voice (see either Goelzhauser or Kraybill in the Actors/Judges chapter for more on\nthis theory) to determine if gender differences between Supreme Court justices appear in their\ndecision-making. More specifically, they broaden this discussion beyond the typical gender issues\nto determine if women justices use a different voice when deciding environmental issues.\nMarrying the ecofeminism and different voice literature, and using linguistic analysis, these\nscholars find a distinct difference in the framing and tone of these opinions.\nAgain, the other offerings here examine decision-making by judges from a variety of courts. One\nsubset looks outside the United States. First, Professor Shannon Smithey examines how some\nhigh courts built their institutional power through strategic judicial action. Professor Rebecca Reid\nalso investigates judicial choices and how those choices can yield policy protections. Studying\nthe Mexican Supreme Court, Reid finds that the justices there are voluntarily increasing the\nspace on their agenda for human rights cases and providing an alternative venue for individuals\nto achieve protections for their rights. Finally, in a more traditional study of decision-making,\nProfessors Henrik Litler\xc3\xa9 Bentsen, Mark McKenzie, and Jon K\xc3\xa5re Skiple examine why Danish\nSupreme Court justices choose to dissent in a system known for its high level of consensus. While\nthe scholars investigate individual factors, case characteristics, and institutional attributes, they\nfind that the institutional norms are the strongest predictors of dissent. The other subset looks at\nUS courts other than the Supreme Court. Professors Gonzalez, Fairbanks, and Gleason continue a\ntheme already strongly present in this volume\xe2\x80\x94diversity and inclusion\xe2\x80\x94by investigating whether\nDecision Making | 493\n\n\x0cintersectional judges behave differently from their counterparts. More specifically, are these\nwomen of color more likely to display strategic voting in order to retain their seats? Analyzing\nthe decisional behavior of state Supreme Court justices, they find that intersectional judges\nare more likely to reflect public opinion in their voting when reelection or retention looms.\nFinally, Professors Johnson et al. focus on a different type of decision-making altogether\xe2\x80\x94namely,\nthe decision whether to publish an opinion or not. Scholars have already shown clearly that\nunpublished decisions are important policy-making tools; there has not been a great deal of\nattention paid to this choice, however. Johnson and her colleagues show that the decision is\naffected by individual attributes and strategic behaviors rather than ideology, which is so often the\nsole touchstone of judicial decision-making studies.\nRutkowski, Adam G. \xe2\x80\x9cConstitutional Interpretation Styles of US Supreme Court Justices.\xe2\x80\x9d\nPicado, Jonathan A., Rebecca A. Reid. \xe2\x80\x9cMother Nature, Lady Justice: Ecofeminism and Judicial\nDecision-Making.\xe2\x80\x9d\nSmithey, Shannon. \xe2\x80\x9cStrategic Activism.\xe2\x80\x9d\nReid, Rebecca. \xe2\x80\x9cHuman Rights and Court Activism in the Mexican Supreme Court.\xe2\x80\x9d\nBentsen, Henrik Litler\xc3\xa9, Mark McKenzie, and Jon K\xc3\xa5re Skiple. \xe2\x80\x9cExplaining Dissent Rates on a\nConsensual Danish Supreme Court\xe2\x80\x9d\nGonzal\xc3\xa9z, Aidan, Bailey R. Fairbanks, Shane A. Gleason. \xe2\x80\x9cAt the Intersection of Law and Identity:\nImmutable Characteristics, Voter Preferences, and Strategic Voting on State Supreme Courts.\xe2\x80\x9d\nJohnson, Susan W., Ronald Stidham, Kenneth L. Manning, Robert A. Carp. \xe2\x80\x9cTo Publish or Not\nPublish: Exploring Federal District Judges\xe2\x80\x99 Published Decisions.\xe2\x80\x9d\n\n494 | Decision Making\n\n\x0c19. Constitutional Interpretation Styles of\nUS Supreme Court Justices\nADAM G. RUTKOWSKI\n\nStudies of US Supreme Court decision-making often describe justices\xe2\x80\x99 votes (decisions) as either\nliberal or conservative. This is understandable given that a justice\xe2\x80\x99s ideology (how liberal or\nconservative they are) is consistently shown to be a significant predictor of his or her votes on\nthe Court (Segal and Spaeth 2002). While justices have their ideological preferences, they also\nhave their own unique ways of interpreting the Constitution. For example, the late conservative\nSupreme Court Justice Antonin Scalia was a textualist, believing that one should only look at the\ntext of the relevant provision when applying the Constitution to a case (Scalia and Garner 2012;\nScalia 1998). His jurisprudential and ideological opposite, the late Justice Ruth Bader Ginsburg,\nargued that interpretations of the Constitution should adapt to a changing United States (De Hart\n2018).\nWhen Justice Ginsburg wrote an opinion, she did not simply write, \xe2\x80\x9cI am a liberal, therefore I vote\nin a liberal way in this case.\xe2\x80\x9d Instead, she provided a detailed opinion in which she interpreted\nthe Constitution and relevant laws and applied that interpretation to the case; there was legal\nreasoning behind her decision. While ideology may have informed her decisions, her\ninterpretation style should not be overlooked as a distinct characteristic.\nScholars have produced numerous quantitative studies concerning the effects of ideology on US\nSupreme Court justices\xe2\x80\x99 decision-making, but there have been few, if any, quantitative analyses of\nthe effects of justices\xe2\x80\x99 constitutional interpretation styles. This shortcoming is most likely due to\nthe lack of a measure of this important concept. This chapter develops a measure of constitutional\ninterpretation style for justices serving on the Supreme Court from 1946 to 2017 and applies the\nmeasure to justices\xe2\x80\x99 votes in Fourth Amendment cases. Results suggest that these styles matter\nin predicting judicial decision-making, although their effects may be partially masked by the way\nscholars typically consider judicial decision-making and outputs.\n\nHow Do Judges Make Decisions?\nScholars have identified three primary models of judicial decision-making: legal, attitudinal, and\nstrategic. The earliest of the three, the legal model asserts that judges are neutral arbiters of the\nConstitutional Interpretation Styles of US Supreme Court\nJustices | 495\n\n\x0claw (Maveety 2003; Levi 1949). According to this model, judges decide cases in light of the facts in\nrelation to precedent (existing case law), plain meaning of the Constitution and statutes, and the\nintent of the legislative branch and Constitutional framers (Segal and Spaeth 2002).\nOver time, scholars became less satisfied with this black-and-white picture of judicial decisionmaking. Research revealed that justices consistently voted in ways that could be placed on a\nleft-right ideological spectrum (Schubert 1968; Pritchett 1948). These discoveries led to the\ndevelopment of the attitudinal model, which asserts that judges decide cases in light of the facts\nin relation to their ideological values and attitudes (Segal and Spaeth 2002). In other words, judges\ndecide cases based on their views about the relevant law and the parties in a suit (Spaeth 1972).\nTherefore, \xe2\x80\x9cprivate attitudes become public law\xe2\x80\x9d (Pritchett 1941).\nIt is important to note that law still matters in the attitudinal model. Studies show that justices\xe2\x80\x99\npreferences are constrained by precedent, judicial review, and adherence to constitutional\nprovisions when they make decisions (Bailey and Maltzman 2008; Spriggs and Hansford 2001).\nJustices\xe2\x80\x99 attitudes and the law are thus in a conditional relationship; what judges want to do is\nconstrained by what they can do under the law (Gibson 1978).\nThe idea of the constrained justice is central to the strategic model of judicial decision-making.\nWhile justices may have their own preferences, they are in a state of interdependence with their\ncolleagues and other branches of government (Epstein and Knight 1998; Murphy 1964). In order to\n\xe2\x80\x9cwin\xe2\x80\x9d the final outcome of the case, they may have to compromise in other areas, such as opinion\ncontent. Constraints on justices\xe2\x80\x99 preferences can come from sources both internal (e.g., collegial\nrelations; interbranch relations) and external (e.g., public opinion; interest groups) (Baum 1998).\nAs this discussion illustrates, one particular model of decision-making does not have all the\nanswers. Instead, it is important to combine elements of each theory to provide a more wholesale\naccount of judicial decision-making. It is from this place that this chapter proceeds\xe2\x80\x94recognizing\nthat while attitudes may be important to justices, how they view and interpret the Constitution\nalso affects their decision-making.\n\nConstitutional Interpretation Styles\nWhile seldom discussed in studies on judicial decision-making, constitutional interpretation style\nis an important and relevant judicial characteristic to consider. As this chapter will discuss in\nsubsequent sections, interpretive styles are often mentioned during the nomination and\nconfirmation process\xe2\x80\x94especially for nominations to the US Supreme Court. These styles are\npart of the public discourse about nominees and may serve as cues for both the president\n496 | Constitutional Interpretation Styles of US Supreme Court Justices\n\n\x0cand senators, helping them predict a nominee\xe2\x80\x99s future actions. Further, as discussed in the\nintroduction, interpretation styles are used as the bases for justices\xe2\x80\x99 decisions. What follows is a\nbrief overview of common interpretation styles.\nTypically, interpretation styles are described as either originalist or progressive (Tribe 1995;\nDodson 2008). The three primary originalist styles identified are original intent, textualism, and\nstrict constructionism. Original intent relies on what the framers of the Constitution intended\na clause to mean when they wrote the document (Segal and Spaeth 2002; Gillman et al. 2017).\nJustices subscribing to this method believe that the framers\xe2\x80\x99 intentions should always be\nconsidered and respected (Powell 1985; Bork 1997; Kirby 2000). Textualism relies on the text of\nthe Constitution itself. This style\xe2\x80\x94made famous by the late justice Antonin Scalia\xe2\x80\x94focuses on\nthe relationships between words and the commonly understood meanings of those words both\nat the time the Constitution was written and the present day (Perry 1985; Tushnet 1985; Scalia\n1998; Whittington 1999, 2004; Gillman et al. 2017). Finally, strict constructionism is a narrower\nform of textualism. This style limits constitutional interpretation to the clauses enumerated in the\nConstitution (Whittington 1999; Gillman et al. 2017).\nA more progressive style of interpretation treats the Constitution as a living document (Marshall\n1987; Starkey 2012). This style advocates for a Constitution that \xe2\x80\x9cadapts to changing circumstances\nand evolves over time\xe2\x80\x9d (Dodson 2008, 1320). When the Constitution is not explicit on an issue,\nclauses of the constitution and other statutes can be read to find their \xe2\x80\x9cspirit\xe2\x80\x9d; this spirit can then\nbe applied to the case. Because America changes rapidly, interpretations of a document written\nover two hundred years ago should adapt.\n\nMeasuring Constitutional Interpretation Style\nWhile scholars often describe a justice as a textualist, or believing the Constitution is a living\ndocument, no quantitative measure of interpretation style exists. The primary goal of this chapter\nis to develop such a measure. Segal and Cover (1989) measured justices\xe2\x80\x99 ideological preferences\nusing newspaper editorials in order to capture a justices\xe2\x80\x99 perceived ideology at the time of their\n1\n\nconfirmation. It is in this spirit that I set about coding constitutional interpretation style. Because\nthe editorials often quote the justices describing how they interpret the Constitution, this method\n\n1. Segal-Cover scores are sometimes criticized for being static; meaning, they do not account for\nchanges in justice ideology that may occur over time. Martin-Quinn scores (Martin and Quinn 2002)\nmeasure ideology in a way that updates justices\xe2\x80\x99 ideology scores each Court term. Indeed, some\njustices\xe2\x80\x99 preferences have been shown to evolve (Epstein et al. 2007).\nConstitutional Interpretation Styles of US Supreme Court Justices | 497\n\n\x0cprovides a direct measure of interpretation style. Further, choosing editorials provides a\nmanageable number of succinct documents written during a finite nomination period. In other\nwords, it avoids the problems of studying countless justice biographies, memoirs, and interviews.\nIn order to avoid bias from politically motivated writers, Segal and Cover (1989) used two\nnewspapers with a consistently liberal slant over time (the New York Times and the Washington\nPost) and two with a consistently conservative slant over time (the Chicago Tribune and the\nLos Angeles Times). They coded various paragraphs of editorials for statements that were either\nliberal, moderate, conservative, or none of the above. Based on the total number of editorial\nstatements, they ultimately place justices on a continuum of ideological value scores ranging from\n0 (unanimously liberal) to +1 (unanimously conservative).\nWhile my coding of interpretive style follows Segal and Cover\xe2\x80\x99s methods as closely as possible,\nsome adaptations were made. The same two liberal newspapers were coded (the New York Times\nand the Washington Post), and one of the same conservative newspapers was used (the Los Angeles\nTimes). However, the Chicago Tribune archives are not readily available electronically. Therefore, I\nused the Wall Street Journal, another conservative-leaning paper, in its place (Wagner and Collins\n2014).\nI coded five different categories of constitutional interpretation style and treated them as\ndichotomous variables. Therefore, a justice was coded as a (1) if he or she possessed a certain\nstyle and a (0) if he or she did not. The categories I use here are living document, textualist,\noriginal intent, other originalist, and progressive. Although scholars identify strict constructionism\nas an originalist constitutional interpretation style, only one justice in my study was called a\nstrict constructionist by one of the four papers. Therefore, I created the other originalist category\nfor this justice and others not fitting the rigid originalist categories. I created the progressive\ncategory to capture justices who have a progressive interpretive style but were not explicitly said\nto interpret the Constitution as a living document in the editorials.\nTo reduce bias in the coding, the following steps were taken. First, I coded newspaper editorials\nfrom the four aforementioned newspapers that were written during the time period six months\nprior to their nomination until the day of their confirmation. After coding all thirty-seven justices\nin the date range, final determinations were made using strict cutoffs. In order to ultimately be\nassigned to a style, the justice had to be coded as that style for at least three of the four papers\nused. This threshold provides a more balanced measurement, as it picks up liberal-leaning and\nconservative-leaning papers. It is also important to note that the categories are mutually exclusive.\nIn this coding framework, a justice cannot belong to more than one constitutional interpretation\nstyle. The editorials did not ascribe more than one interpretation style to any of the thirty-seven\njustices. Table 1 provides more information on my coding framework and how I made final coding\ndecisions.\n498 | Constitutional Interpretation Styles of US Supreme Court Justices\n\n\x0cFor even more clarification, consider the following coding example. In a majority of the editorials,\nJustice Scalia was described as a defender of the words of the Constitution. Additionally, he was\noften quoted as saying that judicial decisions must be guided by the Constitution\xe2\x80\x99s text. Because\nthese statements belong to the textualism category, Justice Scalia was marked as a (1) in the\ntextualist style and a (0) in the other five categories.\nInterpretation\nCommon phrases from editorials\nstyle\n\nLiving\ndocument\n\n\xe2\x80\xa2 \xe2\x80\x9c\xe2\x80\xa6believes the Constitution is a living document\xe2\x80\xa6\xe2\x80\x9d\n\xe2\x80\xa2 \xe2\x80\x9c\xe2\x80\xa6will adapt the Constitution to modern times\xe2\x80\xa6\xe2\x80\x9d\n\xe2\x80\xa2 \xe2\x80\x9c\xe2\x80\xa6does not hold a static view of how the Constitution is to be interpreted\xe2\x80\xa6\xe2\x80\x9d\n\nTextualist\n\n\xe2\x80\xa2 \xe2\x80\x9c\xe2\x80\xa6believes the Constitution should be interpreted by analyzing the words\xe2\x80\xa6\xe2\x80\x9d\n\xe2\x80\xa2 \xe2\x80\x9c\xe2\x80\xa6does not \xe2\x80\x98read-in\xe2\x80\x99 to the Constitution\xe2\x80\xa6\xe2\x80\x9d\n\xe2\x80\xa2 \xe2\x80\x9c\xe2\x80\xa6will respect the text of the Constitution when making decisions\xe2\x80\xa6\xe2\x80\x9d\n\nOriginal\nintent\n\n\xe2\x80\xa2 \xe2\x80\x9c\xe2\x80\xa6interprets the Constitution the way the Founders intended\xe2\x80\xa6\xe2\x80\x9d\n\xe2\x80\xa2 \xe2\x80\x9c\xe2\x80\xa6keeps in mind what the framers meant the Constitution to mean\xe2\x80\xa6\xe2\x80\x9d\n\nOther\noriginalist\n\n\xe2\x80\xa2 These are justices described as originalists generally, but neither textualism nor\nframers\xe2\x80\x99 intent were mentioned.\n\nProgressive\n\n\xe2\x80\xa2 These are justices said to have a progressive interpretation style; interpreting the\nConstitution as a living document was not mentioned.\n\nTable 1. Coding framework\n\nTable 2 reports each justice grouped alphabetically by their perceived preconfirmation\nconstitutional interpretation style. The number of editorials coded for each justice is included in\n2\n\nparentheses.\n\n2. Three justices\xe2\x80\x94Burton, White, and Vinson\xe2\x80\x94had unknown interpretation styles. The editorials gave\nno indication of these justices\xe2\x80\x99 interpretation styles, so a final style determination could not be\nmade. Therefore, they are excluded from this table and the statistical analysis.\nConstitutional Interpretation Styles of US Supreme Court Justices | 499\n\n\x0cLiving document Textualist\n\nOriginal intent Other originalist Progressive\n\nBlack (17)\nBrennan (18)\nBreyer (17)\nFortas (7)\nFrankfurter (9)\nGinsburg (14)\n\nAlito (14)\n\nGoldberg (10)\nHarlan (16)\nJackson (10)\nKagan (23)\nMarshall (10)\n\nBlackmun (6)\nBurger (16)\n\nKennedy (31)\n\nO\xe2\x80\x99Connor (17)\n\nGorsuch (17) Rehnquist (9)\n\nPowell (9)\n\nScalia (18)\n\nRoberts (16)\n\nStewart (10)\n\nMinton (9)\nMurphy (8)\n\nDouglas (6)\nSotomayor (19)\n\nThomas (41)\nWhittaker (4)\n\nReed (4)\nRutledge (4)\nSouter (19)\nStevens (6)\nWarren (19)\nTable 2. Justices\xe2\x80\x99 constitutional interpretation styles\n\nThe table above underscores the importance of constitutional interpretation style as a judicial\ncharacteristic; indeed, it is clear that editorials use these explicit styles to describe nominees\nto the nation\xe2\x80\x99s highest court. It is apparent that the living document category contains justices\noften considered more liberal, while the textualist, original intent, and other originalist categories\ncontain the more conservative justices. Perhaps surprisingly, the most variation in interpretation\nstyle is found in these conservative justices. While Scalia was identified as a textualist, Rehnquist\nwas matched with original intent, and O\xe2\x80\x99Connor was painted as a general originalist. All these\njustices are considered conservative, but each was said to have a distinct constitutional\ninterpretation style. The following application section speaks further to this variation among\nconservative justices.\nIt is important to remember that these categorizations were made based on editorials written\nbefore the justices\xe2\x80\x99 confirmations. It is possible that the justices shift their styles over time, or\nthat they have different styles for different issue areas. For example, Justice Hugo Black, identified\n500 | Constitutional Interpretation Styles of US Supreme Court Justices\n\n\x0cabove as a living document justice, was sometimes considered a \xe2\x80\x9cliteralist\xe2\x80\x9d\xe2\x80\x94especially in cases\nconcerning the First Amendment (Lewis 1986). My measure seeks to capture an overarching\ninterpretation style and does not account for issue-specific or temporal nuances.\n\nAn Application: Justices\xe2\x80\x99 Votes in Fourth Amendment Cases\nWith a method of measuring constitutional interpretation style in hand, the next step is to apply\nit to judicial behavior. For this initial application, I choose to analyze how justices\xe2\x80\x99 constitutional\ninterpretation styles affect their decisions in Fourth Amendment cases. My reasons for analyzing\ncases on the Fourth Amendment\xe2\x80\x94which protects citizens from unreasonable searches and\nseizures\xe2\x80\x94are twofold. First, scholars assert that Fourth Amendment cases are rarely clear-cut and\nthat justices interpret this amendment in many different ways (Amar 1994; Dworkin 1973). The\nvarying interpretations of the Fourth Amendment present on the Court make it a natural first\nissue area to explore. Second, Fourth Amendment cases were often used in seminal judicial politics\nscholarship on the attitudinal model and fact patterning models (Segal and Spaeth 2002; Segal\n1986).\nIn this application, I theorize that justices\xe2\x80\x99 constitutional interpretation styles should affect their\nvoting independently of other judicial characteristics such as ideology. How can justices with\ndifferent interpretation styles be expected to vote? In this application section, I offer hypotheses\nand corresponding theoretical explanations based on the writings of legal scholars.\n\nH1: Justices with an original intent interpretation style are more likely to vote in favor of the government\nthan textualists in Fourth Amendment cases.\n\nFourth Amendment scholars are in agreement that originalist justices should be expected to rule\nin favor of the government in disputes about searches and seizures. Amar (2000) asserts that\nthe Fourth Amendment was not meant to be a protection against warrantless or unreasonable\nsearches, but rather a protection against unspecific warrants. Other scholars agree that the\nmodern conception of unreasonable searches and seizures is \xe2\x80\x9cthe product of post-framing\ndevelopments that the Framers did not anticipate\xe2\x80\x9d (Davies 1999, 552). In this view of academics,\noriginalists should only rule against searches and seizures if the warrants are not specific.\nThe problem with this literature is that it does not distinguish between the types of originalists\nConstitutional Interpretation Styles of US Supreme Court Justices | 501\n\n\x0cidentified in the previous section\xe2\x80\x94textualism, original intent, and strict construction. These\nscholars speak of originalism broadly but do not elaborate on which specific type of originalist\nthey expect to rule in favor of the government. I surmise that they are speaking of original\nintent because they are discussing what the framers meant. These scholars assert the original\nunderstanding of the Fourth Amendment is that warrantless searches are not unreasonable; only\nnonspecific warrants are problematic.\nWhile it is clear that justices subscribing to original intent should more often vote in favor of the\ngovernment, it is less clear how textualist justices should rule. Amar (1994) asserts that there is a\ndiscrepancy between what the words of the Fourth Amendment mean and what they actually say.\nTherefore, if the original intent justices are comfortable with warrantless searches\xe2\x80\x94which is what\nscholars have identified the amendment to mean at the founding\xe2\x80\x94then textualists should consider\nwarrantless searches to be unreasonable. Textualists are more concerned about reasonableness of\nsearches and seizures, and thus should uphold protections for individuals (Amar 1994).\nThe other originalist interpretation style identified in the literature is strict construction.\nHowever, this style is rarely ascribed to justices (for further discussion, see the data and measures\nsection). As I discuss later in the paper, I create a category of \xe2\x80\x9cother-originalists.\xe2\x80\x9d These are justices\nwith a conservative interpretation style that does not fit into original intent or textualism. Because\nthis is a less precise category, formulating a theory of how they should vote is more difficult.\nTherefore, I do not include a theoretical expectation of how these justices should vote.\n\nH2: Justices with a living document or progressive constitutional interpretation style are more likely to vote\nin favor of the individual than original intent justices in Fourth Amendment cases.\n\nOpposite these conservative interpretation styles are justices with styles holding that the\nConstitution is a living document. Justices who view the Constitution in this manner are more\nlikely to read into the text to find protections for individuals and are not likely to rule in favor\nof the government (Balkin 2009; Dodson 2008). This has also been shown in Fourth Amendment\ncases. Justices with a flexible outlook on the Constitution are more likely to \xe2\x80\x9cbeef up\xe2\x80\x9d Fourth\nAmendment protections for individual plaintiffs (Amar 2000, 761).\n\nH3: A liberal justice should be more likely to vote in favor of the individual than a conservative justice.\n\n502 | Constitutional Interpretation Styles of US Supreme Court Justices\n\n\x0cBecause of the prevalence of the attitudinal model in judicial politics literature (see Lewis and Rose\n2014; Boyd et al. 2010; Segal and Spaeth 2002; and George and Epstein 1992), I include a hypothesis\nconcerning ideology. I expect that even when controlling for interpretation styles, ideology will\nstill have a significant effect. Spaeth et al. (2018, SCDB codebook) assert that ideologically liberal\ndecisions are typically those that rule in favor of the individual rather than the government. Thus\nit is expected that a more liberal justice should more often vote in favor of individuals in Fourth\nAmendment cases.\nIn the following section, I discuss the operationalization of concepts that will be utilized to test\nthese hypotheses.\n\nData and Measurement\nFor this application, I analyze the 341 Fourth Amendment cases decided by the Supreme Court\nbetween 1946 and 2017. The unit of analysis is a justice\xe2\x80\x99s vote in a particular case. The cases were\nsourced from Spaeth et al.\xe2\x80\x99s (2018) US Supreme Court database (SCDB).\nThe dependent variable employed is progovernment. The data for this variable is gathered from the\nSCDB and is a measure of whether a justices\xe2\x80\x99 decision is progovernment (conservative) or not (i.e.,\nproindividual or liberal). This dichotomous variable is coded 1 for a conservative (progovernment)\ndecision and 0 for a liberal (proindividual) decision. Of the 341 Fourth Amendment cases in the\nSCDB from 1946 to 2017, 203 were decided conservatively, and 138 were decided liberally.\nThe primary concept of interest in this chapter is constitutional interpretation style. This concept,\ndiscussed in greater detail in earlier sections, captures a justice\xe2\x80\x99s perceived preconfirmation\nconstitutional interpretation style as revealed in editorials written about the justice when he or\nshe was a nominee to the Court. This concept is indicated by five separate dichotomous variables:\noriginal intent, textualism, other originalist, progressive, and living document. As noted in the\nmeasure development section, these categories are mutually exclusive, meaning that each justice\ncan only be assigned to one of the five categories.\nThe second independent variable, ideology, is measured with Segal-Cover scores (1989) ranging\nfrom 0 (extremely liberal) to 1 (extremely conservative). As discussed earlier in the chapter, these\n3\n\nscores capture the perceived ideology of Supreme Court nominees.\n\n3. Other measures of ideology such as Martin-Quinn scores (Martin and Quinn 2002) use Bayesian\nstatistical methods to update ideology scores over time as new cases are decided. While these\nConstitutional Interpretation Styles of US Supreme Court Justices | 503\n\n\x0cPrior prosecutorial experience is included as a control variable. It is widely argued that\nbackground characteristics of judges such as prior prosecutorial experience affect case outcomes\n(Brace and Hall 1997; Ashenfelter et al. 1995; Ulmer 1961, 1973). Tate (1981) found that justices\nwho worked as prosecutors in the past vote less often in favor of individuals and more often in\nfavor of the government. This could be because the justices are accustomed to representing the\ngovernment\xe2\x80\x99s position and learn to see cases from that perspective (Tate and Handberg 1991).\nExperience is a dichotomous measure coded from information in Epstein et al.\xe2\x80\x99s (2020) US Supreme\nCourt Justices Database. This database contains a wealth of knowledge about justices\xe2\x80\x99 background\ncharacteristics. Several of these variables convey justices\xe2\x80\x99 prosecutorial experience at various\nlevels. I code a justice as (1) if they have prior prosecutorial experience at any level (local, state, or\nfederal) and (0) if they do not. In the dataset of 37 justices, 22 have prior prosecutorial experience.\n\nResults\nAs discussed in the application section, justices subscribing to original intent and general\noriginalism are expected to vote more often in favor of the government, while justices who are\ntextualists are expected to vote more often in favor of the individual. Justices who view the\nConstitution as a living document and justices with a generally progressive interpretation style\nare also expected to vote more often in favor of the individual. Further, justices with conservative\nideologies and prior prosecutorial experience are expected to vote more often in favor of the\ngovernment.\n\nscores are useful in some research settings, I choose Segal-Cover scores because they are measured\nin a similar way as my interpretation variables during the same period of time (prior to the\nnomination). While Segal-Cover scores are imperfect, they provide a measure of ideology that is\nmethodologically and temporally consistent with my independent variables of interest.\n504 | Constitutional Interpretation Styles of US Supreme Court Justices\n\n\x0cProgovernment = 1\nOriginal intent\n\nTextualism\n\nOther originalist\n\nProgressive\nLiving document\nIdeology\n\nProsecutorial experience\n\nConstant\n\nModel 1\n1.35**\n(.31)\n1.03**\n(.47)\n1.27**\n(.40)\n-.49\n(.52)\nBaseline\n-1.22*\n(.65)\n.54**\n(.27)\n-.15\n(.57)\n\nTable 3. Results of logistic regression\nNote: Table 3 reports coefficients with corresponding standard errors in parentheses. ** p \xe2\x89\xa4 .05, * p \xe2\x89\xa4 .10, N = 3,793.\nStandard errors are robust and clustered around each justice.\n\n4\n\nTable 3 presents results from a logistic regression. Remember that each interpretation style is\ntreated as a separate dichotomous variable. In the model, the living document category is held\nas the baseline, meaning that results for the interpretation styles are interpreted in relation to\njustices with this interpretation style. The results from this model suggest that subscribing to\ntextualism, original intent, or general originalism (i.e., other originalist) increases the likelihood\nof voting in favor of the government, as the coefficients for those variables are positive and\n\n4. Since ideology and interpretation style could be related theoretically, collinearity (i.e., the\ninterpretation styles being highly correlated with ideology in a way that affects the results) is\npossible in this model. Performing the variance inflation factor (VIF) diagnostic on the model\nprovides evidence that collinearity is not an issue. No variable has a VIF over 3, and the average VIF\nis less than 2. These VIFs are well below the commonly accepted maximum VIF range of 5\xe2\x80\x9310 (Ringle\net al. 2015; Hair et al. 2009).\nConstitutional Interpretation Styles of US Supreme Court Justices | 505\n\n\x0cstatistically significant at the 0.05 level. Note that the coefficients for original intent, textualism,\nand other originalist are similar in magnitude. This suggests that instead of there being variation\nbetween justices with the originalist interpretive styles, these justices form a camp and vote\nmore often in favor of the government\xe2\x80\x94even when controlling for ideology and prior prosecutorial\nexperience.\nConversely, I can surmise that justices believing the Constitution is a living document are more\nlikely to vote in favor of the individual, as expected by H2. Further, the lack of significance in the\nprogressive variable suggests that those justices vote similarly to living document justices.\nFigure 1 plots predicted probabilities of voting in favor of the government for justices with each\ninterpretation style. While the results from table 3 allow for the direction and significance of\neffects to be determined, predicted probabilities provide a more substantive way to interpret the\nregression results.\n\nFigure 1. Graph of predicted probabilities\nNote: This graph shows predicted probabilities of\nvoting in favor of the government for justices with\neach interpretation style. Ideology and prior\nprosecutorial experience are controlled.\n\nI will first consider the three originalist styles\xe2\x80\x94textualist, original intent, and other originalist. A\ntextualist justice has a 63 percent probability of voting in favor of the government in these cases.\nJustices with the other originalist style and original intent style have a 68 percent and 69 percent\nprobability of voting in favor of the government, respectively. Although textualist justices vote\nless often in favor of the government, the difference is statistically insignificant (the confidence\n\n506 | Constitutional Interpretation Styles of US Supreme Court Justices\n\n\x0cintervals overlap in the graph). Therefore, H1 is unsupported. However, it is interesting to note that\nthese interpretation styles have significant effects even when ideology is controlled.\nIt is striking to see the stark differences in how living document justices vote in relation to justices\nwith an originalist style. A justice viewing the Constitution as a living document has only a 39\npercent probability of voting in favor of the government. Further, justices with the progressive\ninterpretation style only have a 29 percent probability of supporting the government\xe2\x80\x99s position.\nTherefore, it is clear that H2 receives strong support in this model.\nMy ideology hypothesis (H3) is also supported. Table 3 conveys that a more ideologically liberal\njustice is less likely to vote in favor of the government, as indicated by the negatively signed\ncoefficient. Conversely, it can be assumed that a more conservative justice is more likely to vote\nin favor of the government. Also, it is evident that justices with prior prosecutorial experience are\nmore likely to rule in favor of the government, as the coefficient for experience is positively signed\nand statistically significant at the .05 level.\nThe results from table 3 and figure 1 show that despite legal scholars\xe2\x80\x99 purported differences in the\noriginalist constitutional interpretation styles (original intent, textualism, and other originalist),\nthese justices usually form a camp to vote in favor of the government, at least in Fourth\nAmendment cases. Likewise, living document and progressive justices form a camp and usually\nvote in favor of the individual. In sum, justices with a progressive interpretation style of the\nConstitution vote in favor of the individual, and justices with an originalist interpretation style of\nthe Constitution vote more often in favor of the government.\n\nFuture Application: Studying Supreme Court Opinions\nThis chapter developed a novel way of measuring interpretation style and applied it to Fourth\nAmendment cases. The natural place to start with an application of the interpretation style\nvariables was judicial voting. By their very nature, Supreme Court justice votes are dichotomous.\nThis dichotomy provides for clean research designs but is limited by a lack of variation. Indeed,\nthe lack of variation found among justices with originalist interpretation styles is probably due\nto the fact that the dichotomous nature of the dependent variable makes it difficult to observe\ndifferences.\nThe next step is to move past dichotomous votes and analyze the actual content of the opinions.\nOpinion language is important to consider because it reflects how the law develops, not just\nwho wins or loses. The language of these opinions becomes precedent and is used in rationales\nof future court decisions in both federal trial and appellate courts. Differences in originalist\nConstitutional Interpretation Styles of US Supreme Court Justices | 507\n\n\x0cinterpretation styles may shine more easily through the language used by these justices when they\nwrite opinions. I illustrate this possibility in the following anecdotal example.\nConsider Bertine v. Colorado (1987), a case decided 7\xe2\x80\x932 by the Rehnquist Court. Chief Justice\nRehnquist, identified as an original intent justice in editorials, authored the conservative-leaning\nmajority opinion. In the opinion, he asserts that reasonable searches are acceptable even without\na warrant. This interpretation is similar to Amar\xe2\x80\x99s (1994, 2000) expectation of how original intent\njustices should interpret the Fourth Amendment. Now consider Murray v. United States (1988),\na case decided 4\xe2\x80\x933 by the Rehnquist Court. Justice Scalia, a known textualist, wrote the\nconservative-leaning majority opinion. In his writing, he places controlling weight on the words\nof the Fourth Amendment and decides that the words of the disputed policy supported the\ngovernment\xe2\x80\x99s claims. It is important to note that Scalia joined the majority opinion written by\nRehnquist, and Rehnquist joined the majority opinion written by Scalia. So although they both\nagreed on the outcome of each case, they each used different language and arguments to form\ntheir conclusions. These different arguments can form the basis of rationales used by other judges\nand justices in the future.\nThe challenge with studying interpretation styles via opinions is coming up with a systematic\nway of analyzing them. Text analysis software would have to be used, and key words related to\nthe interpretation styles would need to be developed. Once the key word lists were developed,\nsoftware could automatically analyze the opinions to find those particular words. I leave this\nmention of studying opinion texts as food for thought and encourage scholars to pursue this\nresearch path.\n\nDiscussion and Conclusion\nThis chapter developed a measure capturing Supreme Court justices\xe2\x80\x99 perceived, preconfirmation\nconstitutional interpretation styles. The primary styles identified were original intent, textualism,\nand viewing the Constitution as a living document. With the interpretation style variables in hand,\nthe chapter applied them to justice voting in Fourth Amendment cases to discover whether these\ninterpretation styles affect justices\xe2\x80\x99 votes.\nThe styles did matter, but not in the ways expected for this particular Fourth Amendment\napplication. No variation was found among the voting of textualist and original intent justices;\ninstead, each consistently voted in favor of the government. This runs contrary to Amar\xe2\x80\x99s (1994,\n2000) and others\xe2\x80\x99 expectations of variation. Thus there seems to be a discrepancy between\nlegal scholars\xe2\x80\x99 arguments and the realities of Fourth Amendment case voting. However, the\n\n508 | Constitutional Interpretation Styles of US Supreme Court Justices\n\n\x0cconstitutional interpretation style variables were consistently significant in the models,\nsuggesting that they affect decision-making independently of ideology.\nOn the other hand\xe2\x80\x94and perhaps unsurprisingly\xe2\x80\x94justices who view the Constitution as a living\ndocument ruled more often in favor of the individual compared to the originalist styles. Although\njustices seem to divide themselves into simple progovernment/proindividual voting camps, I think\nfurther consideration of the effects of constitutional interpretation style is warranted.\nOne method of considering these effects further could be to apply the style variable to another set\nof cases. For example, maybe all hypotheses would be supported in First Amendment cases of the\nSupreme Court. This amendment may allow the hypothesized variation between textualists/other\noriginalists and original intent justices to be seen. While it is beyond the scope of this chapter to\nexplore this possibility, this suggestion provides an interesting avenue for future research.\nAnother factor probably masking variation is the dichotomous nature of the dependent variable.\nStudying votes does not take into account the actual language of the opinions. Opinion language\nis important to consider because it reflects how the law develops, not just who wins or loses.\nThe section above highlights the importance of considering opinion language by highlighting two\nparticular cases. The anecdotal evidence provided there could be a cue that it is time to reconsider\nthe black-and-white dichotomy of voting and analyze whether justices with different conservative\nconstitutional interpretation styles are writing opinions in different ways.\nFuture work should also consider more sophisticated ways to measure interpretation styles. Just\nas Martin and Quinn (2002) sought to provide a dynamic measure of ideology that improved\nupon Segal and Cover\xe2\x80\x99s (1989) static scores, it seems plausible that a similar development could\nhappen for interpretation styles. While the strategy of coding interpretation style outlined in this\nchapter is useful, it is limited by the fact that it reflects the perceived interpretation style at\nthe time of their nomination to the Supreme Court. It does not take into account issue-specific\ndifferences or changes that can occur over time. While a daunting task, having a dynamic measure\nof interpretation style would be incredibly beneficial for further understanding Supreme Court\nbehavior.\nOverall, this chapter provides a measure of constitutional interpretation style that can be applied\nto many issue areas and many areas of judicial behavior. It is important to note that this is only the\nstarting point on a long road to understanding how justices\xe2\x80\x99 views of the Constitution affect their\nbehavior. The interpretation measure and the application presented in this chapter provide useful\nfirst steps toward this worthy task.\n\nConstitutional Interpretation Styles of US Supreme Court Justices | 509\n\n\x0cStudent Activities\n1. This chapter addresses the importance of considering aspects of both the legal and\nattitudinal models in studies on judicial decision-making. The component of the legal model\naddressed is constitutional interpretation style. Justice ideology was included to account for\nthe attitudinal model. In a one- to two-page essay, compare and contrast constitutional\ninterpretation style and ideology. Further, discuss how these two concepts affect each other.\nDoes judicial ideology influence interpretation style, or does judicial interpretation style\ninfluence ideology? Justify your response with both academic sources and practical\nexamples.\n2. Refer to the section entitled \xe2\x80\x9cFuture Application: Studying Supreme Court Opinions.\xe2\x80\x9d This\nsection highlights the importance of considering interpretation styles in the context of\nopinion content but recognizes the challenges this would present. In small groups, develop a\nresearch plan that allows for systematic analysis of opinion content that could help reveal\neffects of constitutional interpretation style. What \xe2\x80\x9ctools\xe2\x80\x9d would a researcher need to\ncomplete this task? How long might such a project take? What are some challenges of such a\nproject? What could make these challenges easier to overcome?\n\nReferences\nAmar, Akhil Reed. 1994. \xe2\x80\x9cFourth Amendment First Principles.\xe2\x80\x9d Harvard Law Review 107 (4): 757\xe2\x80\x93819.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2000. The Bill of Rights: Creation and Reconstruction. New Haven, CT: Yale University Press.\nAshenfelter, Orley, Theodore Eisenberg, and Stewart J. Schwab. 1995. \xe2\x80\x9cPolitics and the Judiciary:\nThe Influence of Judicial Background on Case Outcomes.\xe2\x80\x9d Journal of Legal Studies 24 (2): 257\xe2\x80\x9381.\nBailey, Michael A., and Forrest Maltzman. 2008. \xe2\x80\x9cDoes Legal Doctrine Matter? 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Walker, Nancy Staudt, Scott Hendrickson, and Jason Roberts. 2020. \xe2\x80\x9cThe\nUS Supreme Court Justices Database.\xe2\x80\x9d September 19, 2020. http://epstein.wustl.edu/research/\njusticesdata.html.\nGeorge, Tracey E., and Lee Epstein. 1992. \xe2\x80\x9cOn the Nature of Supreme Court Decision Making.\xe2\x80\x9d\nAmerican Political Science Review 86 (2): 323\xe2\x80\x9337.\nGibson, James L. 1978. \xe2\x80\x9cJudges\xe2\x80\x99 Role Orientations, Attitudes, and Decisions: An Interactive Model.\xe2\x80\x9d\nAmerican Political Science Review 72 (3): 911\xe2\x80\x9324.\nGillman, Howard, Mark A. Graber, and Keith E. Whittington. 2017. American Constitutionalism. Vol.\n2, Rights and Liberties. 2nd ed. Oxford: Oxford University Press.\nHair, Joseph F., Jr., William C. Black, Barry J. Babin, and Rolph E. Anderson. 2009. Multivariate Data\nAnalysis. 7th ed. 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Supreme Court Database, Version 2017, Release 1.\nhttp://supremecourtdatabase.org.\nSpriggs, James E., III, and Thomas Hansford. 2001. \xe2\x80\x9cExplaining the Overruling of US Supreme Court\nPrecedent.\xe2\x80\x9d Journal of Politics 63:1091\xe2\x80\x93111.\nStarkey, Brando Simeo. 2012. \xe2\x80\x9cA Failure of the Fourth Amendment & Equal Protections\xe2\x80\x99 Promise:\nHow the Equal Protection Clause Can Change Discriminatory Stop and Frisk Policies.\xe2\x80\x9d Michigan\nJournal of Race and Law 18:131\xe2\x80\x9387.\nTate, C. Neal. 1981. \xe2\x80\x9cPersonal Attribute Models of the Voting Behavior of U.S. Supreme Court\nJustices: Liberalism in Civil Liberties and Economics Decisions, 1946\xe2\x80\x931978.\xe2\x80\x9d American Political\nScience Review 75:355\xe2\x80\x9367.\nTate, C. Neal, and Roger Handberg. 1991. \xe2\x80\x9cTime Binding and Theory Building in Personal Attribute\nModels of Supreme Court Voting Behavior, 1916\xe2\x80\x931988.\xe2\x80\x9d American Journal of Political Science\n35:460\xe2\x80\x9380.\nTribe, Laurence H. 1995. \xe2\x80\x9cText and Structure Seriously: Reflections on Free-Form Method in\nConstitutional Interpretation.\xe2\x80\x9d Harvard Law Review 108 (6): 1221\xe2\x80\x93303.\nTushnet, Mark V. 1985. \xe2\x80\x9cA Note on the Revival of Textualism in Constitutional Theory.\xe2\x80\x9d Southern\nCalifornia Law Review 58:683\xe2\x80\x93700.\nUlmer, S. Sidney. 1961. \xe2\x80\x9cPublic Office in the Social Background of Supreme Court Justices.\xe2\x80\x9d\nAmerican Journal of Economics and Sociology 21 (1): 57\xe2\x80\x9368.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 1973. \xe2\x80\x9cSocial Background as an Indicator to the Votes of Supreme Court Justices in Criminal\nCases: 1946\xe2\x80\x931956 Terms.\xe2\x80\x9d American Journal of Political Science 17:622\xe2\x80\x9330.\nWagner, Michael W., and Timothy P. Collins. 2014. \xe2\x80\x9cDoes Ownership Matter? The Case of Rupert\nMurdoch\xe2\x80\x99s Purchase of the Wall Street Journal.\xe2\x80\x9d Journalism in Practice 8 (6): 758\xe2\x80\x9371.\nWhittington, Keith E. 1999. Constitutional Interpretation: Textual Meaning, Original Intent, and\nJudicial Review. Lawrence: University Press of Kansas.\nConstitutional Interpretation Styles of US Supreme Court Justices | 513\n\n\x0c\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2004. \xe2\x80\x9cThe New Originalism.\xe2\x80\x9d Georgetown Journal of Law and Public Policy 2:599\xe2\x80\x93613.\n\n514 | Constitutional Interpretation Styles of US Supreme Court Justices\n\n\x0c20. Mother Nature, Lady Justice\nEcofeminism and Judicial Decision-Making\nJONATHAN A. PICADO AND REBECCA A. REID\n\nMany theories of gendered judicial decision-making can be traced back to Carol Gilligan\xe2\x80\x99s (1982)\ndifferent voice theory. Gilligan (1982) finds that women tend to define themselves within a\ncommunity of relationships while men define themselves as separate and autonomous. Because\nwomen view themselves as linked to others, different voice theory suggests that women tend\nto prioritize justice as an \xe2\x80\x9cethics of care,\xe2\x80\x9d focusing on interpersonal relationships, emphasizing\nempathy and compassion, and acknowledging interdependence across community members.\nMen, on the other hand, prioritize justice as viewed through individualism, autonomy, rights, and\nrules. This difference in conceptions of justice suggests that women may perceive and apply the\nlaw differently from their male peers, especially since the law frequently adjudicates between\n1\n\nmoral dilemmas, such as reconciling competing rights. As such, women should engage with law\ndifferently and develop their own feminine jurisprudence compared to their male peers (Sherry\n1986).\nYet despite its reliance on different voice theory as the basis for possible gender differences,\n2\n\njudicial scholarship has largely avoided engaging with feminist theories. This omission has left\njudicial theories of gendered decision-making underdeveloped, and it potentially reinforces\n3\n\nharmful essentialist\n\nstereotypes of women. In addition, judicial scholarship\xe2\x80\x99s emphasis on\n\npositivist, quantitative methodology has also severely limited its ability to evaluate different voice\ntheory by forcing scholars to focus on case outcomes and judge votes, rather than the qualitative,\ncontextual, and linguistic analyses required. Feminine jurisprudence may not directly align with\ncase outcomes, judge votes, or traditional liberal-conservative judge ideologies. Different voice\ntheory, for example, asserts that women make decisions differently from their male peers, not\n\n1. Women may also perceive and apply the law differently from their male peers due to their history of\nexclusion and disenfranchisement, which ensured that their perspectives were omitted from the\ndevelopment of the law and political systems.\n2. But see Kraybill, \xe2\x80\x9cWomen of SCOTUS: An Analysis of the Different Voice Debate,\xe2\x80\x9d in this volume.\n3. Essentialism refers to the belief that these gender differences are due to inherent or intrinsic\ndispositions of men/women. Essentialist stereotypes thus assume that all women/men behave\nsimilarly and in a fixed manner, thereby ignoring heterogeneity within genders, social contexts, and\ngender fluidity.\nMother Nature, Lady Justice | 515\n\n\x0cnecessarily that the decisions will be different in terms of outcome. Focusing solely on quantitative\n4\n\noutcome differences thus misses the crux of this theory.\n\nThis limited theoretical engagement and reliance on quantitative measures are likely why judicial\nscholarship finds mixed results in gendered decision-making. For example, Johnson et al. (2008)\nfind that women are more sympathetic to civil liberties claimants. However, Walker and Barrow\n(1985) find no significant difference in women judges\xe2\x80\x99 decision-making when compared to their\nmale colleagues in civil rights claims, though women appear to be more sympathetic to economic\nregulation (see also Segal 2000). Kritzer and Uhlman (1977), Gruhl, Spohn, and Welch (1981),\nGottschall (1983), and Davis (1986) do not find any significant differences in the voting behavior\nof male and female judges. Yet Boyd et al. (2010) and Haire and Moyer (2015) find that women\njudges vote differently from their male peers in sex discrimination cases, and Songer, Davis, and\nHaire (1994) show significant differences between men and women in cases involving employment\ndiscrimination.\nIn this chapter, we incorporate ecofeminism into gendered judicial decision-making. Ecofeminism\nbuilds upon feminist theories such as different voice theory by expanding the conceptualization\nof women\xe2\x80\x99s issues and ethics of care to include not only communities of people but communities\nwithin an ecological system. Ecofeminism offers novel insights that source potential gender\ndifferences to their roles within communities and ecological systems and offers more explicit\npredictions for gendered decision-making that apply to previously unaddressed areas of law:\nenvironmental cases. We qualitatively evaluate the implications of ecofeminist theory on judicial\ndecision-making in environmental cases before the US Supreme Court. By linguistically analyzing\na set of solo-authored dissenting opinions, we evaluate whether women authors differ in their\nlanguage, attitudes, and framework pertaining to environmental issues compared to their male\npeers. In the following sections, we discuss ecofeminism and how it applies to judicial decisionmaking. We then offer the results of our qualitative analyses and some concluding remarks.\n\nEcofeminism\nEcofeminism serves as a theory where feminist thought meets ecological interdependence (Mies\n\n4. However, Sherry (1986) qualitatively analyzes differing votes between Justice O\xe2\x80\x99Connor and Chief\nJustice Rehnquist, who frequently voted in similar ways due to ideological alignment, in\nEstablishment Clause cases and discrimination cases to show that Justice O\xe2\x80\x99Connor was more likely\nto adopt a community-oriented approach and often favored the well-being of the community over\nindividual rights when compared to her male colleague, Chief Justice Rehnquist.\n516 | Mother Nature, Lady Justice\n\n\x0cand Shiva 2014). Ecofeminism highlights the relationship between the exploitation and domination\n5\n\nof nature with patriarchal societies\xe2\x80\x99 exploitation and domination of women, where both are\nrooted in socially constructed dichotomies that maintain existing power structures (Mies and\nShiva 2014). These dichotomies\xe2\x80\x94man versus woman, nature versus society, civilization versus\nprimitive nature\xe2\x80\x94are derived from Western colonialism (Mack-Canty 2004). Western colonialism,\nwhich is fundamentally dependent upon environmental and labor exploitation, created the\ninstitutional\n\nstructures\n\nfor\n\noppression,\n\nracialization,\n\nmisogyny,\n\nindigenous\n\nerasure,\n\nheteronormativity, and poverty (Mack-Canty 2004; Tuck and Yang 2012; Gruen 1992).\nFor example, the nature versus culture dichotomy is a central tenet of most Western ideologies,\nwhere \xe2\x80\x9ccivilized\xe2\x80\x9d man is seen as having complete domination over \xe2\x80\x9cuncivilized\xe2\x80\x9d or primitive nature\n(Mack-Canty 2004; Lahar 1991). Indeed, this tenet was the foundation for colonialism, where legal\n6\n\njustifications such as terra nullius enabled Western (White) expansion and legal appropriation\nof \xe2\x80\x9cunoccupied\xe2\x80\x9d lands because the \xe2\x80\x9cprimitive\xe2\x80\x9d Indigenous Peoples on those lands were deemed\nto be part of nature\xe2\x80\x94that is, they were part of the flora and fauna to be extracted or exploited.\nColonialism was further mandated by capitalism, which requires the perpetual extraction of\nresources in order to generate profits; this discourse directly informed the development of\nclassical liberalism (Mack-Canty 2004). The necessary spread of \xe2\x80\x9ccivilization,\xe2\x80\x9d and thus capitalism,\nmandated and justified colonization and the exploitation of the environment, which holds value\nsolely as a provider of resources for economic gain.\nEnvironmental extraction became the key to promoting and funding Western colonization,\nwhereby extraction became a powerful form of domination and control\xe2\x80\x94both internally and\nabroad. For instance, internal colonization requires the management of people, land, flora, and\nfauna within the domestic borders of the colonial nation to generate wealth, which is derived from\nland. There, labor must be extracted in order to \xe2\x80\x9cdevelop\xe2\x80\x9d the land (Tuck and Yang 2012). These\nrequirements gave rise to the enslavement of African and Indigenous Peoples (Spiegel 1996; Baptist\n2014; Dunbar-Ortiz 2015; Res\xc3\xa9ndez 2017), as well as current modes of control such as policing,\nsegregation, criminalization, and minoritizing (Tuck and Yang 2012). Western colonization impacts\ninternational communities in that many nations in the Global South who rely on agricultural and\nmineral exports are subjected to pressures from Western nations in the Global North such that\nthey are incentivized (i.e., forced) to become monoculture industries to satisfy Western demands\nfor imported resources (Lahar 1991). The transition to monoculture prompts a developing country\nto abandon centuries-old, sustainable practices to satisfy the desires of Western nations, such\nas being required to use genetically modified seeds to produce the \xe2\x80\x9cideal\xe2\x80\x9d crop, a crop that\n\n5. Patriarchy refers to the social and political systems in which men hold primary power and from\nwhich women are largely excluded, disenfranchised, subordinated, and/or oppressed\n6. Terra nullius is land that is legally determined or deemed to be unoccupied or uninhabited.\nMother Nature, Lady Justice | 517\n\n\x0ccan eliminate native crop species. Becoming dependent on lithium mining, which eradicates\nclean water supplies, causing mass animal deaths and wreaking havoc on ecosystems, is another\nexample of this forcible imposition of resource demand. Furthermore, this relationship\ncontributes to colonization: these nations in the Global South internalize Western beliefs, viewing\nnatural resources as a commodity, valued only in terms of extractable units to be exploited, and\nthe associated value systems (Lahar 1991).\nAnother effect of Western colonization and capitalism is that these systems designate which\nforms of labor are valuable (i.e., those that are profit-generating), tie the value of people to\ntheir economic use (i.e., their ability to generate profit), and delegate gendered (and racialized)\nroles of labor whereby certain groups of people are relegated to particular forms of labor. More\nspecifically, because the tenets of Western colonization place women as closer to nature and thus\nmore \xe2\x80\x9cprimitive,\xe2\x80\x9d they are relegated to the \xe2\x80\x9cprimitive\xe2\x80\x9d domestic work. This work largely consists\nof care-related activities, such as caring for family by cooking nutritious foods, creating safe and\nclean households, maintaining the health of family members, raising and educating children, and\nso on. Women are given similar roles within communities, as well; both family and community\nwell-being are directly dependent upon the environment, as it provides the materials for food,\nwater, housing, clothing, and medicine. These forms of labor are not directly profit-producing,\nwhich renders women of lower value in capitalist societies (MacGregor 2004). This devaluation of\nwomen causes a significant increase in violence against women (Shiva 1989), higher rates of female\ninfanticide (Lahar 1991), and other female mortality risks (Mack-Canty 2004). Similarly, policies\nrelated to \xe2\x80\x9cwomen\xe2\x80\x99s issues,\xe2\x80\x9d such as education and health care, are devalued relative to the more\n7\n\nmasculine policy areas of national security and economy.\n\nBased on these critiques, ecofeminism seeks to alter discourse and sociopolitical practices to\nemphasize the value of women and the environment interdependently. Specifically, ecofeminism\nadvocates for the adoption of an ecological civic virtue that stems from women\xe2\x80\x99s societal\nstandards of care\xe2\x80\x94or a politicized ethic of care (Curtin 1991). Care ethics emphasize the notion\nthat women are the individuals \xe2\x80\x9cwho do the caring, nurturing, and subsistence work that sustains\nhuman life\xe2\x80\x9d (MacGregor 2004, 58). This \xe2\x80\x9cbarefoot epistemology\xe2\x80\x9d states that women\xe2\x80\x99s \xe2\x80\x9cways of\nknowing\xe2\x80\x9d are inherently tied to life-affirming activities; therefore, women\xe2\x80\x99s relation to nature,\nthrough their labor, is drastically different than men\xe2\x80\x99s (MacGregor 2004). Women are more\n\n7. Ecofeminism also highlights how the spread of Western colonization disseminated sociopolitical\nnarratives that dictate political priorities and create false dichotomies between issues, where\npolitical goals and priorities are treated as trade-offs rather than complementary (Lahar 1991). For\nexample, politicians may argue that it is more important to invest in the economic system rather\nthan investing in environmental sustainability or health care, as though these areas cannot be\nsimultaneously pursued.\n518 | Mother Nature, Lady Justice\n\n\x0cconcerned with issues of survival rather than power, unlike men, which is directly dependent\nupon the environment (MacGregor 2004). Women have a higher epistemic awareness of survival\nand protection of life; therefore, women are more inclined to protect natural resources for\nthe continued survival of their families and communities (MacGregor 2004). Consequently,\necofeminism suggests that women have a stronger ethical approach to the survival of the\nenvironment, as their relation to nature is fundamentally different from that of men (Salleh 2017).\n\nEcofeminism and Judicial Decision-Making\nEcofeminism helps to bridge different voice theory and ethics of care feminist theories into\nenvironmental case law and judicial decision-making. Ecofeminism suggests that women exhibit\nhigher awareness of survival and prioritize the protection of life; therefore, women have a stronger\nmoral approach to the survival of the environment as their relation to nature is fundamentally\ndifferent from that of men (Salleh 2017; MacGregor 2004). More specifically, because the economic\ndivision of labor places women in domestic, caregiving, and \xe2\x80\x9cprimitive\xe2\x80\x9d sustenance-providing\nroles that are closer to nature (such as through the provision of food and water, caregiving via\nmotherhood and extended family/community, and ensuring family/community health, safety,\nand nutrition), women experience the environment more directly and are more aware of their\ninterdependence and reliance upon (a healthy) environment. Men, on the other hand, largely\nview themselves as separate from the environment and responsible for the \xe2\x80\x9cdevelopment\xe2\x80\x9d of\nenvironmental resources to generate wealth. As such, a woman judge should exhibit different\nresponses to environmental issues compared to their male counterparts. We expect women\njudges to differ from men in their discussion of environmental cases, where women are more\nlikely to (1) address the interdependence and interactions between humans and nature, (2) view\nenvironmental risk as more serious, long-lasting, and detrimental, (3) prioritize an ethics of care\nform of justice that values sustainability and sustenance, and (4) rely on legal theories that justify\nand mandate government intervention and oversight to protect the environment. We expect men\njudges to be more likely to (1) discuss people and society as separate and autonomous from nature,\nespecially where people (men) are viewed as superior to nature, (2) minimize environmental risk,\n(3) prioritize economic endeavors and emphasize potential economic loss, (4) rely on legal theories\nlimiting government power in order to avoid environmental restrictions and oversight. Table 1\nsummarizes these expectations.\n\nMother Nature, Lady Justice | 519\n\n\x0cMen\n\nWomen\n\nHumans treated as separate, distinct, autonomous,\nand superior to nature\n\nHumans treated as interdependent and reliant upon\nnature\n\nEnvironmental risk perceived as lower\n\nEnvironmental risks perceived as greater\n\nPrioritizes economy\n\nPrioritizes sustainability and sustenance\n\n\xe2\x80\xa2 Views environment profit-producing resource\n\xe2\x80\xa2 Emphasizes potential economic loss through\nenvironmental protections\n\xe2\x80\xa2 Focuses on the rights of businesses\n\xe2\x80\xa2 Wealth treated as common good\nRelies on legal theories limiting government power\nin order to avoid environmental restrictions and\noversight\nTable 1:\n\n\xe2\x80\xa2 Views environment as life-sustaining\n\xe2\x80\xa2 Emphasizes long-term quality of life and health\nthrough environmental protections\n\xe2\x80\xa2 Focuses on the rights of family and community\n\xe2\x80\xa2 Nature treated as common good\nRelies on legal theories justifying government\nintervention, restriction, and oversight of\nenvironmental policies\n\nExpectations of ecofeminism in judicial decision-making\n\nBefore turning to data and methods, we want to emphasize that we do not argue that women\njudges themselves identify with ecofeminism or view themselves as ecofeminists. Rather, we\nsuggest that women judges, as women, have a different relationship with nature than their male\ncounterparts because of their social and economic attribution as caregivers and providers of\nsustenance within and across family units and communities. These life-affirming and sustaining\nroles given predominantly to women make them more directly aware of their dependence on\nnature. Thus it is women\xe2\x80\x99s unique, prescribed relationship with the environment, rather than\n8\n\nanything ontologically inherent about womanhood, that causes this difference between men and\nwomen. In other words, it is the social and economic designation of women to these caregiving\nand sustenance roles that causes the expected gender differences.\nWe also want to note that ecofeminism acknowledges that there are differences among women\nand the forms of oppression women experience (Mack-Canty 2004). Women in the Global North\nand Global South likely differ in their relationships with nature and the environment. Similarly,\nwomen of color and indigenous women differ in their relationship with nature relative to white\nwomen. While these variations\xe2\x80\x94among others such as wealth, motherhood, religion, and so\non\xe2\x80\x94are certainly expected to exist, we cannot evaluate these differences, since our data include\nonly the four women on the US Supreme Court.\n\n8. Ontology refers to the philosophical study of being and existence. By arguing that there is no\nontological difference between genders, we assert that there is nothing essential, necessary, or\ndeterminate about gender. In other words, women are not inherently closer to nature due to some\nessential quality about their woman-ness (and vice versa).\n520 | Mother Nature, Lady Justice\n\n\x0cData and Methods\nWe test our theory of ecofeminism in judicial decision-making by qualitatively analyzing dissenting\nopinions written by justices of the US Supreme Court in environmental cases. A qualitative analysis\nenables analyzing social phenomena through an interpretivist epistemology so as to allow for a\ndeeper understanding of social behavior and structural relations (Webley 2010) and offers a more\ndetailed, contextual analysis (Kritzer 2009). Not only are qualitative analyses capable of testing\ncausal and descriptive inferences and producing valid results (King, Keohane, and Verba 1994), but\na qualitative, linguistic approach is the most appropriate method of evaluation of ecofeminism,\nwhich is based on an epistemology emphasizing multiple, dynamic understandings of knowledge\nand value.\nLinguistics and concept formation can draw connections between women and nature.\nWittgenstein (1953) argues that concept formation can be analyzed by the way an individual\nuses language to discuss themselves and the world around them. In most cultures, language\nis critical in perpetuating a sexist-naturist dialogue that sees women and nonhuman nature as\nless than men (Mack-Canty 2004). Specifically, the English language promotes naturalizing and\nanimalizing women by comparing them to certain animals or parts of nature that are already\nviewed to be inferior to men (Adams 1990). For example, women can be referred to as bitches,\nchicks, queen bees, snakes, pets, bunnies, pigs, cows, and social butterflies; however, men are\nusually referred to as animals that are not similarly exploited (e.g., lions, wolves, tigers, eagles).\nThe English language also feminizes nature as Mother Nature, while many nation-states and\ncivilizations are masculinized as Fatherlands or father states, patriotism (derived from Greek and\nLatin words for father), and ancestral forefathers. Several English words are applied equally to\nwomen and nature, such as fertile, virginal and untouched, and wild, where both nature and\nwomen must be controlled, guided, and dominated by man in order to properly develop into their\npotential value\xe2\x80\x94while simultaneously offering both a reprieve and recreation for man. Hence the\nway we talk about ourselves and the world around us matters. Language formation and cultural\nformation work to perpetuate patriarchal domination of women and nature by incorporating\nlanguage that feminizes nature and naturalizes women (Adams 1990). Language also harbors these\nconceptualizations of relationships and hierarchies that may not otherwise be directly observable.\nIn order to test these linguistic components of ecofeminist theory, we qualitatively analyze the\nlanguage of dissenting opinions from the US Supreme Court. We use dissenting opinions for two\nreasons: (1) dissenting opinions are not binding law, so justices have more freedom to express\nthemselves (Wahlbeck et al. 1999), and (2) dissenting opinions require less negotiation and\n\nMother Nature, Lady Justice | 521\n\n\x0ccompromise than majority opinion decisions, so dissents should have a more centralized voice of\n9\n\nthe author to compares women and men\xe2\x80\x99s voices.\n\nUsing Westlaw, we pulled all environmental cases with dissenting opinions from 1973 to 2010. Of\nall environmental cases decided during this time period, there were a total of fifty-seven available\ndissenting opinions, with fifty dissents authored by men and the remaining seven dissents\nauthored by women. From this population of dissents, we sought to ensure representation of all\nthe women (as there are only seven total dissents authored by women) and selected a random\nsample from male-authored dissents. Of the seven women-authored dissents available, none\nwere authored by Justice Sotomayor. Justice O\xe2\x80\x99Connor had only one dissent: a short paragraph\n10\n\nsummarily agreeing with Justice Scalia in Pennsylvania v. Union Gas Co (1989),\n\nand the majority\n\nof female dissents were written by Justice Ginsburg. Justice Kagan had only one dissent as well,\nwhich was joined by Justices Ginsburg, Sotomayor, and Breyer (in Michigan v. EPA). We include\nthis dissent, despite the possibility for influence by other justices, because it reflects a majority\nof women on the Court. Omitting this dissent would effectively silence Justice Kagan, as author,\nand the other women (and Justice Breyer) joining her. For the male-authored dissents, we selected\na random sample of the fifty available dissents in Westlaw. This random sample includes dissents\nfrom Justices Stevens, Scalia, Powell, Roberts, Douglas, and Marshall.\n11\n\nHence we examine a total of nine dissenting opinions authored by men and women justices.\n\nJustice Ginsburg authored two dissenting opinions, and the remaining seven dissenting opinions\nare authored by Justices Kagan, Scalia, Stevens, Powell, Roberts, Douglas, and Marshall (with one\ndissent each). The limited female-authored dissents reflect the low number of women represented\non the US Supreme Court and their relatively recent appointment to the Court (with the first\nfemale justice appointed in 1981). Yet comparing their dissenting language to their male dissenting\ncounterparts enables a preliminary evaluation of whether gender differences aligning with\necofeminism appear at the nation\xe2\x80\x99s highest court.\n\n9. While some dissents are coordinated and written by multiple justices, we assert that this level of\nnegotiation is not required (unlike majority opinions) and less likely to occur.\n10. See appendix for text of Justice O\xe2\x80\x99Connor\xe2\x80\x99s dissent.\n11. This sample represents 18 percent of the total number of written dissenting opinions in\nenvironmental cases during this time frame.\n522 | Mother Nature, Lady Justice\n\n\x0cResults\nWe first evaluate the dissents written by women justices, followed by qualitative analyses of\ndissents authored by men justices on the US Supreme Court.\n\nJustice Elena Kagan\nIn Michigan, et al. v. Environmental Protection Agency, et al., 576 U.S. __ (2015), pertaining to\nthe Environmental Protection Agency\xe2\x80\x99s (EPA) regulation of power plants, Justice Kagan filed a\ndissenting opinion, joined by all the other women on the court (and Justice Breyer), which argues\nthat the environmental risk was greater than that perceived by the men in the majority opinion\nand argues in support of governmental (agency) responsibility to maintain a safe (unpolluted)\nenvironment. Furthermore, Justice Kagan critiques the majority opinion\xe2\x80\x99s car metaphor that\nlikened the EPA to a driver who believes it is \xe2\x80\x9cappropriate\xe2\x80\x9d to buy a Ferrari but fails to account\nfor the cost, because \xe2\x80\x9che plans to think about cost later when deciding whether to upgrade the\nsound system\xe2\x80\x9d (Michigan v. EPA 2015). Justice Kagan responds by providing her own car metaphor\nby comparing the EPA to a driver who decides that it is \xe2\x80\x9cappropriate and necessary\xe2\x80\x9d to replace\nher worn-out brake pads without initially considering cost, since she is well aware that she has\nenough time to evaluate costs and explore different options to stay within her budget from her\nprior experience with replacing worn-out brake pads.\nJustice Kagan\xe2\x80\x99s critique of the majority\xe2\x80\x99s car metaphor is a direct critique on the masculine themes\nfound within the majority\xe2\x80\x99s opinion, where she categorizes the metaphor as \xe2\x80\x9cwitty but wholly\ninapt,\xe2\x80\x9d and reminds the majority that the issue at hand has much larger implications than buying\na car. She intentionally switches the pronouns used by the majority from he to she in her own\ninterpretation of the reasonable car purchase metaphor. Switching the metaphor from male to\nfemale, and from a luxury purchase to a necessary safety purchase, simultaneously addresses the\nmale perception of unpolluted nature as an unnecessary luxury while firmly placing the provision\nof safety and reasonable decision-making within a female realm. This switch thus reaffirms female\nagency and decision-making as necessary, \xe2\x80\x9cappropriate and reasonable\xe2\x80\x9d lifesaving actions.\n\nJustice Ruth Bader Ginsburg\nIn Donald C. Winter, Secretary of the Navy, et al. v. Natural Resources Defense Council, Inc., et al., 555\nU.S. 7 (2008), pertaining to requirements for an environmental impact statement (EIS) to assess\nMother Nature, Lady Justice | 523\n\n\x0cthe risks and potential dangers Navy exercises could have on marine life, the dissent by Justice\nGinsburg emphasizes the potential harms to marine mammals and environment when she states\nthat \xe2\x80\x9cenvironmental injury, by its nature, can seldom be adequately remedied by money damages\nand is often permanent or at least of long duration\xe2\x80\x94that is, irreparable. If such injury is sufficiently\nlikely, therefore, the balance of harms will usually favor the issuance of an injunction to protect the\nenvironment\xe2\x80\x9d (Winter v. Nat. Res. Def. Council, Inc. 2008).\nJustice Ginsburg thus perceives the public interest to be one of protecting the environment\nand marine wildlife, rather than the continued military exercises. This affirms (feminine)\nenvironmental protections over (masculine) security priorities. Her dissent thus reflects her\nperception that the environmental risk is greater than perceived by the majority opinion,\nquestions the presumption that military interests automatically outweigh environmental interests,\nand affirms broad use of government power to protect the environment through an injunction.\nIn Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, et al., 557 U.S. 261 (2009), dealing\nwith wastewater from gold mines, Justice Ginsburg argues that the all-male majority opinion\ncompletely undermines the purpose of the Clean Water Act. In a footnote, Justice Ginsburg\ncritiques Justice Breyer\xe2\x80\x99s attempt to assuage concerns of the Court creating loopholes in\nenvironmental protection (expressed in his concurring opinion) by stating that \xe2\x80\x9c[d]estruction of\nnearly all aquatic life in a pristine lake apparently does not qualify as \xe2\x80\x98unacceptable.\xe2\x80\x99\xe2\x80\x9d Justice\nGinsburg\xe2\x80\x99s use of imagery cannot go unnoticed. Her use of the word \xe2\x80\x9cpristine\xe2\x80\x9d to describe the\nlake, which she argued would be perversely polluted, could be interpreted as an ecofeminist\ncritique against the exploitation of a \xe2\x80\x9cpristine\xe2\x80\x9d lake to be used as a dumping site for waste.\nFurthermore, she again finds environmental risk to be greater than her male peers believe and\nsees environmental protection as a legitimate, necessary interest of government, such that she\nexpresses her disdain for the majority position in both her words and tone.\n\nChief Justice John Roberts\nIn Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007), pertaining to the\nregulation of greenhouse gases, Chief Justice Roberts dissented against the majority\xe2\x80\x99s stance that\nthe EPA has authority to regulate greenhouse gases, arguing that the petitioners do not have\na traceable or particular injury to have Article III standing to sue. Chief Justice Roberts begins\nhis dissenting opinion by stating that \xe2\x80\x9cglobal warming may be a \xe2\x80\x98crisis,\xe2\x80\x99 even \xe2\x80\x98the most pressing\nenvironmental problem of our time.\xe2\x80\x99\xe2\x80\xa6Indeed, it may ultimately affect nearly everyone on the\nplanet in some potentially adverse way, and it may be that governments have done too little to\naddress it\xe2\x80\x9d (Massachusetts v. EPA 2007).\n\n524 | Mother Nature, Lady Justice\n\n\x0cChief Justice Roberts downplays the potential risks of climate change by continuously employing\nthe word may to condition its significant, negative effects through generating uncertainty. He also\nintentionally places the word crisis and the phrase \xe2\x80\x9cthe most pressing environmental problem of\nour time\xe2\x80\x9d in quotes to signal that he does not believe these claims. Ironically, Chief Justice Robert\xe2\x80\x99s\nfocus on the global scale of the risks of climate change and the recognition that these risks\n(i.e., injuries) are experienced by every living being on the planet\xe2\x80\x94rather than being individual\nand personal\xe2\x80\x94are used to undermine petitioner standing and government authority to ensure\nenvironmental (and thus human) protection. These themes thus align with the masculine\nperspective we hypothesized, where environmental risks are undermined or underestimated and\ngovernment authority is insufficient or illegitimate in efforts to protect the environment.\n\nJustice Antonin Scalia\nIn Friends of the Earth, Inc., et al. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167\n(2000), dealing with the discharge of mercury into the North Tyger River in South Carolina, Justice\nScalia\xe2\x80\x99s dissenting opinion reflects rhetoric similar to that of Chief Justice Roberts. Justice Scalia\nstates, \xe2\x80\x9cOngoing \xe2\x80\x98concerns\xe2\x80\x99 about the environment are not enough, for \xe2\x80\x98It is the reality of the\nthreat of repeated injury that is relevant to the standing inquiry, not the plaintiff\xe2\x80\x99s subjective\napprehensions\xe2\x80\x99\xe2\x80\x9d (internal quotes pertain to Los Angeles v. Lyons, 461 U.S. 95 [1983]) (Friends of the\nEarth, Inc. v. Laidlaw Envtl. Servs. [TOC], Inc., 2000).\nJustice Scalia uses linguistic tools to undermine the legitimacy of environmental concerns and\nquestions the ability of people to demonstrate environmental injury as well as their legitimacy as\nenforcers of environmental laws. In every discussion of environmental concerns or environmental\nharms, Justice Scalia consistently places the terms concerns or harms in quotation marks, to\nindicate that the environmental concerns or harms asserted by Friends of the Earth, or any party\nasserting similar concerns, are not legitimate and not objective realities\xe2\x80\x94which is reiterated in\nhis reference to environmental harm as \xe2\x80\x9csubjective apprehensions\xe2\x80\x9d rather than demonstrable\nfact. Justice Scalia also implies a distinct separation between mankind and the environment by\nasserting that no direct, objective link can be made between the environment and litigants. Thus\nhis dissent appears to align with our expectations that this male-centered view underestimates\nenvironmental risk or damage, perceives nature as something completely distinct and separate\nfrom human livelihood and safety, and seeks minimal government action and authority to protect\nthe environment.\n\nMother Nature, Lady Justice | 525\n\n\x0cJustice John Paul Stevens\nIn Monsanto Co., et al. v. Geertson Seed Farms, et al., 561 U.S. 139 (2010), dealing with genetically\nengineered alfalfa plants, Justice Stevens places significant weight on the environmental impacts\nthat genetically modified plants could have when gene transfer occurs with native plants, where\n\xe2\x80\x9cthe environmental and economic consequences would be devastating.\xe2\x80\x9d Yet his concerns for the\ncross-contamination of alfalfa crops are mostly framed within the forecasted economic loss of\nfarmers whose livelihoods depend on naturally occurring alfalfa crops. While this framing can\nbe conceived as ecofeminist in the efforts to preserve sustainable agricultural techniques and\nprotecting natural seeds, especially in the face of large transnational corporations (Mies and Shiva\n2014), it can also be framed as masculine in that the value of the natural seed, as treated in\nSteven\xe2\x80\x99s dissent, does not originate from an innate value of natural seeds or preserving traditional\ncultural practices. Rather the value of natural seeds is that farmers rely on them for their economic\nlivelihood. Hence the driving factor of Steven\xe2\x80\x99s dissent is not the protection of naturally occurring\nalfalfa (i.e., the environment itself); instead, the primary motivation for environmental protection\nis the protection of farmers\xe2\x80\x99 economic well-being and national economic production of American\nagriculture. Because his focus remains primarily on human economic wealth and future national\nwealth, which are conceptualized as profit rather than sustenance, we consider his dissent to align\nwith our expectations of masculine perspectives rather than ecofeminism.\n\nJustice Lewis Powell\nIn Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978), pertaining to the construction of the Tellico\nDam in a critical habitat for the endangered snail darter, Justice Powell issued a dissenting opinion,\njoined by Justices Rehnquist and Blackmun, arguing that environmental concerns of endangered\nspecies should not apply when a project is completed or substantially completed. He writes, \xe2\x80\x9cThis\ndecision casts a long shadow over the operation of even the most important projects, serving vital\nneeds of society and national defense, whenever it is determined that continued operation would\nthreaten extinction of an endangered species or its habitat\xe2\x80\x9d (Tennessee Valley Auth. v. Hill 1978).\nHere, one sees Powell\xe2\x80\x99s prioritization of national defense over the environment, implying an\nassumption of the superiority of mankind and their military (and economic) endeavors to\ndominate environments, which are considered largely useless as they offer homes to only tiny,\ninconsequential life-forms. Justice Powell draws a dichotomy between the \xe2\x80\x9cgrandiosity\xe2\x80\x9d of\ngovernmental projects and the \xe2\x80\x9cminuscule\xe2\x80\x9d environment, referring to the federal hydroelectric\nprojects and reservoirs as \xe2\x80\x9cgreat\xe2\x80\x9d and \xe2\x80\x9cessential to the [United States\xe2\x80\x99] economic health and\nsafety.\xe2\x80\x9d However, when critiquing the majority\xe2\x80\x99s decision, he uses a \xe2\x80\x9cwater spider\xe2\x80\x9d or \xe2\x80\x9camoeba\xe2\x80\x9d\n526 | Mother Nature, Lady Justice\n\n\x0cas an example of what the majority argues would be sufficient to halt the development of an\ninfringing federal project. Justice Powell\xe2\x80\x99s choice to use a water spider or amoeba is intended\nto categorize the environment as a minuscule barrier that is overshadowed in comparison to\nthe \xe2\x80\x9cgreat\xe2\x80\x9d federal projects. Indeed, his selection of these life-forms is designed to make the\nmajority opinion protecting the environment appear ridiculous. The dissent thus reflects the\nperception that humans are fundamentally distinct and separate from their environments, where\nthe environment is most (or only) useful as a resource to develop, through which it gains value.\n\nJustice William Douglas\nIn United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669 (1973),\ndealing with environmental impact statements (EIS) on proposed changes to railroad freight rate\nsurcharges, Justice Douglas references the value of environment as solely resources used for\nhuman activity and consumption. His concerns are thus not the protection of the environment\nfor sustainable ecological well-being and interdependence; rather, his concerns focus on the\npreservation of nonrenewable resources that are used in human economies, such as wood pulp\nand metal ore. For example, Justice Douglas quotes the National Environmental Policy Act of\n1969 (42 U.S.C. \xc2\xa74331 [b]) that conceptualizes nature as ensuring \xe2\x80\x9csafe, healthful, productive,\nand esthetically and culturally pleasing surroundings\xe2\x80\xa6and enhance[ing] the quality of renewable\nresources and depletable resources.\xe2\x80\x9d This conceptualization suggests an acknowledgment of\nnature in providing mankind\xe2\x80\x99s health and safety, but then immediately emphasizes its value\nthrough ensuring productive human activities as resources and sites of recreation and reprieve\nthat are culturally and sensorially pleasing to man. This context suggests the extractive nature of\nthe perception of nature\xe2\x80\x99s value, in that the value of nature is what it provides mankind. In his\ndissent, Justice Douglas focuses on injuries related to environmental damage in recreational areas,\nsuch as parks and picnic areas. The implication is thus that the primary value of the environment is\neconomic (as resources for human economies) and recreational (as aesthetic human playgrounds).\nIn sum, the language of the dissent reveals an androcentric perception of nature and its utility to\nmankind.\n\nJustice Thurgood Marshall\nIn Chemical Manufacturers Association v. Natural Resources Defense Council, Inc., 470 U.S. 116\n(1985), pertaining to EPA regulation of toxic pollutants, Justice Thurgood Marshall filed a\ndissenting opinion, joined by Justices O\xe2\x80\x99Connor, Blackmun, and Stevens, emphasizing the\nMother Nature, Lady Justice | 527\n\n\x0cenvironmental risks of toxins, by quoting a portion of the Congressional Record in which the\nbill\xe2\x80\x99s Senate manager, Senator Muskie, argued that \xe2\x80\x9cthe seriousness of the toxics problem is just\nbeginning to be understood. New cases are reported each day of unacceptable concentrations of\nmaterials in the aquatic environment, in fish and shellfish, and even in mother\xe2\x80\x99s milk\xe2\x80\x9d (Chem. Mfrs.\nAss\xe2\x80\x99n v. Nat. Res. Def. Council, Inc. 1985).\nJustice Marshall\xe2\x80\x99s decision to include this direct quote in his dissent is worth noting. The explicit\nreference to mother\xe2\x80\x99s milk connotes the interdependent relationship between the environment\nand humans, where the environment is not separate or distinct from human living and well-being.\nOf course, this reference to motherhood and family raising could be strategic (on the part of\n12\n\nboth Senator Muskie and Justice Marshall)\n\nin that these frames are effective mediums that are\n\npolitically useful; they simultaneously appear apolitical (since everyone cares for their family and\nchildren) and they are mobilizing political action based on fears of safety and protection, where\nwomen are called upon to act to protect their children and men are called upon to protect their\nwives and the mothers of their children. In essence, the most vulnerable and sympathetic persons\nare placed as the most at risk. Not to undermine the importance of mothers and children, but\nwe do want to highlight that neither Muskie nor Marshall discusses presumably less sympathetic\npersons who would also be particularly vulnerable to such toxins: the poor, homeless, people of\ncolor, immigrants, and so on.\nDespite this reference to the contamination of mother\xe2\x80\x99s milk, however, the dissent contains little\ndiscussion that could be considered ecofeminist. Instead, Justice Marshall focuses only on the\nlanguage of the Clean Water Act and congressional records detailing hearings and committee\nmeetings related to the Act. We thus find mixed results, where the main arguments of the\ndissent are consistent with masculine conceptions of the environment in terms of its value for\neconomies and recreation. However, the environmental threat is not underestimated, and there is\nthe acknowledgment through Muskie\xe2\x80\x99s quote of human interdependence with nature.\n\nConclusion\nThe linguistic analysis of justices\xe2\x80\x99 written dissenting opinions provides promising insight into\ngender effects on environmental litigation before the US Supreme Court. Justices Ginsburg and\n\n12. It is also unclear whether Justice O\xe2\x80\x99Connor had any influence in the language of the dissent or the\ndecision to include Senator Muskie\xe2\x80\x99s quote. Senator Muskie is quoted repeatedly throughout the\ndissent, but no similar ecofeminist perception, language, or themes appear in any of these other\nquotes.\n528 | Mother Nature, Lady Justice\n\n\x0cKagan demonstrate a clear concern with the protection of human and nonhuman beings as well\nas implementing ecofeminist-aligned language within their opinions. Both Justice Ginsburg and\nJustice Kagan continuously emphasize the harms associated with environmental destruction, and\nthey do not presume that human interests are divorced from, or superior to, environmental\ninterests\xe2\x80\x94even in national security contexts. They not only use explicit legal argumentation\nto refute majority positions, but their intentional use of tone and diction to convey strong\nconvictions and more subtle redefining is noteworthy.\nJustice Ginsburg particularly emphasizes risks specific to the environment and nonhuman life (e.g.,\nadvocating for the protection of marine mammals in Winter), and she promotes the use of court\ninjunctions as remedies to avoid further destruction or harm to the environment. Justice Kagan\nfocused primarily on the interdependence of humans and the environment, particularly focusing\non the connections between environmental harm and harm to human society as a result. In\nMichigan v. EPA, Justice Kagan cited the potential risks associated with air pollutants, particularly\nto asthmatic children. Additionally, Justice Kagan\xe2\x80\x99s critique of the majority\xe2\x80\x99s car metaphor could be\ninterpreted as a feminist critique of the majority\xe2\x80\x99s hypermasculine metaphors when discussing the\nenvironment. Overall, Justices Ginsburg and Kagan clearly prioritized environmental protection\nfor the sake of protecting the environment, as well as protecting human society by emphasizing\nsociety\xe2\x80\x99s interdependence with the environment. In addition, their conception of protecting\nhuman society stems from family/community well-being and health rather than economic profits.\nCompared to Justice Ginsburg and Justice Kagan, male justices demonstrated significantly\ndifferent concerns when discussing the environment\xe2\x80\x94even when they agreed on similar\noutcomes of environmental protection. Specifically, male judges often dissent in matters where\nArticle III standing was at issue, or whether courts have legitimate authority to intervene in\nenvironmental matters (i.e., issuing injunctions), where men were more likely to use legal\nprocedures to limit government authority in regulating or protecting the environment. In addition,\nthe language of these male-authored dissents largely conforms to our expectations of masculine\nviews of nature as distinct and inferior to human interests and activities, as well as perceptions\nthat underestimate or question the severity or existence of environmental threat. For example,\nJustice Scalia was not convinced that environmental harms could be connected to the petitioners\nin any justiciable way. Chief Justice Roberts also emphasized the lack of standing when discussing\nthe harms of climate change.\nMale justices often questioned the redressability of environmental harms, particularly through\ncourt injunctions. Justice Powell argued that the US District Court in Tennessee Valley Authority\nabused its discretion by issuing an injunction that halted the construction of the Tellico Dam in\norder to save the snail darter. Justice Powell based his argument on the grandiosity of US federal\nprojects, such as the Tellico Dam, and emphasized the potential economic growth that would have\nresulted if the Tellico Dam had reached completion. Chief Justice Roberts continuously stressed\nMother Nature, Lady Justice | 529\n\n\x0cthe limitations of the US government and judicial system in redressing any sort of environmental\nharm associated with rising temperatures as a result of greenhouse gases.\nFurthermore, even when male justices are arguing for environmental protection, their language\nreveals androcentric values that prioritize economic interests and recreational use, rather than\nviewing nature as necessary and symbiotic with the well-being and survival of humankind. Justice\nStevens and Justice Douglas both view the environment as valuable due to the economic and\nrecreational resources it provides to humankind. Justice Douglas is primarily concerned with\ninjuries related to environmental damage in recreational areas, and Justice Stevens prioritizes\nenvironmental protection as a mode for economic production.\nIn sum, while interesting variation appears across the male justices\xe2\x80\x94and even within some\ndissents, such as those of Justice Marshall\xe2\x80\x94these results are consistent with the expectations\nimplied by ecofeminism. The language of dissenting opinions reveals gender differences in how\nmen and women relate to, and place themselves in relation to, nature and the environment. Even\nwith the limited number of women on the US Supreme Court, the homogenizing effects of law\nschool and legal careers (Guinier et al. 1994; Kritzer and Uhlman 1977), and the constraints imposed\nby law in making judicial decisions, we find evidence that women judges are more likely to view\npeople as interdependent and reliant upon nature for survival and well-being, more likely to find\ninherent value in nonhuman beings, more likely to take environmental risks seriously, more likely\nto prioritize health and sustenance as valuable common goods provided by nature, and more likely\nto find legitimate government authority to regulate and intervene to protect nature. On the other\nhand, men judges are more likely to view humans and civilization as distinct from and superior\nto nature, more likely to minimize or question environmental risks, and more likely to question\ngovernment authority to protect the environment. Even the men judges who seek court outcomes\nprotecting the environment tend to prioritize human economies and business profits and view\nnature primarily as resources to develop economic activities.\nHence the addition of women onto courts not only increases court legitimacy via descriptive\nrepresentation but can fundamentally transform the law (Maule 2000) by restructuring the\nprocess of solving moral dilemmas, altering agendas (Thomas 1994), integrating women\xe2\x80\x99s\nexperiences and recognizing power (im)balances (Binion 1991), and supporting social values rather\nthan assuming that individuals exist separate from society (West 1988). This transformation occurs\nnot just within cases pertaining to traditional \xe2\x80\x9cwomen\xe2\x80\x99s issues,\xe2\x80\x9d but forms a substantively different\nset of decision-making processes that can complement the masculine forms already\ninstitutionalized within our political and legal institutions to generate a better future for everyone,\nhuman and nonhuman alike.\n\n530 | Mother Nature, Lady Justice\n\n\x0cReferences\nAdams, Carol J. 1990. The Sexual Politics of Meat: A Feminist-Vegetarian Critical Theory. New York:\nContinuum.\nBaptist, Edward E. 2014. The Half Has Never Been Told: Slavery and the Making of American\nCapitalism. Basic Books.\nBinion, Gayle. 1991. \xe2\x80\x9cToward a Feminist Regrounding of Constitutional Law.\xe2\x80\x9d Social Science\nQuarterly 72 (2): 207\xe2\x80\x9320.\nBoyd, Christina L., Lee Epstein, and Andrew D. Martin. 2010. \xe2\x80\x9cUntangling the Casual Effects of Sex\non Judging.\xe2\x80\x9d American Journal of Political Science 54 (2): 389\xe2\x80\x93411.\nCurtin, Deane. 1991. \xe2\x80\x9cToward an Ecological Ethic of Care.\xe2\x80\x9d Hypatia 6 (1): 60\xe2\x80\x9374.\nDavis, Sue. 1986. \xe2\x80\x9cThe Impact of President Carter\xe2\x80\x99s Judicial Selection Reforms: A Voting Analysis of\nthe United States Courts of Appeals.\xe2\x80\x9d American Politics Quarterly 14 (4): 328\xe2\x80\x9344.\nDunbar-Ortiz, Roxanne. 2015. An Indigenous Peoples\xe2\x80\x99 History of the United States. Boston: Beacon.\nGilligan, Carol. 1982. In a Different Voice: Psychological Theory and Women\xe2\x80\x99s Development.\nCambridge, MA: Harvard University Press.\nGottschall, Jon. 1983. \xe2\x80\x9cCarter\xe2\x80\x99s Judicial Appointments: The Influence of Affirmative Action and\nMerit Selection in Voting on the US Court of Appeals.\xe2\x80\x9d Judicature 67:165\xe2\x80\x9373.\nGruen, Lori. 1992. \xe2\x80\x9cFacing Death and Practicing Grief.\xe2\x80\x9d In Ecofeminism: Feminist Intersections with\nOther Animals & the Earth, edited by Carol J. Adams and Lori Gruen. New York: Bloomsbury.\nGruhl, John, Cassia Spohn, and Susan Welch. 1981. \xe2\x80\x9cWomen as Policy Makers: The Case of Trial\nJudges.\xe2\x80\x9d American Journal of Political Science 25 (2): 308\xe2\x80\x9322.\nGryski, Gerard, Eleanor C. Main, and William J. Dixon. 1986. \xe2\x80\x9cModels of State High Court Decision\nMaking in Sex Discrimination Cases.\xe2\x80\x9d Journal of Politics 48 (1): 143\xe2\x80\x9355.\nGuinier, Lani, Michelle Fine, Jane Balin, Ann Bartow, and Deborah Lee Stachel. 1994. \xe2\x80\x9cBecoming\nGentlemen: Women\xe2\x80\x99s Experiences at One Ivy League Law School.\xe2\x80\x9d University of Pennsylvania\nLaw Review 143 (1): 1\xe2\x80\x93110.\nHaire, Susan B., and Laura P. Moyer. 2015. Diversity Matters: Judicial Policy Making in the U.S.\nCourts of Appeals. Charlottesville: University of Virginia Press.\n\nMother Nature, Lady Justice | 531\n\n\x0cKing, Gary, Robert Keohane, and Sidney Verba. 1994. Designing Social Inquiry: Scientific Inference\nin Qualitative Research. Princeton, NJ: Princeton University Press.\nKritzer, Herbert M. 2009. \xe2\x80\x9cConclusion: \xe2\x80\x98Research Is a Messy Business\xe2\x80\x99: An Archeology of the Craft\nof Socio-Legal Research.\xe2\x80\x9d In Conducting Law and Society Research: Reflections on Methods and\nPractices, edited by S. Halliday and P. Schmidt, 264\xe2\x80\x9385. New York: Cambridge University Press.\nKritzer, Herbert M., and Thomas M. Uhlman. 1977. \xe2\x80\x9cSisterhood in the Courtroom: Sex of Judge and\nDefendant in Criminal Case Disposition.\xe2\x80\x9d Social Science Journal 14: 77\xe2\x80\x9388.\nLahar, Stephanie. 1991. \xe2\x80\x9cEcofeminist Theory and Grassroots Politics.\xe2\x80\x9d Hypatia 6 (1): 28\xe2\x80\x9345.\nMacGregor, Sherilyn. 2004. \xe2\x80\x9cFrom Care to Citizenship: Calling Ecofeminism Back to Politics.\xe2\x80\x9d Ethics\nand the Environment 9 (1): 56\xe2\x80\x9384.\nMack-Canty, Colleen. 2004. \xe2\x80\x9cThird-Wave Feminism and the Need to Reweave the Nature/Culture\nDuality.\xe2\x80\x9d NWSA Journal 16 (3): 154\xe2\x80\x9379.\nMaule, Linda S. 2000. \xe2\x80\x9cA Different Voice: The Feminine Jurisprudence of the Minnesota State\nSupreme Court.\xe2\x80\x9d Buffalo Women\xe2\x80\x99s Journal 9 (17): 295\xe2\x80\x93316.\nMerchant, Carolyn. 1996. Earthcare: Women and the Environment. New York: Routledge.\nMies, Maria, and Vandana Shiva. 2014. Ecofeminism. 2nd ed. London: Zed Books.\nRes\xc3\xa9ndez, Andres. 2016. The Other Slavery: The Uncovered Story of Indian Enslavement in America.\nBoston: Houghton Mifflin Harcourt.\nSalleh, Ariel. 2017. Ecofeminism as Politics: Nature, Marx and the Postmodern. 2nd ed. London: Zed.\nSegal, Jennifer. 2000. \xe2\x80\x9cRepresentative Decision Making on the Federal Bench: Clinton\xe2\x80\x99s District\nCourt Appointees.\xe2\x80\x9d Political Research Quarterly 53 (1): 137\xe2\x80\x9350.\nSherry, Suzanna. 1986. \xe2\x80\x9cCivic Virtue and the Feminine Voice in Constitutional Adjudication.\xe2\x80\x9d\nVirginia Law Review 72: 543\xe2\x80\x93616.\nShiva, Vandana. 1989. Staying Alive: Women, Ecology, and Development. London: Zed Books.\nSonger, Donald R., Sue Davis, and Susan Haire. 1994. \xe2\x80\x9cA Reappraisal of Diversification in the Federal\nCourts: Gender Effects in the Courts of Appeals.\xe2\x80\x9d Journal of Politics 56 (2): 425\xe2\x80\x9339.\nSpiegel, Marjorie. 1996. The Dreaded Comparison: Human and Animal Slavery. London: Mirror\nBooks.\nThomas, Sue. 1994. How Women Legislate. Oxford: Oxford University Press.\n532 | Mother Nature, Lady Justice\n\n\x0cTuck, Eve, and K. Wayne Yang. 2012. \xe2\x80\x9cDecolonization is Not a Metaphor.\xe2\x80\x9d Decolonization:\nIndigeneity, Education & Society 1 (1): 1\xe2\x80\x9340.\nWahlbeck, Paul J., James F. Spriggs II, and Forrest Maltzman. 1999. \xe2\x80\x9cThe Politics of Dissents and\nConcurrences on the U.S. Supreme Court.\xe2\x80\x9d American Politics Quarterly 27 (4): 488\xe2\x80\x93514.\nWalker, Thomas G., and Deborah J. Barrow. 1985. \xe2\x80\x9cThe Diversification of the Federal Bench: Policy\nand Process Ramifications.\xe2\x80\x9d Journal of Politics 47 (2): 596\xe2\x80\x93617.\nWebley, Lisa. 2010. \xe2\x80\x9cQualitative Approaches to Empirical Legal Research.\xe2\x80\x9d In Oxford Handbook of\nEmpirical Legal Research, edited by Peter Cane and Herbert M. Kritzer, 927\xe2\x80\x9350. Oxford: Oxford\nUniversity Press.\nWest, Robin. 1988. \xe2\x80\x9cJurisprudence and Gender.\xe2\x80\x9d University of Chicago Law Review 55 (1): 1\xe2\x80\x9372.\nWittgenstein, Ludwig. 1953. Philosophical Investigations. Hoboken, NJ: Wiley-Blackwell.\n\nStudent Activities: Critical Reflection\n1. How do you relate and interact with nature and the environment? Identify how you interact\nwith nature, environmental issues, and life-affirming processes such as caregiving,\nparenting, homemaking, health, and so on in your daily life.\n2. How does your interaction with nature impact you?\n3. How do your actions impact the environment?\n4. In some countries, the environment has legal personality, and certain environmental entities\nhave legal rights and protections in the same way people have status as legal persons\n(generating rights, protections, privileges, and responsibilities). For example, the Colombian\nConstitutional Court declared that the Atrato River Basin and Amazon River have legal rights\nto \xe2\x80\x9cprotection, conservation, maintenance, and restoration.\xe2\x80\x9d In New Zealand, the Te Urewera\nNational Park was declared an environmental legal entity, as were the Whanganui River and\nMount Taranaki. This means that these environmental entities can \xe2\x80\x9cappear before a court\xe2\x80\x9d\nthrough legal guardians in order to ensure their protection from pollution, extraction, and\nexploitation. Do you think the environment (or parts of the environment) should have legal\npersonality(s)? What impact would legal personality have on the environment and on people\nseeking to use natural resources for economic growth, employment, national security, and\ntourism.\n\nMother Nature, Lady Justice | 533\n\n\x0cAppendix\nDissenting Opinion by Justice O\xe2\x80\x99Connor, from Westlaw\nPennsylvania v. Union Gas Co., 491 U.S. 1, 57, 109 S. Ct. 2273, 2304, 105 L. Ed. 2d 1 (1989), overruled\nby Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 116 S. Ct. 1114, 134 L. Ed. 2d 252 (1996)\nJustice O\xe2\x80\x99CONNOR, dissenting.\nI agree with Justice SCALIA that a faithful interpretation of the Eleventh Amendment embodies\na concept of state sovereignty which limits the power of Congress to abrogate States\xe2\x80\x99 immunity\nwhen acting pursuant to the Commerce Clause. But that view does not command a majority of\nthe Court, thus necessitating an inquiry whether Congress intended in CERCLA, 42 U.S.C. \xc2\xa7 9601\net seq., and SARA, Pub.L. 99\xe2\x80\x93499, 100 Stat. 1613, to abrogate the States\xe2\x80\x99 Eleventh Amendment\nimmunity. On that question, I join Part I of Justice WHITE\xe2\x80\x99s opinion. I also join Parts II, III, and IV\nof Justice SCALIA\xe2\x80\x99s opinion concurring in part and dissenting in part.\n\n534 | Mother Nature, Lady Justice\n\n\x0c21. Strategic Activism\nA Comparative View of Judges as Institution Builders\nSHANNON ISHIYAMA SMITHEY\n\nIn 1610, English judge Edward Coke boldly asserted that judges had the authority to veto the\ndecisions of Parliament. As a result, Coke was reassigned to a lesser court, called in by the King to\ndefend his extraordinary claim to power, and ordered to rewrite his decision (Plucknett 1926, 50).\nAs Coke learned to his detriment, asserting the power of judicial review can provoke retaliation\nfrom other policy makers.\nSince Coke\xe2\x80\x99s time, judges in many countries have claimed the power to veto the decisions of\nother policy makers. Some have experienced political retaliation, but others have been more\nstrategically adroit than Coke, finding ways to expand judicial power while avoiding direct conflict\nwith other policy makers. In this chapter, I explore the initial claims to the power of judicial review\nmade by high courts in the United States, Canada, and South Africa. One striking point emerges\nfrom this comparison: judges in all three places were successful in expanding the power of their\ncourts because they acted strategically when first claiming the power of judicial review.\n\nStrategy and Institutional Identification\nThe current debate in the field of judicial politics over the relative strengths of the attitudinal\nmodel and the strategic model is in large measure a dispute over the extent to which supreme\ncourt justices sincerely pursue their policy goals. Both approaches share the idea that the justices\nare \xe2\x80\x9cpolicy seekers\xe2\x80\x9d whose primary motivation is to achieve policy goals. This focus on policy goals\n1\n\nis important, but it presents an overly narrow account of judicial motivations.\n\nJudges are also motivated by the desire to protect and promote the power of their courts.\nProtecting a court\xe2\x80\x99s institutional authority helps judges maintain the power to achieve policy goals\n\n1. A wide range of factors influence judicial behavior. Judges may strive to contain their workload,\ndevelop a positive professional reputation, and cultivate positive relations with colleagues, to name\nbut three possibilities. For a fuller discussion of a variety of judicial motivations, see Baum (1997,\nchap. 2).\nStrategic Activism | 535\n\n\x0c(Epstein and Knight 1998; Vanberg 1998), but it also helps them safeguard their institutions. Judges\nare likely to feel a sense of institutional responsibility for their courts. Institutions like the judiciary\ntend to become an important \xe2\x80\x9clocus of identification\xe2\x80\x9d for the officials affiliated with them (Egeberg\nand Saerten 1999, 94). Institutions \xe2\x80\x9cmold their own participants, and supply systems of meaning\nfor the participants\xe2\x80\x9d (Peters 1999, 26) so that officials tend to develop a sense of personal affiliation\nand stewardship for the institutions they serve.\nThese concerns lead judges to act strategically to preserve judicial authority. Acting strategically\nis necessary both because judges depend on others to help enforce their decisions and because\n2\n\nothers have the ability to attack the judiciary and reduce its power. As Gillman argues, \xe2\x80\x9cThose\nwho are affiliated with the Court should be expected to deliberate about protecting their\ninstitution\xe2\x80\x99s legitimacy and (relatedly) adapting their institution\xe2\x80\x99s mission to changing contexts\nand actions of other institutions; in other words, institutional actors must consider issues of\ninstitutional maintenance\xe2\x80\x9d (1999, 81). Courts must maintain a positive political reputation in order\nto persuade other policy makers to comply with their decisions. Because the judiciary is politically\nvulnerable (to noncompliance and to counterattack), judges have strong incentives to act\nstrategically to maintain their institutional standing. We should therefore expect judges to be\n\xe2\x80\x9cinstitutionally minded,\xe2\x80\x9d acting strategically to maintain the power of their courts.\nSometimes this means judges will have to choose between safeguarding judicial power and voting\nfor the policies they prefer. When other policy makers are threatening the judiciary, judges may\nsacrifice their immediate policy goals in order to \xe2\x80\x9clive to fight again another day.\xe2\x80\x9d US history\nprovides many examples of strategic retreats. After the Civil War, congressional Republicans\nviewed the Supreme Court as a threat to Reconstruction. As members of Congress were discussing\nimpeachment and considering measures to repeal Court authority, the Supreme Court reversed\n3\n\nitself to rule in favor of the congressional majority. During the Great Depression, the Court struck\ndown several key provisions of the New Deal. After President Roosevelt won reelection in 1936,\nwith overwhelming Democratic majorities in the House and Senate, the Supreme Court reversed\nits position on the constitutionality of economic regulation\xe2\x80\x94a move referred to as the \xe2\x80\x9cswitch\n\n2. Rosenberg (2008) stresses the ways in which courts depend on other branches for policy impact.\nOther policy makers typically possess a variety of means by which they can push back against\njudicial power, including the power to censure or impeach judges, to remove jurisdiction, or to\noverride decisions through statutory or constitutional amendment. For example, see Shapiro (1981),\nClark (2009), and Pacelle (2015).\n3. In Ex Parte Milligan (1866), the Supreme Court overturned the arrest and conviction of a Southern\nsympathizer. Members of Congress viewed this as a direct threat to the larger Reconstruction\nprogram. The Court retreated in Ex Parte McCardle (1869), dismissing a similar complaint after\nCongress repealed its jurisdiction. For more on this case, see Epstein and Walker (1995).\n536 | Strategic Activism\n\n\x0c4\n\nin time that saved nine.\xe2\x80\x9d And during the McCarthy era, the Supreme Court withdrew its earlier\nsupport for those who had refused to give testimony before the House Un-American Activities\n5\n\nCommittee in response to congressional threats to repeal the Court\xe2\x80\x99s jurisdiction. In each of\nthese cases, the justices faced serious threats to their power and strategically sacrificed policy\ngoals to deflect attacks on institutional power.\nJudges also make strategic advances. Courts have become more influential in many places since\nWorld War II (Tate and Vallinder 1995), often by asserting judicial authority in ways calculated\nto avoid retaliation. Constitutional courts in Israel and New Zealand have taken advantage of\n6\n\nencouragement from powerful elites to assert themselves politically (Hirschl 2000). Judicial\nreview was first used in France not to challenge popular laws but to overturn extremely unpopular\n7\n\nlegislation (Mullen 1998). The Constitutional Court of the Republic of Italy struck down many laws\nfrom the fascist period while upholding most legislation passed by the contemporary Parliament\nand Council of Ministers (Volcansek 1992). Similarly, the Constitutional Court of South Africa\nasserted its power by overturning laws made during the apartheid era rather than taking on the\ncontemporary regime (Smithey 2006).\nJudges also use cases where they agree with challenged policies to advance judicial power. Such\ncases allow judges to write opinions that both please other policy makers (by upholding the policy)\nand expand the power of courts (by increasing judicial jurisdiction or discretion). For example,\nthe European Court of Justice has made its most expansive claims for judicial power in cases\nthat upheld member state policies (Alter 1998). Sunkin (1994) documents a similar phenomenon in\nEngland, where British judges have often declared that they have jurisdiction over administration\n\n4. Prior to 1937, the Supreme Court defined Congress\xe2\x80\x99s power to regulate commerce very narrowly.\nBeginning with NLRB v. Jones and Laughlin Steel (1937), the Court became deferential to\ncongressional power, broadening its concept of commerce to include activities affecting interstate\ncommerce. For more on the Court and the New Deal, see Schwartz (1993) and O\xe2\x80\x99Brien (2000).\n5. After the Court protected one HUAC witness from contempt charges in Watkins v. US (1957),\nCongress began debating legislation designed to remove the Court\xe2\x80\x99s jurisdiction over questions\nasked by congressional committees. As a result, the Court rejected similar arguments made by\nanother witness in Barenblatt v. US (1959). For more on these cases, see Epstein and Knight (1998)\nand O\xe2\x80\x99Brien (2000).\n6. Hirschl (2000) argues that elites who are threatened with decreasing power have supported judicial\nreview and the constitutionalization of rights in order to protect their political and economic\nposition.\n7. Nelson finds a related form of strategic behavior among the state supreme courts in the early United\nStates. Rather than risking a backlash from asserting their power against popular policies, judges in\nthe early American states tended \xe2\x80\x9cto invalidate legislation having little political significance and\narousing little controversy\xe2\x80\x9d (1972, 1177).\nStrategic Activism | 537\n\n\x0cissues and then ruled in favor of the government. These votes appeared to be deferential, thereby\navoiding backlash from other policy makers, but precedent has been set for greater judicial power.\nIn each of these instances, judges acted from vantage points created either by siding with public\nopinion or by supporting the policy choices of other officials to claim greater power while keeping\nthe risk of retaliation low. Strategic institution building is clearly a recurrent form of judicial\nbehavior.\n\nStrategic Responses to Uncertainty in the Early Years\nWe are most likely to see strategic behavior from judges on courts with less institutional authority\nand fewer established safeguards. To test this expectation, we must examine the behavior of\ncourts with degrees of institutional strength that are very different from the modern American\nSupreme Court. This can be accomplished by comparing courts from different countries according\n8\n\nto their institutional positions. In this chapter, I take a comparative approach, focusing on judges\nin three countries as they first asserted the power of judicial review. The period in which judges\nfirst claim this power is an opportune one for studying strategic institution building. Judges have\nstrong incentives to act strategically when they first attempt to expand their authority. Before\njudicial review has become a routine part of the political landscape, judges cannot assume that\nothers will comply with its exercise. Since political support builds over time as the public is\nexposed to legitimating messages (Gibson, Caldeira and Baird 1998), judges are most likely to\nencounter public resistance and political counterattack before they have the chance to cultivate\n9\n\nthis support. At the same time, legislators and executives have institutional incentives to push\nback against initial assertions of judicial review, since that practice has the potential to diminish\ntheir own power (Steytler 1995). Once judges have decided to assert their authority, they face the\ndual risk that they will have little normative protection to forestall retaliation, while policy makers\n\n8. Institutional position refers generally to a court\xe2\x80\x99s political strength. A number of factors are relevant\nhere, including a court\xe2\x80\x99s popularity with the public, the perception of the public and other policy\nmakers about the legitimacy of a court as a decision-maker, and the availability and public\nacceptance of court-curbing measures. Courts that experience ready compliance from other policy\nmakers are in a much stronger institutional position than those that regularly face concerted\nopposition.\n9. This may explain Nagel\xe2\x80\x99s finding that court-curbing attempts were common in the early nineteenthcentury US, when \xe2\x80\x9cthe rule of the judicial branch of the government was not yet established and the\nobvious partisanship of some justices was a hindrance to the growth of the judicial myth\xe2\x80\x9d (1973, 19).\n538 | Strategic Activism\n\n\x0chave significant incentives to retaliate. The strategic challenge for judges is to find a way to assert\ntheir authority without alienating potential supporters or sparking political retaliation.\nOne useful way to avoid confrontation while simultaneously establishing precedent for judicial\nreview is to claim the power of review and then use it to rule in favor of a challenged policy. Such\ndecisions are strategically beneficial for judges because they lay the foundation for judicial power\nwithout antagonizing those who might undermine a court\xe2\x80\x99s institutional position. They represent\na form of strategic activism in that they allow judges simultaneously to assert judicial authority\nand to avoid, or at least minimize, the risk of counterattack. We should regularly expect judges to\nbe strategically activist during the period in which they assert the power of judicial review for the\nfirst time.\nExamples of strategic activism are apparent in the behavior of high court judges in the US, Canada,\nand South Africa during their initial \xe2\x80\x9cassertive\xe2\x80\x9d periods. The US Supreme Court began asserting\nits review powers during the early 1800s under the leadership of Chief Justice Marshall. The\nCanadian Supreme Court first asserted a limited form of judicial review in the 1880s under the\nBritish North America Act (BNA) and later claimed full-fledged review powers in the 1980s under\nthe Charter of Rights and Freedoms. The Constitutional Court of South Africa asserted its powers\nin the mid-1990s, shortly after that country adopted its post-apartheid constitution. Judges in all\nthree places laid a legal foundation for judicial power while avoiding policy conflicts with officials\nwho had the power to retaliate against their courts.\n\nUnited States\nThe Supreme Court was politically vulnerable in the early 1800s. By the time John Marshall became\nchief justice in 1801, the Court had already been rebuked for asserting judicial authority over the\n10\n\nstates.\n\nIt was not at all clear that Congress or the executive would be any more willing than\n\nthe states had been to give the Supreme Court final say over the meaning of the Constitution. In\naddition, the Court was considered the political ally of the Federalist Party, which had just suffered\ndramatic defeat in the election of 1800.\nShortly after that election, the Court faced an executive challenge to its authority in Marbury v.\n\n10. In Chisholm v. Georgia (1793), the Supreme Court ordered Georgia to pay its debts to a South\nCarolina merchant after deciding that federal courts could exercise jurisdiction in cases in which a\nstate was sued by citizens of other states. Four years later, the adoption of the Eleventh Amendment\nbarred federal courts from deciding cases brought against states by foreigners or citizens of other\nstates.\nStrategic Activism | 539\n\n\x0cMadison. Lame duck president John Adams appointed William Marbury as justice of the peace,\nbut his commission had not been delivered by the time Thomas Jefferson had been sworn in as\npresident. Jefferson ordered James Madison, his secretary of state, not to deliver the commission.\nMarbury then sought a Supreme Court order to compel delivery. Jefferson made it clear that his\nadministration would not comply with such an order. The justices faced the strong possibility not\n11\n\nonly of executive noncompliance but of outright attack on the institution. Marbury\xe2\x80\x99s petition\npresented a real threat to the power of the Court.\nThe case confronted Chief Justice Marshall with a stark choice between his policy preferences and\nhis concern for the institutional position of the judiciary. Marshall was appointed to the Court by\nPresident Adams. Based on his policy preferences alone, he would have led the other Federalists\nin a stinging rebuke of the Jefferson administration, culminating in an order to deliver Marbury\xe2\x80\x99s\ncommission. Jefferson had made it clear, however, that any such order would be disregarded and\nmight serve as grounds for impeachment. Facing down the president and losing would accomplish\nlittle of worth but could do great harm to the position of the Supreme Court. As Epstein and Knight\nsuggest, \xe2\x80\x9cMarshall was confronted with a dilemma: vote his sincere political preferences and risk\nthe institutional integrity of the Court, not to mention his job, or act in a sophisticated fashion with\nregard to his political preferences and elevate judicial supremacy\xe2\x80\x9d (1998, 47). He took the latter\noption.\nMarshall\xe2\x80\x99s opinion demonstrates that judges sometimes put institutional concerns ahead of policy\n12\n\ngoals, conceding the battle to win the war.\n\nAfter discussing the ways in which Marbury had\n\nbeen wronged by the denial of the commission, Marshall avoided probable attack on the judiciary\nby giving Jefferson what he wanted, a refusal to order the commission delivered. He reached\nthis outcome by holding that the Court lacked the power to issue such an order. This was true,\nMarshall argued, because the act of Congress authorizing such orders was unconstitutional and\ntherefore void. Arguing that it was \xe2\x80\x9cemphatically the province of the judicial department to say\nwhat the law is,\xe2\x80\x9d Marshall claimed for the justices the power to strike down laws that were\n13\n\ninconsistent with their reading of the Constitution. Though Jefferson rejected the idea of judicial\n14\n\nreview,\n\nMarshall left him no practical way to undo the decision. The Court had conceded its\n\n11. The Jeffersonian Democrats in Congress had abolished the Court\xe2\x80\x99s 1802 session. Judicial\nimpeachments were a serious possibility. Jefferson and the Republicans were particularly concerned\nthat the Court not assert authority to oversee executive power (Clinton 1994).\n12. Marshall did take the opportunity to rail against Jefferson in the dicta of the opinion.\n13. This claim seems even bolder given that the Constitution does not mention such power.\n14. Jefferson argued that the Constitution required that each branch of the national government be\nindependent of the others (see O\xe2\x80\x99Fallon 1992, 243\xe2\x80\x9344), which precludes the idea of judicial oversight\nof the executive through judicial review.\n540 | Strategic Activism\n\n\x0cpolicy preference (delivery of Marbury\xe2\x80\x99s commission) in the interest of laying a foundation for\njudicial power in the future.\nThough Marshall\xe2\x80\x99s sophistication in Marbury is well known, it is not his only example of strategic\nactivism. The Marshall Court used a similar approach in its attempts to establish federal\njurisdiction over the state courts. In Cohens v. Virginia (1821), the Court considered whether\nfederal judges could overturn state court convictions they considered inconsistent with federal\n15\n\nlaw. Marshall, an advocate of national power in general and Supreme Court power in particular,\nfaced concerted opposition from states\xe2\x80\x99 rights advocates and state judges who rejected oversight\n16\n\nby federal courts.\n\nThe risk of appearing politically impotent was strong. As a result, in Cohens,\n\nMarshall declared that federal courts could reverse state court convictions that were in conflict\nwith national law. At the same time, by issuing a very strained interpretation of congressional\nintent, he upheld the validity of the Cohens\xe2\x80\x99 conviction (Graber 1995, 89).\nThe Court took a similar approach in U.S. v. Schooner Peggy (1803). In that case, the Marshall\nCourt was asked to decide whether French ships captured at sea could be treated as spoils, as\nthe Federalists wanted, or should be returned to France, as the Jefferson administration preferred.\nAfter asserting the Court\xe2\x80\x99s authority to interpret treaties authoritatively, Marshall produced a\n\xe2\x80\x9clegally questionable\xe2\x80\x9d interpretation of the Treaty of Mortefontaine to give Jefferson the decision\nhe wanted (Graber 1998, 231).\n\n17\n\nIn each of these cases, Marshall made a claim for judicial authority while declining to give orders\nthat were likely to be disobeyed. The Marshall Court\xe2\x80\x99s strategy for building judicial strength might\nbest be summarized as \xe2\x80\x9cvigorously asserting judicial power in theory while declining to exercise\njudicial power in practice\xe2\x80\x9d (Graber 1998, 235\xe2\x80\x9336). Such decisions do not reflect mere capitulation.\nThough they require judges to concede immediate policy victories, they also help lay a foundation\n18\n\nin precedent for the future use of judicial review.\n\n15. The case arose when two brothers were arrested for selling national lottery tickets in Virginia. They\nclaimed Congress\xe2\x80\x99s passage of a Grand National Lottery precluded their arrest. Virginia countered\nthat the US Supreme Court lacked jurisdiction to take such appeals. For further discussion, see\nGraber (1995) and Schwartz (1993).\n16. Goldstein (1997, 143\xe2\x80\x9351) documents considerable state resistance to national power prior to the Civil\nWar, including the controversy in Martin v. Hunter\xe2\x80\x99s Lessee (1816), in which the Virginia Supreme\nCourt claimed the authority to overrule a decision of the national Supreme Court.\n17. This was fairly typical of the early Marshall Court, which ruled in the Jefferson administration\xe2\x80\x99s favor\n\xe2\x80\x9cin every politically salient case decided between 1801 and 1805\xe2\x80\x9d (Graber 1998, 223).\n18. For example, by 1825 Judge Gibson decried the fact that judges almost uniformly accepted Marshall\xe2\x80\x99s\narguments for judicial review and used them to support their own case rulings (see his dissent in\nEakin v. Raub, reprinted in O\xe2\x80\x99Brien 2000).\nStrategic Activism | 541\n\n\x0cCanada\nThe Supreme Court of Canada engaged in strategic activism during both of its institutionalizing\nperiods. The first of these periods occurred in the late nineteenth century, shortly after the\nfounding of the Court. The second occurred after the adoption of the Charter of Rights and\nFreedoms in 1982. In both instances, the justices asserted their power to authoritatively interpret\nCanada\xe2\x80\x99s constitution and then avoided political backlash by using that power to support\nchallenged government policies.\nInitially, the Canadian Supreme Court was not a very powerful institution. The Court was\nstructurally weak in that it was not established by constitutional mandate, and it could be modified\nor even abolished by a standard act of Parliament. Its decisions could be appealed and overruled\nby the British Privy Council.\n\n19\n\nThe Court had no entrenched bill of rights to use as a basis for\n\ncreating an important role for itself. The BNA, Canada\xe2\x80\x99s \xe2\x80\x9cconstituting\xe2\x80\x9d statute, divided government\nauthority between the national and provincial governments, but it did not explicitly empower the\nCourt to enforce its provisions. Parliament waited until 1876, eight years after Confederation , to\ncreate the Court and initially declined even to authorize funds for the construction of a building\nfor its operations.\n\n20\n\nThe delay in creating the Court reflected significant political opposition,\n\nparticularly to the idea of a court with the power to overrule acts of the central government\n(Smith 1983). There was serious consideration of allowing the central government, rather than the\njudiciary, to \xe2\x80\x9crule on the constitutionality of provincial legislation\xe2\x80\x9d (Maclem 1988, 127).\nThe Supreme Court of Canada lacked significant political support. The legal establishment\ndisapproved of the \xe2\x80\x9cway in which the Supreme Court of Canada had been designed and the\ncharacter of its jurisprudence. . . . The court was thus faced with a pre-existing hostility even\nbefore commencing work\xe2\x80\x9d (Snell and Vaughan 1985, 24). Once the Court was created, a number of\nprominent candidates refused to serve and \xe2\x80\x9cthe intellectual strength of the Court clearly suffered\nas a result\xe2\x80\x9d (Snell and Vaughan 1985, 15). Several proposals were introduced in Parliament to\nweaken the powers of the Court during its first decade.\nAs a result, the Court did not boldly assert itself into most aspects of Canadian politics, with one\nnotable exception. The justices did lay a foundation for judicial power when it came to resolving\ndisputes over the division of national and provincial power. The BNA did not specify an arbiter\nfor federal disputes; the Canadian Supreme Court claimed that role for itself. In 1879, the justices\n\n19. Appeals to the Privy Council continued until 1949. Russell (1987) reports that approximately half of\nthe Privy Council\xe2\x80\x99s Canadian cases were appealed directly, bypassing the Canadian Supreme Court.\n20. The justices took temporary quarters in the Parliament building until 1882, when a renovated stable\nbecame home to the Court and the National Gallery of Art (McCormick and Greene 1990).\n542 | Strategic Activism\n\n\x0cdeclared that they would have the final say in interpreting the provisions of the BNA and that they\nwould strike down as void any policy that the justices thought had been adopted by the wrong\nlayer of government.\nThe Court made the claim in Valin v. Langlois [1879]. Parliament adopted the Dominion\nControverted Elections Act, authorizing the creation of special commissions to review contested\nelection results for the House of Commons. The Act specified that provincial court judges would\nserve on these commissions. The appellant in Valin objected to this provision, arguing that\nParliament was not authorized to change the power of provincial tribunals or obligate their\nmembers to additional service. The Court unanimously agreed that the Act was within Parliament\xe2\x80\x99s\ncompetence.\nAfter taking this deferential stance, the justices went on to assert a claim of significant judicial\npower. After upholding the law, the justices declared that they possessed the power to strike laws\ndown for inconsistency with the BNA. The justices declared that it was their responsibility \xe2\x80\x9cto\ndeclare authoritatively the principles by which both federal and local legislation are governed.\xe2\x80\x9d\n\n21\n\nAfter emphasizing the powers of Parliament at several points, the justices went on to stress that\nthe BNA limited those powers and that the justices would be the ones to enforce them.\n\n22\n\nSeveral\n\njustices explicitly discussed the threat that parliamentary power posed to judicial authority,\n23\n\nhighlighting their awareness of the potential for retaliation against an upstart judiciary.\n\nThey\n\nskirted this danger by claiming federal review powers while upholding the challenged policy. In\nthis strategically sophisticated way, they were able to lay a foundation for judicial power while\nminimizing the possibility of political backlash.\n\n24\n\n21. Justice Ritchie in Valin v. Langlois [1879] Vol. 3 SCR at 9.\n22. Justice Ritchie notes, for example, that \xe2\x80\x9cit is too clear that if they do not possess the legislative\npower, neither the exercise nor the continued exercise of a power not belonging to them could\nconfer it or make their legislation binding\xe2\x80\x9d (at 22). Justice Henry stresses his willingness to disallow\ninappropriate acts of Parliament by noting that he is \xe2\x80\x9cgratified to witness the success that has been\nachieved in . . . the trial of election contests; but at the same time, would not give my sanction to an\nAct which is ultra vires\xe2\x80\x9d (at 70).\n23. For example, Justice Fournier notes that the national government has \xe2\x80\x9cthe most extensive powers\nover the courts in existence, namely those of repealing, abolishing or altering them\xe2\x80\x9d (in translation,\nat 57). In his opinion, Justice Taschereau (at 76) emphasizes the control Parliament has over court\njurisdiction and then notes that \xe2\x80\x9cif the House of Commons, even now, chose to disobey a judgment\nof an election court, I do not see how the court could enforce its judgment\xe2\x80\x9d (at 80).\n24. The Canadian Supreme Court was not considered particularly significant politically for much of its\nhistory. However, it did have a significant impact on the balance of federal and provincial power (e.g.,\nsee Hogg 1979; Russell 1985), the area over which it asserted review power in 1879.\nStrategic Activism | 543\n\n\x0cA century later, the Canadian Supreme Court proceeded strategically as it began interpreting\nthe new Charter of Rights and Freedoms. Adopted in 1982, the Charter expanded the power of\nthe judiciary by protecting a wide range of civil liberties and by explicitly empowering courts\n25\n\nto enforce those protections through the exercise of judicial review.\n\nThis represented a\n\nconsiderable departure from the role formerly performed by the Supreme Court. Except in the\narea of federalism, the Court had primarily limited its policy making role, interpreting rights\nnarrowly and adopting canons of construction by which policies could be found constitutional\n(Hogg 1983; Tate and Sittiwong 1989). This restraint had fostered a respect for judicial\nindependence,\n\n26\n\nbut it also accustomed legislators to a considerable amount of judicial deference.\n\nThe adoption of the Charter of Rights and Freedoms provided a significant opportunity for judicial\nexpansion, but there was no guarantee that claims for increased judicial power would be accepted.\nThe Charter represented a significant departure from past practice. Though the Charter explicitly\nrecognized judicial review, judges had little way of knowing whether other policy makers would\nrespect a more assertive judiciary. Elected officials unwilling to comply had several options for\nretaliation. Section 33 of the Charter allows legislatures to reinstate judicially invalidated laws for\nrenewable five-year periods. Legislatures may also create new courts and reassign jurisdiction to\nother tribunals (Smith 1983; Russell 1987). Such court-curbing measures provide a strong incentive\nfor justices to assert their authority strategically to minimize the chances it will be undermined by\nlegislative retaliation.\nThe Canadian Supreme Court did not initially assert its authority recklessly. Operation Dismantle\nv. the Queen [1985], one of its earliest cases, provides a prime example of a court engaged in\nbuilding institutional credibility. The case involved a challenge to a foreign policy decision taken\nby the cabinet to allow the US to test cruise missiles in Canadian air space. The group Operation\nDismantle argued that such cooperation with the US would prompt the Soviet Union to make\nCanada a target for its nuclear missiles, infringing the Charter right to security of the person.\nThe government argued that the Supreme Court lacked the authority to review foreign policy\n\n25. The charter declares constitutional protection for rights to religion, expression, and association\n(Section 2); a series of defendants\xe2\x80\x99 rights (Sections 7\xe2\x80\x9311); and minority language rights (Sections\n16\xe2\x80\x9323). Section 15 guarantees equal protection of the law. Section 24(1) declares, \xe2\x80\x9cAnyone whose\nrights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a\ncourt of competent jurisdiction to obtain such remedy as the court considers appropriate and just in\nthe circumstances.\xe2\x80\x9d\n26. The BNA and the 1970 Judges Act support judicial independence by granting judges tenure from\nappointment until age seventy-five, given good behavior. Justices may only be removed after\nnonpartisan judicial inquiry. For more on judicial independence in Canada, see McCormick and\nGreene (1990) and MacKay and Bauman (1985).\n544 | Strategic Activism\n\n\x0cdecisions. The government advocated the adoption of a political question doctrine, which it\nrecommended the Court use to deny itself the authority to decide the case.\nRather than wall itself off from the foreign policy field, the Supreme Court pursued the midlevel\nstrategy of asserting its authority and then using it to uphold the government\xe2\x80\x99s policy choice.\nIn his majority opinion, Chief Justice Dickson averred that he had \xe2\x80\x9cno doubt that disputes of a\npolitical or foreign policy nature may be properly cognizable by the courts\xe2\x80\x9d (1 SCR at 459). Justice\nWilson concurred: \xe2\x80\x9cThe courts should not be too eager to relinquish their judicial review function\nsimply because they are called upon to exercise it in relation to weighty matters of state\xe2\x80\x9d ([1985]\n13 CRR at 309). She also noted,\nBecause the effect of the appellant\xe2\x80\x99s action is to challenge the wisdom of the government\xe2\x80\x99s\ndefence policy, it is tempting to say that the Court should in the same way refuse to\ninvolve itself. However, I think this would be to miss the point. . . . The question before us\nis not whether the government\xe2\x80\x99s defence policy is sound but whether or not it violates the\nappellants\xe2\x80\x99 rights under s.7 of the Charter of Rights and Freedoms. This is a totally different\nquestion. I do not think there can be any doubt that this is a question for the courts. ([1985]\n1 SCR at 472)\nIndeed, she said, the Court is not merely allowed but obligated to make decisions in such cases:\nIf we are to look at the Constitution for the answer to the question whether it is\nappropriate for the courts to \xe2\x80\x9csecond guess\xe2\x80\x9d the executive on matters of defence, we\nwould conclude that it is not appropriate. However, if what we are being asked to do is to\ndecide whether any particular act of the executive violates the rights of the citizens, then it\nis not only appropriate that we answer the question; it is our obligation under the Charter\nto do so. ([1985] 13 CRR at 310)\nAfter finding that the Court had the power to make a decision, the justices voted to uphold the\nmissile program. The majority held that the Section 7 argument was\ntoo uncertain, speculative and hypothetical to sustain a cause of action. Thus, although\ndecisions of a federal cabinet are reviewable by the courts under the Charter, and the\ngovernment bears a general duty to act in accordance with the Charter\xe2\x80\x99s dictates, no duty\nis imposed on the Canadian government by s.7 of the Charter to refrain from permitting\nthe testing of the cruise missile. (1 SCR at 447\xe2\x80\x9348)\nThis decision is perfectly consistent with the expectations of strategic activism\xe2\x80\x94judges argued for\nan expansion of their decision-making authority, while the executive was left no practical way to\n\nStrategic Activism | 545\n\n\x0cundermine the decision.\n\n27\n\nRather than focusing narrowly on policy outcomes, the justices used the\n\ncase as a vehicle to promote institutional power.\n\nSouth Africa\nThe justices of the Constitutional Court of South Africa have also acted strategically while\nattempting to establish institutional power. From the late 1940s through the early 1990s, South\nAfrica\xe2\x80\x99s government enforced policies of racial separation and repression and denied the vast\nmajority of its citizens the right to vote. After experiencing violence at home and condemnation\nabroad, South Africa began a negotiated transition to democratic government and protection of\ncivil liberties in the early 1990s. In 1994, the Convention for a Democratic South Africa adopted\nan interim constitution and established a Constitutional Court with the authority to enforce\nfundamental principles of human rights (Williams 1998; Newitt and Bennun 1995). The Court\xe2\x80\x99s\nreview power extended to regular laws and to the constitutions that would be drafted by the\nnational assembly and the provincial legislatures. The Constitution of the Republic of South Africa,\nwhich the Court certified in December 1996, explicitly grants the Court the power to declare\ninvalid any law or official conduct that is inconsistent with the Constitution.\nThe judges of South Africa\xe2\x80\x99s new constitutional courts faced significant uncertainty about their\nauthority. The Court had no traditional reservoir of goodwill to draw on for support (Spitz and\nChaskalson 2000; Gibson and Caldeira 2003). As Gibson reports , \xe2\x80\x9cThe Constitutional Court was\nconceived in controversy . . . and inevitably is connected to some degree by the link to the\njudiciary\xe2\x80\x99s apartheid past. Thus, one might expect the Court to have a limited store of institutional\nlegitimacy\xe2\x80\x9d (2008, 237). South Africans had finally achieved the right to elect their leaders, but\njudicial review meant that the Court could overturn policies favored by the people\xe2\x80\x99s\nrepresentatives. This had the potential to stir resentment and inspire retaliation against the Court.\nMore broadly, there remains considerable doubt about the country\xe2\x80\x99s future. The white minority\nmay not accept democracy; the black majority may not accept constitutional limits on its new\n\n27. The Court has become more assertive over time. This may reflect the high rates of acceptance\namong policy makers that met the Court\xe2\x80\x99s initial charter decisions. The fact that only Quebec\ninitially used the override may have increased the justices\xe2\x80\x99 confidence. Some of the Court\xe2\x80\x99s later\ndecisions have been assertive and politically controversial, such as its decision invalidating the\ncountry\xe2\x80\x99s abortion law (R.v. Morgentaler 1988) or its decision to extend antidiscrimination laws to\nprotect homosexuals (Vriend v. Alberta 1998). For more on the controversial nature of the expansion\nof judicial power in Canada, see Morton (1984) and Knopff and Morton (1992).\n546 | Strategic Activism\n\n\x0c28\n\npowers.\n\nWhile most South Africans found common cause in their support for President Mandela,\n\nit was not at all clear how well the country would hold together under other leadership (Gibson\nand Gouws 1997). Given the instability of the political environment, the judges of the Constitutional\nCourt may be concerned not only with establishing their institutional credibility but also with\n29\n\npersuading South Africans of the legitimacy of the new regime and its constitution.\n\nAs the theory of strategic activism would predict, the Constitutional Court has employed a\nsophisticated approach to the task of establishing judicial review. The case of President of South\nAfrica v. Hugo (1997) presented the South African Constitutional Court with a useful strategic\nopportunity. In Hugo, the Court was asked to review Presidential Act No. 17 (akin to an executive\norder), which remitted the sentences of \xe2\x80\x9call mothers in prison on 10 May 1994, with minor\nchildren under the age of twelve years.\xe2\x80\x9d John Hugo was a prisoner with an eleven-year-old son,\nwho would have qualified for remission of sentence if he had been a woman. He challenged\nthe Act on the grounds of gender discrimination in violation of Section 8 of the South African\n30\n\nConstitution.\n\nThe local division court ruled for Hugo, directing President Mandela to amend\n\nhis order to make it consistent with the Constitution. On appeal, the Constitutional Court was\nasked to consider whether it had jurisdiction over acts of presidential prerogative, such as the\nright to remit sentences, and if so to decide whether the presidential act was consistent with the\nConstitution.\nIn considering the issue of jurisdiction, Judge Goldstone\xe2\x80\x99s majority opinion admitted that\n\n28. The protection of minority rights could come to be viewed as the protection of white privilege if the\nCourt aggressively protects the right to property, which disproportionately benefits white elites. For\nmore on this point, see Abel (1995) and Davis et al. (1995). Steytler suggests that similar tensions are\npresent in other democratizing African countries, where \xe2\x80\x9cthe judiciary, in protecting minority\ninterests, cannot antagonize majoritarian interests unduly without undermining their own position\xe2\x80\x9d\n(1995, 506).\n29. Gibson, Caldeira, and Baird (1998) speculate that courts build up their credibility over time by\nrendering decisions that please the public. The converse of this is that unpopular decisions may\nendanger their position and possibly even the position of the regime of which they are a part.\n30. Section 8 reads, in part, (1) Every person shall have the right to equality before the law and to equal\nprotection of the law. (2) No person shall be unfairly discriminated against, directly or indirectly . . .\non one or more of the following grounds in particular: race, gender, sex, ethnic or social origin,\ncolour, sexual orientation, age, disability, religion, conscience, belief, culture or language. (3) (a) This\nsection shall not preclude measures designed to achieve the adequate protection and advancement\nof persons or groups or categories of persons disadvantaged by unfair discrimination. . . .(4) Prima\nfacia proof of discrimination on any of the grounds specified in subsection (2) shall be presumed to\nbe sufficient proof of unfair discrimination as contemplated in that subsection, until the contrary is\nestablished.\nStrategic Activism | 547\n\n\x0c\xe2\x80\x9ctraditionally the exercise or prerogative powers of a monarch have not been subject to judicial\nscrutiny\xe2\x80\x9d (\xc2\xb6 16). He went on to note a recent trend in favor of judicial review of prerogative\n31\n\ndecisions, giving particular attention to English precedent\n\nin favor of judicial oversight, which\n\nargued that \xe2\x80\x9cthe powers of the court cannot be ousted merely by invoking the word \xe2\x80\x98prerogative.\xe2\x80\x99\nThe question is simply whether the nature and subject matter of the decision is amenable to the\njudicial process\xe2\x80\x9d (at \xc2\xb6 18).\nThe Constitutional Court concluded that the Constitution not only allowed but required judicial\nreview of acts of executive prerogative. Goldstone wrote,\nThe interim constitution obliges us to test impugned action by any organ of state against the\ndiscipline of the interim Constitution. . . . That is the fundamental incidence of the constitutional\nstate which is envisioned by the Preamble to the interim Constitution. . . . In my view it would be\ncontrary to that promise if the exercise of presidential power is above the interim constitution and\nis not subject to the discipline of the Bill of Rights. (at \xc2\xb6 28)\nIn his concurrence, Judge Kriegler added that \xe2\x80\x9cthe president, as the supreme upholder and\nprotector of the Constitution, is its servant. Like all other organs of state, the President is\nobliged to obey each and every one of its commands\xe2\x80\x9d (at \xc2\xb6 65). In order to ensure constitutional\naccountability, the Court declared that its power reached every aspect of executive prerogative. In\ncoming to this conclusion, the Court adopted a review power broader than that available to judges\nin any other democracy.\nHaving established that presidential acts could be reviewed by the Court, the majority then\nturned to the issue of whether Mandela\xe2\x80\x99s decree had violated Hugo\xe2\x80\x99s Section 8 right against\ngender discrimination. The Court sided with Hugo, holding that the Act constituted prima facia\ndiscrimination \xe2\x80\x9con a combined basis, sex coupled with parenthood of children below the age\nof twelve\xe2\x80\x9d (at \xc2\xb6 33). The Court then ruled that once discrimination has been established, the\nConstitution puts the burden on the executive to prove the reasonableness of the discrimination.\nRejecting a less demanding standard adopted by a lower court,\n\n32\n\nGoldstone held that a lack of\n\ndiscriminatory intent would not be enough to save the act if it was found to constitute \xe2\x80\x9cunfair\ndiscrimination.\xe2\x80\x9d All this presents a significant challenge to executive authority.\nConsistent with an expectation of strategic activism, after declaring their right to oversee the\n\n31. R. v. Home Secretary, ex parte Bentley [1994].\n32. In Kruger v. Minister of Correctional Services 1995 SA 803 (T), Judge Van Schalkwyk held that courts\ncould not review the constitutionality of prerogative acts on equality grounds unless there was an\nallegation of bad faith by the president. The decision in Hugo subjects presidential actions to a\nhigher burden because it considers effect as well as intent.\n548 | Strategic Activism\n\n\x0cexecutive and evaluate his motives, the Court upheld the act as reasonable. Despite expressing\nconcern that the President\xe2\x80\x99s choice was based on a gender stereotype that often worked to\nwomen\xe2\x80\x99s disadvantage, the Court held that the Act passed muster under Section 8. The majority\nexpressed concern that if the Court required a gender-blind release of inmates, the President\nwould find the costs too high to release anyone, resulting in a situation in which the goal of\n33\n\nincreasing care of prisoners\xe2\x80\x99 children would be wholly frustrated. On this basis,\n\nthe Court held\n\nthat the President\xe2\x80\x99s rather blunt use of gender stereotypes did not violate the prohibition against\nunfair discrimination.\nOne might argue that the outcome in this case is merely a reflection of the judges\xe2\x80\x99\npreferences\xe2\x80\x94that the logic the judges resorted to is no more than window dressing for their\npersonal support for Mandela (who appears to have the respect of the Court) or a view that Hugo\nand inmates like him should be in jail. Advocates of the attitudinal model would be most likely\nto put that spin on the case. However, if the case outcome was most important to the judges,\nthey had a number of easier approaches available. They could have dismissed the case as moot,\n\n34\n\nresulting in the same outcome. Or the Court could have declined to extend its jurisdiction to acts\nof presidential prerogative either for presidential pardons or as a whole. This would also have\nachieved the same outcome for the litigant, and it would have had the added benefit of supporting\nMandela\xe2\x80\x99s executive authority.\nInstead, the Court chose the path of strategic activism. The decision laid down a broad claim\nof judicial authority to review acts of presidential prerogative that was more extensive than\nthat of courts in other democracies (who recognize some categories of prerogative as forbidden\nground). After asserting this power, the majority attempted to make it more palatable to potential\nopponents by using that authority to reinforce the president\xe2\x80\x99s position in the instant case.\nTherefore, while the outcome of the case appears to be a victory for presidential power, the\ndoctrine established supports judicial oversight in the future. Policy makers who dislike judicial\nauthority are left with no policy incentive to object or any practical way to resist, just as the\nCanadian Parliament had no incentive to override Valin, the Canadian cabinet had no practical way\nto undermine Operation Dismantle, and Jefferson could not undo Marbury.\n\n33. The Court also took into account the social benefits of executive acts of mercy and of controlling\ncrime by keeping male criminals incarcerated.\n34. Hugo\xe2\x80\x99s son was already twelve when the case was filed, making him too old for Hugo to be eligible\nfor release. In his dissent, Judge Didcott argued (at \xc2\xb6 55) that the Court should dismiss the case on\nthat basis, as they had dismissed the case of JT Publishing v. Minister of Safety 1996 (12) BCLR 1599\n(CCT) for the lack of a concrete controversy.\nStrategic Activism | 549\n\n\x0cDiscussion\nThe similarity of strategic activism in such different places and times is remarkable. This should\nencourage judicial scholars to become more comparative. As Hall and Brace argue, \xe2\x80\x9cTo achieve the\nprimary scientific goal of developing general theory that takes into account the complete range of\nforces affecting the politics of courts, comparative analysis is essential\xe2\x80\x9d (1999, 282). Cross-national\nstudies allow scholars to select cases based on theoretically interesting similarities and differences\nto provide greater leverage on persistent questions in the field. Future research is likely to be\nmost beneficial if it systematically varies the institutional setting, paying particular attention to\nthe factors that increase or mitigate risk for high court judges.\nThis study also demonstrates that a complete picture of judicial behavior must include the\nopinions judges write, not just the direction of their votes. The votes in these cases suggested\ndeference to other policy makers, but the opinions told a much more activist story. The most\nimportant details were contained in the opinions. Judges craft opinions to guide future judges and\nthe officials who are charged with implementing court decisions. Ignoring the opinions therefore\nnot only \xe2\x80\x9cmisses the law\xe2\x80\x9d (Tiller and Cross 2006, 517) but ignores the key details of legal policies\nthat judges make. Analyzing opinions is crucial if we are to identify strategic activism.\nThe evidence in this chapter shows that judges can be strategic institution builders. Judges\nin the US, Canada, and South Africa all employed sophisticated tactics when the acceptance\nof judicial authority was uncertain. Rather than engaging in open conflict with other policy\nmakers or fully acquiescing in their policy choices, judges in all three countries pursued a middle\nroad. Sometimes, as in Marbury, they sacrificed their policy preferences to further institutional\nends. At other times, as in Hugo, they seem to use cases in which they essentially agreed with\nchallenged policies to further the cause of greater judicial power. By asserting their decisionmaking authority and then using it to validate the choices of other policy makers, they found\na way to stake a claim to judicial power without facing political counterattacks. By establishing\nprecedent on which later judges could build, they laid a strategic foundation for judicial power.\nJudges in the US, Canada, and South Africa have been successful in institutionalizing judicial\npower. The cases discussed here demonstrate a degree of success that may be emulated by other\ncourts. Constitutional courts in Germany and Israel as well as the European Union have been\nrelatively successful in using similar tactics.\n\n35\n\nOther judges may make all manner of strategic\n\ncalculations but still fail to achieve much respect. Short-term policy sacrifices may not result in\n\n35. Courts in each of these political systems have become important policy makers. Each was\nstrategically activist during expansionist periods, using cases in which they supported challenged\npolicies to stake claims for expanded power (Smithey 1999).\n550 | Strategic Activism\n\n\x0clong-term institutional gains\xe2\x80\x94judges can lose despite their best strategic efforts. Such failure is\nnot by itself proof that judges have not pursued institutional goals. It must be remembered that\nthe concept of strategic activism is offered as a way to predict judicial behavior, not the reactions\nof others to that behavior. We should expect judges to act in ways that are designed to protect\ntheir institutional position, but we should also recognize that they may not succeed.\n\nReferences\nAbel, Richard L. 1995. Politics by Other Means: Law in the Struggle Against Apartheid, 1980\xe2\x80\x9394.\nNew York: Routledge. 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Institutional Theory in Political Science: The New Institutionalism London:\nPinter. (\xe2\x86\xb5 Return)\nPlucknett, Theodore. 1926. \xe2\x80\x9cBonham\xe2\x80\x99s Case and Judicial Review.\xe2\x80\x9d Harvard Law Review 40 (1): 30\xe2\x80\x9370.\n(\xe2\x86\xb5 Return)\n\nStrategic Activism | 553\n\n\x0cRosenberg, Gerald. 2008. The Hollow Hope, 2nd edition. Chicago: University of Chicago Press. (\xe2\x86\xb5\nReturn)\nRussell, Peter. 1987. The Judiciary in Canada. Toronto: McGraw Hill Reyerson. (\xe2\x86\xb5 Return)\nRussell, Peter. 1985. \xe2\x80\x9cThe Supreme Court and Federal-Provincial Relations: The Political Use of\nLegal Resources.\xe2\x80\x9d Canadian Public Policy 11 (2): 161\xe2\x80\x9375. (\xe2\x86\xb5 Return)\nSchwartz, Bernard. 1993. A History of the Supreme Court. New York: Oxford University Press. (\xe2\x86\xb5\nReturn 1) (\xe2\x86\xb5 Return 2)\nShapiro, Martin. 1981. Courts: A Comparative and Political Analysis. Chicago: University of Chicago\nPress. (\xe2\x86\xb5 Return)\nSmith, Jennifer. 1983. \xe2\x80\x9cThe Origins of Judicial Review in Canada.\xe2\x80\x9d Canadian Journal of Political\nScience 16 (1): 115\xe2\x80\x9334. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nSmithey, Shannon Ishiyama. 2006. \xe2\x80\x9cJudicial Activism in South Africa.\xe2\x80\x9d Paper presented to the\nAnnual Meeting of the Midwest Political Science Association, Chicago. (\xe2\x86\xb5 Return)\nSmithey, Shannon Ishiyama. 1999. \xe2\x80\x9cJudges as Constitution Makers: Strategic Assertions of Judicial\nAuthority.\xe2\x80\x9d Presented to the Conference on the Scientific Study of Judicial Politics, College\nStation, Texas. (\xe2\x86\xb5 Return)\nSnell, James and Frederick Vaughn. 1985. The Supreme Court of Canada: History of the Institution\nToronto: University of Toronto Press. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nSpitz, Richard and Matthew Chaskalson. 2000. The Politics of Transition: A Hidden History of\nSouth Africa\xe2\x80\x99s Negotiated Settlement. Johannesburg: Witswatersrand University Press. (\xe2\x86\xb5\nReturn)\nSteytler, Nico. 1995. \xe2\x80\x9cThe Judicialization of Politics in Namibia.\xe2\x80\x9d in The Global Expansion of Judicial\nPower, eds. Neal Tate and Torbjorn Vallinder. New York: New York University Press. (\xe2\x86\xb5 Return)\nSunkin, Maurice. 1994. \xe2\x80\x9cJudicialization of Politics in the United Kingdom.\xe2\x80\x9d International Political\nScience Review 15 (2): 125\xe2\x80\x9333. (\xe2\x86\xb5 Return)\nTate, C. Neal. 1995. \xe2\x80\x9cWhy the Expansion of Judicial Power?\xe2\x80\x9d In The Global Expansion of Judicial\nPower, eds. C. Neal Tate and Torbjorn Vallinder, 27\xe2\x80\x9337. New York: New York University Press. (\xe2\x86\xb5\nReturn)\nTate C. Neal and Panu Sittiwong. 1989. \xe2\x80\x9cDecision Making in the Canadian Supreme Court:\n\n554 | Strategic Activism\n\n\x0cExtending the Personal Attribute Model across Nations.\xe2\x80\x9d Journal of Politics 51 (4): 900\xe2\x80\x9316. (\xe2\x86\xb5\nReturn)\nTiller, Emerson H. and Frank B. Cross. 2006. \xe2\x80\x9cWhat Is Legal Doctrine?\xe2\x80\x9d Northwestern University\nLaw Review 100 (1): 517\xe2\x80\x9333. (\xe2\x86\xb5 Return)\nVanberg, Georg. 1998. \xe2\x80\x9cEstablishing Judicial Independence in West Germany: The Impact of\nOpinion Leadership and the Separation of Powers\xe2\x80\x9d paper presented to the Annual Meeting of\nthe Midwest Political Science Association, Chicago. (\xe2\x86\xb5 Return)\nVolcansek, Mary. 1992. \xe2\x80\x9cJudicial Review and Public Policy in Italy: American Roots and the Italian\nHybrid.\xe2\x80\x9d in Comparative Judicial Review and Public Policy, eds. Donald W. Jackson and C. Neal\nTate, 89\xe2\x80\x93105. Westport, Connecticut: Greenwood Press. (\xe2\x86\xb5 Return)\nWilliams, J. Mike. 1998. \xe2\x80\x9cLights of the Runway: The Constitutional Court\xe2\x80\x99s Role in South Africa\xe2\x80\x99s\nConstitution Writing Process.\xe2\x80\x9d Paper presented at the Annual Meeting of the Midwest Political\nScience Association, Chicago. (\xe2\x86\xb5 Return)\n\nClass Activity\nComparative political science searches for patterns of political behavior that are present in\ndifferent contexts, but it also takes into account the way that rules and behavior vary across\nnations.\nIn the chapter you\xe2\x80\x99ve just read, you learned that judges in three different places and times used\na similar strategy when claiming the power of judicial review. Judicial review is often considered\nthe most important power a court can have, since it gives judges a constitutional veto over other\npolicy makers. However, judicial review is only one of a series of powers that a constitutional court\nmay have that allows that court to have a major political impact.\nBelow there is a list of powers exercised by courts in some constitutional democracies but not in\nothers. Choose one country that is considered a constitutional democracy. For that country, find\nout which of the powers listed below can be exercised by that constitutional court and describe\nthem in the appropriate box. Then make a note of which powers on the list belong to the US\nSupreme Court and which ones do not.\n\nStrategic Activism | 555\n\n\x0cPower\nConstitutional review\nTo certify the acceptability of the Constitution\nTo approve or disallow constitutional amendments\nDocket\nTo issue advisory opinions to other policy makers\nTo decide cases that raise constitutional claims\nTo decide cases that raise regular legal claims as well as\nconstitutional claims\nTo choose to hear some cases and decline to hear others\nTo originate a case, rather than having to wait for others to\nbring the case to the court\nSeparation of powers\nTo review the legality of laws before they are passed by the\nlegislature\nTo review the legality of laws after they are passed by the\nlegislature\nTo review acts of the president or other executive officials\nTo review the implementation of policies by administrative\nagencies\nTo enforce the balance of federal power (between the national\nand provincial or state governments)\nOversight\nTo review and decide on the impeachment of government\nofficials\nTo review and decide on corruption charges against\ngovernment officials\nElectoral review\nTo decide whether political parties are allowed to compete in\nelections\nTo review the conduct of elections and/or certify election\nresults\nRemedies\nTo provide the official interpretation for the meaning of laws\nand regulations\nTo stop the enforcement of laws and/or regulations\n\n556 | Strategic Activism\n\nCountry of choice\n\nUS Supreme Court\n\n\x0cTo order other policy makers to rewrite laws and/or\nregulations\nTo rewrite laws and/or regulations directly (sometimes known\nas \xe2\x80\x9creading in\xe2\x80\x9d)\n\nStrategic Activism | 557\n\n\x0c22. Human Rights and Court Activism in\nthe Mexican Supreme Court\nREBECCA A. REID\n\nCourts rarely play a role in scholarship pertaining to the diffusion, or spread, of human rights and\nthe advancement of international law. This absence ignores the increasing reality that domestic\ncourts can take the lead in promoting human rights. Through changes in international and\n1\n\ndomestic politics, judicialization, and conventionality control, courts have grown in power and are\nstarting to exert their influence in adopting international human rights laws unilaterally.\nThis chapter argues that courts matter in promoting human rights domestically and in\ninternalizing and institutionalizing international law by translating and implementing international\nlaw as domestic, legally enforceable law. As such, this chapter fills the lacuna regarding the role of\n2\n\ncourts in the expansion and institutionalization of international human rights laws within nationstates.\n\nWhy Would Courts Choose to Promote Human Rights?\nDomestic courts can promote human rights by increasingly holding violators accountable and\nexpanding rights protections to a larger set of situations or contexts for a larger proportion of\nsociety. Why would courts choose to promote these rights? Three possible motivations exist.\nFirst, judges serving on courts may sincerely believe promoting rights is morally right or makes\ngood policy. In essence, judge attitudes, political ideologies, or preferred policies align with the\nexpansion of rights protections. Second, judges may be compelled by their perceived inherent\nduty to acknowledge and promote rights. In other words, judges may promote rights because they\nwant to or because they think they ought to. Third, judges may seek to empower the court as an\n\n1. Judicalization refers to the global expansion of judicial power, where increasing judicialization\nenables courts to exert substantial influence over policy decisions. This means that courts are\nplaying a more integral part in policy decisions that were originally exclusively determined by\nlegislative and executive bodies (Tate and Vallinder 1995).\n2. Institutionalization is the process of incorporating and codifying these legal norms into domestic\ninstitutions and laws.\n558 | Human Rights and Court Activism in the Mexican Supreme\nCourt\n\n\x0cinstitution by strategically choosing to promote rights to expand public support and legitimacy,\n3\n\nthereby making it more capable and effective at constraining state behavior. While this chapter\ndoes not distinguish between these possible motivations, it seems plausible that judges might\nwant to expand human rights if they can.\nTwo general outcomes should appear if courts are deciding to promote human rights. First, courts\n4\n\nwith discretionary dockets should increase the proportion of rights cases within those dockets.\nIncreases in human rights cases imply increased court attention to rights issues and the desire\nof the court to rule on these issues. Second, promoting courts should increase pro\xe2\x80\x93individual\nrights (i.e. pro-rights protection) decisions. Increased attention to rights issues is insufficient for\nrights protections and expansion; courts must decide cases in a way that promotes human rights\nprotections in order to support these hypotheses. This leads to the following hypotheses:\n\nH1: Promoting courts should exhibit increased proportions of rights cases in discretionary dockets.\n\nH2: Promoting courts should exhibit increased pro\xe2\x80\x93individual rights decisions.\n\nMethodology\nI evaluate these two hypotheses predicting changes in discretionary docket and decision\noutcomes using original and secondary data from Mexico. Mexico is particularly useful because\nit incorporates complex and contradictory domestic politics, including a recently transitioning\njudicial system and intensifying organized crime and cartel violence, and significant achievements\n\n3. The capacity for courts to constrain state behavior also depends on judicial independence, where\nthe court is sufficiently autonomous to make decisions contrary to the legislative and executive\nbranches as well as sufficiently effective where these decisions are implemented by lower courts\nand other agencies to actually constrain state behavior (rather than having the decision ignored, for\ninstance).\n4. Courts with discretionary dockets have the power to decide which cases to hear, as opposed to\ncourts with mandatory dockets, where judges have no control over which or how many cases they\nhear.\nHuman Rights and Court Activism in the Mexican Supreme Court | 559\n\n\x0cin certain areas of human rights. Moreover, Mexico exemplifies the same judicialization trends as\nexperienced throughout Latin America, where, since the 1980s, courts have become increasingly\npolitically important. Latin American courts are asserting rights not effectively guaranteed by the\nexecutive or legislature, leading citizens to more frequently resort to courts to resolve issues that\nwere previously reserved for the political sphere (Seider, Schjolden, and Angell 2005). Mexico\xe2\x80\x99s\n5\n\nSupreme Court of Justice (Suprema Corte de Justicia de la Naci\xc3\xb3n; SCJN) has similarly evolved and\ntransformed through a series of constitutional reforms and changes in the power structures of\n6\n\nthe Mexican political system (R\xc3\xados-Figueroa 2007). As with many other Latin American countries,\nthe Mexican Supreme Court had been perceived as historically subservient to the executive,\ncorrupt, and ineffective. Since the 1994 judicial reforms, however, the Court has adopted a more\nactive role, taking controversial positions and garnering public attention in an unprecedented\nmanner for judicial review and rights cases. This expansion of review powers has emboldened\n\n5. Mexico\xe2\x80\x99s Supreme Court of Justice sits atop the judicial hierarchy, much like the US Supreme Court.\nAs the highest federal court, it consists of eleven members: the elected president of the SCJN\n(similar to the US chief justice) and ten ministers. Justices are proposed by the president of Mexico\nand confirmed by the Senate of the Republic, much like in the United States. Each justice is\nappointed to serve fifteen years, and the president of the Court serves under the title for four years\n(nonconsecutive reappointment is possible).\n6. Judicial reforms occurred in 1917, 1994, 1996, and 2008. The 1917 constitutional reforms included\nchanges to appointment procedures and the tenure system, which allowed for considerable\nautonomy from the executive (Domingo 2000). However, while the Supreme Court adopted a fairly\nindependent position with regard to the executive and ruled against government interests at times,\nsubsequent reforms in the 1920s\xe2\x80\x9330s aimed to curb judiciary action, leading to a more passive,\ndeferential Court (R\xc3\xados-Figueroa 2007; Domingo 2000). After taking office, President Zedillo\ninstituted a series of judicial reforms to better insulate the Court from political pressures. The 1994\nreforms created a judicial council (el Consejo de la Judicatura), relieved administrative burdens (e.g.,\nlower-court appointments, administration of the judicial budget, disciplinary mechanisms to control\ncorruption), limited the role of the executive in Supreme Court appointments, granted a fifteen-year\ntenure to provide insulation from the executive, removed executive approval as a requirement for\nthe administration of the judicial budget, reduced the size of the Supreme Court from twenty-six to\neleven members, reduced benches from four to two, and forced all current Court members to resign\nin order to appoint new members. Importantly, the reforms also expanded the Court\xe2\x80\x99s jurisdiction of\njudicial review with policy-setting (erga omnes) effects and increased the accessibility for litigants to\npromote cases of constitutional review. These reforms created new jurisdiction of abstract review\n(actions of unconstitutionality) and expanded existing concrete review (constitutional\ncontroversies). Reforms in 1996 further expanded Court jurisdiction, enabling it to rule on electoral\nlaws at the federal and state level. Each of the reforms since 1994 has enabled the Court to play a\nmore active and prominent role in Mexican politics.\n560 | Human Rights and Court Activism in the Mexican Supreme Court\n\n\x0cthe Court to deal with controversial issues more openly than in the past (Domingo 2005; 2000).\nIndeed, the Court openly challenged executive power in 2000, when it resolved a conflict between\nlower-chamber members of the Congress of the Union and President Zedillo to investigate illegal\ncampaign funds (Staton 2010). Importantly, the increased activism of the Court as a check to\nexecutive power has occurred in hand with relatively high compliance to the Court\xe2\x80\x99s rulings even\n7\n\nwhen they are politically inconvenient to the ruling party (Staton 2010; 2007).\n\nIn 2008, Mexico passed additional judicial reforms that introduced public oral trials to criminal\ncases and instituted the presumption of innocence in police investigations . While this reform\npassed in 2008, however, the deadline for full implementation by the Mexican states was 2016. As\nsuch, by October 2013, only three of the thirty-two states had fully implemented these reforms;\nthirteen other states partially transitioned. Finally, in 2011, the Mexican constitution was amended\nso that ratified international treaties and law are ranked as equal to constitutional law, which\nfurther empowers and obligates courts to constitutionally protect these international rights\nobligations.\nIn this sense, the case study of Mexico is descriptive, and it provides preliminary evidence to test\nmy hypotheses. While a single case study examining only one country cannot offer a systematic\ntest to generate conclusions that can be applied to countries beyond Mexico, it offers a first step\nin generating attention to this important topic and in generating empirically testable theories that\ncan be examined in other contexts in future research. As such, the results provided in this chapter\nare applicable only to Mexico, though future research can examine the extent to which other\ncountries\xe2\x80\x99 high courts choose to promote human rights protections. Nonetheless, this chapter is\nthe first to examine trends in domestic high court incorporation of international human rights\nlaws.\nI gather aggregate case data from the Mexican Supreme Court\xe2\x80\x99s yearly reviews publicly available\n8\n\non its website from 2009 to 2014. Unfortunately, more detailed data on individual cases, issue\nareas, and panels are not publicly available. As such, my analyses are limited to the self-reported\naggregate data. The limitation of aggregate data based on case type, rather than data for individual\ncases, is that I cannot identify human rights cases at the case level. In other words, I can\nonly identify types of cases that are predominantly rights related; however, I cannot identify\nthe proportion of rights-related cases within each category, the types of rights represented\n\n7. Of course, increased Court activism has not always been met with welcome. In 2004, Partido\nRevolucionario Institucional (PRI) members called for the impeachment of two Court justices for\nattempting to review a constitutional action in which President Fox challenged the constitutionality\nof a congressional override of the federal budget.\n8. These statistics are from 2009 until May 2017, located here: https://www.scjn.gob.mx/sites/\ndefault/files/pagina/documentos/2017-06/SGAEEM0517.pdf\nHuman Rights and Court Activism in the Mexican Supreme Court | 561\n\n\x0cwithin each category, or the case outcomes specifically. Nonetheless, I divide case types between\nmandatory and discretionary jurisdiction and then identify which categories of cases are\npredominantly rights related and which include identifiable-rights cases.\n9\n\nWithin the Court\xe2\x80\x99s mandatory jurisdiction, rights cases are represented as amparo cases. As such,\n10\n\nthis category of cases reflects Court attention and activity on rights issues.\n\nWithin the Court\xe2\x80\x99s\n\ndiscretionary jurisdiction, rights issues appear in action of unconstitutionality cases (acci\xc3\xb3nes\n11\n\nde inconstitucionalidad) and facultad de atracci\xc3\xb3n cases.\n12\n\nrepresent abstract review\n\nAction of unconstitutionality cases\n13\n\nover the constitutionality of state and federal laws.\n\nThese include\n\nrights-related cases derived from the National Commission for Human Rights (Comisi\xc3\xb3n Nacional\n14\n\nde los Derechos Humanos; CNDH). Action of unconstitutionality cases brought by other parties\n\n9. Amparo cases are part of the Court\xe2\x80\x99s mandatory docket and appellate jurisdiction, and court rulings\nin these cases apply only to the particular litigants in that case unless the Court makes the same\nruling for five consecutive cases, whereby lower courts must apply the same conclusion to all similar\nfuture cases (R\xc3\xados-Figueroa 2007). As such, court rulings in these cases generally do not alter\nnational policy (as they would in common-law countries). Also, amparo cases were heard en banc\nuntil 2003.\n10. All Mexican citizens, civic organizations, indigenous communities, and even the government may\nbring amparo suits (Staton 2010).\n11. The Supreme Court gained this jurisdiction in a constitutional amendment in 1988.\n12. Abstract review occurs when a court has the authority to consider issues that are not part of an\nactual case or controversy, as opposed to concrete review, where courts determine the outcome for\nan actual dispute between two or more parties. For example, the US Supreme Court has only\nconcrete review powers; it can only hear cases where one or more parties have been directly\ninjured. Abstract review may include an issue where no injury has been suffered (and therefore no\nactual controversy or case has emerged).\n13. Action of unconstitutionality cases became part of the Mexican Supreme Court\xe2\x80\x99s docket in 1994 as\npart of a series of judicial reforms. These represent abstract review over the constitutionality of\nstate and federal laws, whereas constitutional controversies deal with only concrete claims through\na posteriori review. Action of unconstitutionality case outcomes apply to general policy when eight\nor more justices agree on the resolution. Constitutional controversy resolutions may have general\npolicy-setting or specific (litigant only) effects depending on the case. The Supreme Court has\nexclusive jurisdiction to both case types (unlike amparo suits) and resolves both en banc. I do not\ninclude constitutional controversies in the analysis because these cases deal primarily with\nproblems between different levels or branches of the government, such as between the state and\nnational government or between the executive and legislative branches. As such, these cases do not\nconsist of human rights issues.\n14. This commission is a national human rights institution accredited by the United Nations and one of\n562 | Human Rights and Court Activism in the Mexican Supreme Court\n\n\x0cmay also be rights related, but we cannot know with aggregate data. As such, this public\norganization monitors potential rights abuses and brings these cases to the Mexican Supreme\nCourt.\nFacultad de atracci\xc3\xb3n cases represent a discretionary amparo jurisdiction, where if a case falls\noutside of the Court\xe2\x80\x99s appellate jurisdiction but the Court deems some element of the case to\n15\n\nbe fundamentally important to Mexican law, it may rule on the matter itself.\n\nHence facultad de\n\natracci\xc3\xb3n cases are rights cases that the Court would not normally have jurisdiction to hear, yet\nthe Court decides to rule on the matter by essentially placing it within its jurisdiction.\n\nIs the Mexican Supreme Court Choosing to Hear More Rights\nCases?\nIn order to evaluate changes in discretionary dockets (H1), I use action of unconstitutionality and\nfacultad de atracci\xc3\xb3n cases. These cases represent the only discretionary portions of the Mexican\nSupreme Court\xe2\x80\x99s docket. In other words, these are the only types of cases where the Court can\nchoose whether it wants to take the case. Amparo cases cannot be examined in relation to H1\nbecause the Court is forced to hear these cases; hence, changes in docket reflect not the Court\xe2\x80\x99s\ndesire to rule on these issues but changing litigation strategies beyond the Court.\nTables 1\xe2\x80\x933 show the number of cases within each category and the percentage of the total docket\nfrom 2009 to 2014 each represents. The number and percentage of cases (out of the total docket)\nrepresent the cases the Court actually accepted and heard (i.e., made decisions on).\n\nthe regional members to the International Criminal Court (ICC), and it is autonomous from the\nfederal government (at least since 1990).\n15. The Supreme Court gained this jurisdiction in a constitutional amendment in 1988.\nHuman Rights and Court Activism in the Mexican Supreme Court | 563\n\n\x0cAction of Unconstitutionality\n(Percentage of Docket)\n\nTotal Docket (Number\nof Cases)\n\n2009 96\n\n1.04%\n\n9191\n\n2010\n\n37\n\n0.41%\n\n9054\n\n2011\n\n34\n\n0.35%\n\n9749\n\n2012\n\n67\n\n0.57%\n\n11849\n\n2013\n\n43\n\n0.33%\n\n13032\n\n2014\n\n113\n\n0.80%\n\n14195\n\nYear\n\nAction of Unconstitutionality\n(Number of Cases)\n\nTable 1. Mexican Discretionary Docket: Action of Unconstitutionality Cases\n\nYear\n\nFacultad de Atracci\xc3\xb3n (Number of Facultad de Atracci\xc3\xb3n (Percentage of\nCases)\nDocket)\n\nTotal Docket (Number of\nCases)\n\n2009 127\n\n1.38%\n\n9191\n\n2010\n\n176\n\n1.94%\n\n9054\n\n2011\n\n282\n\n2.89%\n\n9749\n\n2012\n\n437\n\n3.69%\n\n11849\n\n2013\n\n453\n\n3.48%\n\n13032\n\n2014\n\n702\n\n4.95%\n\n14195\n\nTable 2. Mexican Discretionary Docket: Facultad de Atracci\xc3\xb3n Cases\n\nAction of Unconstitutionality\n(Percentage of Docket)\n\nTotal Docket (Number\nof Cases)\n\n2009 223\n\n2.43%\n\n9191\n\n2010\n\n213\n\n2.53%\n\n9054\n\n2011\n\n316\n\n3.24%\n\n9749\n\n2012\n\n504\n\n4.25%\n\n11849\n\n2013\n\n496\n\n3.81%\n\n13032\n\n2014\n\n815\n\n5.74%\n\n14195\n\nYear\n\nAction of Unconstitutionality\n(Number of Cases)\n\nTable 3. Total Discretionary Docket of Mexican High Court\n\nTables 1\xe2\x80\x933 show that Mexico enjoys discretionary power in only a small proportion of cases.\nThey also reveal, however, that the Court has been increasingly activist in terms of \xe2\x80\x9cattracting\xe2\x80\x9d\ncases that would otherwise fall outside of their jurisdiction. The Court has increased the number\nof facultad de atracci\xc3\xb3n cases it hears consistently each year. This means that the Court is\n564 | Human Rights and Court Activism in the Mexican Supreme Court\n\n\x0cincreasingly making decisions and law on cases that would not normally fall within its jurisdiction.\nAction of constitutionality cases show some fluctuation across years, yet these increases in Court\nattention to rights issues demonstrate its desire to rule on these issues in ways that affect national\n16\n\nlaw.\n\nTable 4 depicts the proportion of cases by litigant for action of unconstitutionality cases in\nMexico from 2008 to 2014.\n\n17\n\nAs the percentages indicate, rights cases introduced by the CNDH\n\nhave garnered increasing attention by the Court.\n\n18\n\nThese yearly percentages underestimate the\n\npercentage of rights cases, since rights cases are often brought forward by other litigants (which\n19\n\nwould appear in the other categories).\n\nNonetheless, the percentage of rights cases brought\n\nforward by the CNDH that the Supreme Court ruled on increased to nearly 28 percent in 2013.\n\n20\n\nSince these cases represent a discretionary portion of the Court\xe2\x80\x99s docket, the Court therefore\ndecided to rule on more rights claims brought forward by the CNDH in 2013 and to a lesser degree\nin 2011.\n\n16. Unfortunately, there are no data identifying possible trends in which appeals are made to the Court.\nThe Court\xe2\x80\x99s total caseload has generally been increasing since 2008, with the largest expansion\noccurring between 2011 and 2012 (as shown in table 5). Still, even if appeals to the Court have\nincreased, the Court is under no obligation to hear any of them. The evidence presented here\nreflects only the level of attention the Court has chosen to grant these types of cases.\n17. Note that individuals do not have standing for action of unconstitutionality cases.\n18. From 2008 to 2014, the average percentage of action of unconstitutionality cases litigated by the\ncommission is 13.89 percent, with a standard deviation of 7.66 percent.\n19. Because the only data available are in aggregate, I cannot distinguish between rights cases in other\ncategories or from other litigants. As such, the Commission for Human Rights is the only category of\ncases that we know are human rights exclusively, thereby underestimating the total number of\nrights-related cases on the docket overall.\n20. However, from 2009 to 2013, action of unconstitutionality cases have declined as a proportion of\ncases decided by the Court while caseload has increased over the same period (see table 5).\nHuman Rights and Court Activism in the Mexican Supreme Court | 565\n\n\x0c2012\n2009 (Dec 2010 (Dec 2011 (Dec\n2008\n(Dec\n2008-Nov 2009-Nov 2010-Nov\n(Sept-Nov)\n2011-Nov\n2009)\n2010)\n2011)\n2012)\n\n2013\n2014 (Dec\n(Dec\n2013-Nov\n2012-Feb\n2014)\n2013)\n\nCumulative\n(Dec\n2008-Nov\n2014)\n\nPolitical\nParty\n\n55%\n\n49%\n\n44.7%\n\n23.5%\n\n23%\n\n27.9%\n\n69.0%\n\n45.3%\n\nLegislative\nMinorities\n\n20%\n\n17.7%\n\n7.9%\n\n8.8%\n\n6%\n\n11.6%\n\n8.8%\n\n11.0%\n\nSolicitor\nGeneral\n\n20%\n\n18.8%\n\n36.8%\n\n50.0%\n\n58%\n\n32.6%\n\n8.8%\n\n28.6%\n\n14.6%\n\n10.5%\n\n17.6%\n\n13%\n\n27.9%\n\n10.6%\n\n96\n\n37\n\n34\n\n64\n\n43\n\n113\n\nNational\nCommission\n3%\nfor Human\nRights\n(CNDH)\nTotal\nNumber of\nCases\n\n20\n\n14.3%\n\n391\n\nTable 4. Mexico\'s Supreme Court: Action of Unconstitutional Cases by Litigant\nData compiled from: https://www.scjn.gob.mx/transparencia/paginas/trans_jurisd.aspx (inactive link as of 5/21/\n2020). Note that 2008 data reflects only the final fourth trimester.\n\nTables 5 and 6 similarly reveal increased judicial attention and activism in facultad de atracci\xc3\xb3n\ncases. These cases represent a discretionary amparo jurisdiction, where the increased number\nof these cases indicates that the Court is increasingly choosing to rule on rights issues. Table 6\nshows the same data in percentage form, enabling direct comparisons across years and caseload.\nThese results imply an increasingly activist Court, since these cases would normally fall outside\nof its jurisdiction. By resolving an increasing number of these cases, then, the Court is essentially\ninformally expanding its jurisdiction.\n\n21\n\n21. Note that this informal expansion of their jurisdiction remains constitutionally valid.\n566 | Human Rights and Court Activism in the Mexican Supreme Court\n\n\x0c2009\nAction of Unconstitutionality 96\nDirect Amparo\n\n2010\n\n2011\n\n2012\n\n2013\n\n2014\n\n37\n\n34\n\n67\n\n43\n\n113\n\n2,448 2,952\n\n3,060 3,951\n\n4,572\n\n6,164\n\nIndirect Amparo\n\n2,292 1,031\n\n883\n\n777\n\n689\n\n965\n\nConstitutional controversy\n\n122\n\n94\n\n130\n\n124\n\n115\n\n121\n\n127\n\n176\n\n282\n\n437\n\n453\n\n702\n\n9,191\n\n9,054 9,749\n\nFacultad de atracci\xc3\xb3n\nTotal Case Load\n\n11,849 13,032 14,195\n\nTable 5. Annual Trends in Case Type and Case Load of Mexican High Court\nData compiled from: https://www.scjn.gob.mx/Transparencia/Indicadores_Gestion/SGAIG2T14.pdf (inactive link as\nof 5/21/2020)\n\n2009\nAction of Unconstitutionality 1.04%\nDirect Amparo\n\n2010\n\n2011\n\n2012\n\n2013\n\n2014\n\n0.41%\n\n0.35%\n\n0.57%\n\n0.33%\n\n0.80%\n\n26.63% 32.60% 31.39% 33.34% 35.08% 43.42%\n\nIndirect Amparo\n\n24.92%\n\n11.39%\n\n9.06%\n\n6.56%\n\n5.29%\n\n6.80%\n\nConstitutional controversy\n\n1.33%\n\n1.04%\n\n1.33%\n\n1.04%\n\n0.88%\n\n0.85%\n\n1.38%\n\n1.94%\n\n2.89%\n\n3.89%\n\n3.48%\n\n4.95%\n\n9,191\n\n9,054\n\n9,749\n\n11,849\n\n13,032\n\n14,195\n\nFacultad de atracci\xc3\xb3n\nTotal Case Load\n\nTable 6. Annual Trends in Case Type in Mexican High Court, Percentages\nData compiled from: https://www.scjn.gob.mx/Transparencia/Indicadores_Gestion/SGAIG2T14.pdf (inactive link as\nof 5/21/2020)\n\nTables 5 and 6 also show marked increases in direct amparo cases, which also consist of rights\ncases but are part of the Court\xe2\x80\x99s mandatory docket (in blue). Amparo protects individual\nconstitutional rights, and direct amparo consist of appeals of the final judgments in criminal or\n22\n\ncivil cases.\n\nThe size of the amparo docket increased by roughly 8.5 percentage points between\n\n22. Indirect amparo (amparo en revisi\xc3\xb3n) are claims heard in the first instance by the federal district\ncourts in response to (a) the publication of laws that by their mere promulgation prejudice the\nclaimant\xe2\x80\x99s liberties; (b) acts and decisions not arising out of judicial, administrative, or labor\nHuman Rights and Court Activism in the Mexican Supreme Court | 567\n\n\x0c2009 and 2014, when the most significant trend appears in direct amparo cases, moving from\n25 percent to 43 percent of the total docket. Since these cases are mandatory, this substantial\nincrease in cases does not necessarily reveal the Court\xe2\x80\x99s desire to resolve these particular rights\nissues (unlike the changes in the discretionary docket composition), but it implies increased rights\n23\n\nlitigation.\n\nCase Outcomes\nThus far, this study has addressed Court attention to rights cases. Yet how does the Court decide\nthese cases? Since no case-level data are available, quantitative empirical analysis is not possible\nto evaluate H2. In other words, there are no data that attach individual cases to Court votes or\noutcomes. For this reason, I offer qualitative analyses of Court decisions on rights cases. The\nlimitation of this type of analysis is that it cannot offer a systematic analysis across each case,\npanel, and time frame. Additional research will be necessary to collect case-level (or judge-level)\ndata so as to better determine more detailed, systematic trends in case outcomes as well as driving\nforces (and motivations) for increased rights protections.\nQualitatively, it appears that the Court has increasingly resolved cases in favor of individual rights.\nThe Court has become especially active in promoting habeas corpus and criminal procedure\nrights, antidiscrimination and reproductive rights, and civilian rights with respect to military\nactions. The Court\xe2\x80\x99s active promotion of individual rights is illustrated by the UN\xe2\x80\x99s awarding\nof the Defense of Human Rights Award in December 2013. The UN Selection Committee for\nthis award recognized that \xe2\x80\x9cThe national Supreme Court has accomplished very considerable\nprogress in promoting human rights through its interpretations and enforcement of Mexico\xe2\x80\x99s\nconstitution and its obligations under international law. Additionally, the national Supreme Court\n\ntribunals; (c) judicial, administrative, or labor tribunal decisions executed outside the bounds of the\ntrial or after its conclusion; (d) acts within a trial whose executive would cause irreparable damage;\nand (e) decisions within a trial that affect parties outside the trial (Staton 2010). Hence in these\ncases, the Supreme Court exercises appellate jurisdiction, often intervening in lower-court\nproceedings.\n23. One may also observe that the Court has reduced its activity in indirect amparo suits. While the\ncause for this is unknown, it may simply be a function of workload, where increased time and\nresources spent on direct amparo cases, which are part of the mandatory docket, leaves little\nremaining resources and time for indirect amparo cases (also part of the mandatory docket). In\nothers words, judges have a finite amount of time and energy to resolve cases, so increases in one\narea may decrease attention in other areas. Further research is required to address this speculation.\n568 | Human Rights and Court Activism in the Mexican Supreme Court\n\n\x0chas set important human rights standards for Mexico and the Latin America region.\xe2\x80\x9d\n\n24\n\nIndeed,\n\nthe Court has emphasized human rights and has placed increased weight on international treaty\nobligations. In 2011, the Court declared that judgments by the Inter-American Court of Human\nRights (IACHR) represent the \xe2\x80\x9claw of the land,\xe2\x80\x9d and the Court ruled in 2013 that rights guaranteed\nby international human rights treaties have equal weight to those guaranteed by the Mexican\nconstitution. Furthermore, court decisions include substantial references to international laws,\nincluding treaties, conventions, IACHR rulings, and other supranational court decisions.\nPerhaps the most significant policy change instituted by the Mexican Supreme Court is the\nreduction of military jurisdiction and the extent to which the military enjoys in-house criminal or\ndisciplinary procedures. In 2011, the Court ruled to reform Mexico\xe2\x80\x99s flawed military justice system\nto hold soldiers accused of human rights violations accountable for their crimes. It declared that\nno civilian or human rights case should be tried in the military justice system. The ruling also\nstated that courts are obligated to comply with IACHR judgments and that its jurisprudence should\nbe taken into account by Mexican judges. In 2012, the Court formally declared unconstitutional\npart of the military code requiring service members charged with a crime against civilians to be\ntried before a court-martial. The Court further published a formal order confirming its ruling and\ndirecting ordinary federal criminal courts to henceforth assume jurisdiction. The same year, the\nCourt conferred legal standing to third parties who were not themselves direct victims of military\naggression, which enabled family members of civilians killed by military forces to intervene\nprocedurally in such cases.\nSince 2008, criminal and procedural rights have been at the forefront of Supreme Court\npromotion\xe2\x80\x94so much so that the Court has faced significant public controversy. While the 2008\nreforms to move the country to faster public trials and an adversarial system, where prosecutors\nand defense attorneys can present evidence and oral arguments (like in the US), represented a\nsignificant shift in criminal procedure, these reforms have not yet been fully instituted nationwide.\nAs noted, by 2013, only three of the thirty-two states had fully transitioned, while thirteen states\nhad partially transitioned. Hence full implementation of these institutional protections was not\nexpected prior to 2016 (the deadline), especially with the difficulty of retraining prosecutors,\nlawyers, police, and judges. Yet the Supreme Court has moved to enforce criminal and procedural\nprotections, especially through the presumption of innocence and firm conviction to due process\nrights. In 2013, the Court ruled that evidence obtained through torture and other violations of\nhuman rights is inadmissible. The Court also released a Canadian national who was in custody\nfor eighteen months on charges of attempting to smuggle one of Muammar al-Gaddafi\xe2\x80\x99s sons into\nMexico on the grounds that his due process rights were violated. Even more controversially, the\nCourt also ordered the immediate release of Florence Cassez, a French national who had been in\n\n24. See http://www.ohchr.org/EN/NewsEvents/Pages/hrprize.aspx\nHuman Rights and Court Activism in the Mexican Supreme Court | 569\n\n\x0cprison for eighty-five months after being convicted of kidnapping and murder as one of the heads\nof the Los Zodiacos gang, because her rights to due process were violated.\nIn terms of women\xe2\x80\x99s rights and discrimination, the Court has also made significant moves toward\nactively promoting rights. In 2012, the Court reinstated the original attempted murder charge in\na domestic abuse case and remanded the prosecution to a judge for a new trial, saying that the\nvictim\xe2\x80\x99s legal rights were violated when the charge was reduced by a lower-court judge. From\n2011 to 2013, the Court expanded abortion rights through a series of cases by striking down state\nlaws that declared that life begins at conception and decriminalized abortions. The Court also\nupheld state laws authorizing gay marriage in 2012 in a series of cases and required the recognition\nof those marriages across all Mexican states. In 2013, the Court ruled that antigay comments\nand homophobic speech are not protected speech, which marks the first case dealing with hate\nspeech heard by the Court. Indeed, in 2014 the IACHR applauded Mexico\xe2\x80\x99s Supreme Court for\nadopting a protocol that aims to help judges decide cases dealing with sexual orientation and\ngender identity in ways that conform to internationally recognized rights standards.\n\n25\n\nIn essence,\n\nthis protocol calls on judges to question the neutrality of the law applicable to a case if a situation\nof disadvantage is identified on account of gender identity or sexual orientation.\nHence even though Mexico has not been considered as pioneering or progressive with regard\nto rights\xe2\x80\x94even as recently as 2011 (see Helmke and R\xc3\xados-Figueroa 2011)\xe2\x80\x94important transitions\nare under way. Specifically, the Mexican Supreme Court has played an active role in promoting\nrights and enforcing them through reforms of the judiciary, military code, and criminal codes. For\nexample, consistent with the 2011 Court decision, both houses of the Congress of the Union passed\na reform of military justice code in 2014, ensuring that abuses committed by the military against\n26\n\ncivilians are investigated and heard in a civilian, rather than military, jurisdiction.\n\nFurthermore, Mexico\xe2\x80\x99s Supreme Court constitutionalized the IACHR\xe2\x80\x99s conventionality control\n\n27\n\nin\n\n25. See http://www.oas.org/en/iachr/media_center/PReleases/2014/095.asp\n26. See http://lawg.org/action-center/lawg-blog/69-general/1326-mexico-passes-historic-reformto-the-military-justice-code- (inactive link as of 5/21/2020)\n27. Conventionality control is a tool established by the IACHR, a supranational court, that essentially\ngrants judicial review powers to national courts. In short, conventionality control compels national\njudges to uphold the American Convention on Human Rights treaty obligations and IACHR case law.\nThis tool empowers domestic courts to review legislation under the parameters of the convention as\ninterpreted by the IACHR. In a sense, conventionality control refers to judicial supervision of\nnational legislation in general as well as declarations of ineffectiveness and declarations of\nnonconformity. The declaration of ineffectiveness is designed to ensure consistency between\ndomestic and international law, where domestic courts are able to evaluate and declare\ninconsistency in domestic laws and norms and act according to their competencies and procedures\n570 | Human Rights and Court Activism in the Mexican Supreme Court\n\n\x0c2011, where the Court recognizes the IACHR decisions as res judicata and thus binding. This 2011\nconstitutional amendment changed several articles of the Mexican constitution, creating a \xe2\x80\x9cnew\nlegal system of human rights protections\xe2\x80\x9d (Colli-Ek 2012) that places responsibility on all Mexican\nstate authorities to take into account treaties to which Mexico is a party and requiring them to\nalways favor rules that support the person. The Supreme Court has furthered issued decisions\nthat altered the way Mexican judges adjudicate human rights cases by introducing conventionality\ncontrol applied ex officio by all judges, thereby allowing judges to disregard domestic norms, laws,\nand administrative actions that breach international human rights treaties. Hence the Mexican\nSupreme Court dramatically changed the way judges (can) adjudicate.\nBeyond the High Court, conventionality control appears preliminarily effective at the lower levels\nas well. In 2012, just one year after the constitutional amendment, lower-court decisions in\nthree Mexican states (Jalisco, Nuevo Leon, and Oaxaca) made conventionality control arguments\nin 5.4 percent to 14.2 percent of human rights (direct amparo) cases. Specifically, lower courts\nin Jalisco made arguments using conventionality control in 5.4 percent of cases, Nuevo Leon\ncourts made the same conventionality control arguments in 13.6 percent of cases, and Oaxaca\nmade conventionality control arguments in their decisions in 14.2 percent of cases (Aguiar-Aguilar\n2014). These courts (and lawyers) still defend human rights protections using national laws more\noften than international law, but they frequently cite the American Convention on Human Rights,\nInternational Covenant on Civil and Political Rights, Universal Declaration on Human Rights, and\nUnited Nations Convention on the Rights of the Child.\nLawyers cited these international laws as well as conventionality control more frequently than\nthe federal judges, however, which is relatively unsurprising, since Mexican courts\xe2\x80\x99 adoption of\nconventionality control is so recent. In other words, litigation strategies change more quickly than\nlower-court judicial decisions after changes in domestic policy. Considering that lawyers and their\nlitigation are strategic (Wedeking 2010) and often responsive to changes in human rights laws\n(Simmons 2009), it seems logical that lawyers add these new legal norms and frames into their\nlitigation strategies.\nThe virtually immediate appearance of conventionality control and the frequent references to\ninternational law at Mexican state-court levels provide some evidence of the use of these legal\nrationales by both local lawyers and lower courts in addition to the significant changes by the\nMexican Supreme Court. While the Supreme Court appears to want to play an active role in\n\nto \xe2\x80\x9cdisapply\xe2\x80\x9d the violating law (Cast\xc3\xa1n 2013). Conventionality control obliges domestic judges to\ndisregard laws that fail to conform to the convention when articulating their arguments in a human\nrights case. Hence conventionality control is designed to expand domestic (legal) human rights\nprotections by inducing judges to decide cases according to what is established in the convention as\ninterpreted by the IACHR.\nHuman Rights and Court Activism in the Mexican Supreme Court | 571\n\n\x0ccatalyzing domestic legal change, promote human rights, and internalize international laws, this\npreliminary evidence provides limited but optimistic support that the Supreme Court is effectively\nfacilitating international human rights law incorporation.\n\nConclusions\nThese preliminary results reflect important trends in the role of courts in actively promoting\nhuman rights. In Mexico, the Supreme Court is increasing the number of rights cases they hear in\ntheir discretionary docket. This activism has signaled the Court\xe2\x80\x99s interest in and receptiveness to\nrights cases, which may persuade potential litigants to seek out the Court (see Baird 2007). Such a\nresponse to this signaling could explain the increase in amparo cases, which increased by roughly\n8.5 percentage points between 2009 and 2014. Trends in amparo cases in courts\xe2\x80\x99 mandatory\ndockets suggest that people are increasingly turning to the courts to resolve their rights issues.\n\n28\n\nFurthermore, judicial rulings by the Supreme Court since the 1994 reform, and especially after\n2000, have indicated the willingness of the Court to act independently of the executive and\neven rule against the government (Domingo 2005). These rulings\xe2\x80\x94along with the high levels of\ngovernment compliance to them\xe2\x80\x94have signaled to individuals, opposition parties, and political\n29\n\nopponents that legal mobilization is a useful means to assert legal boundaries (Domingo 2005).\n\n28. However, while courts are increasingly adjudicating and resolving rights issues, this activity may not\nbe unequivocally positive. One detriment is that it reflects more litigation, causing the mandatory\ndocket of these courts to grow substantially, creating unreasonable workloads for most courts. In\nresponse, courts must pay more attention to procedural requirements in order to throw out\nimproper cases. The incentive to reduce caseloads means that some cases are not being\nheard\xe2\x80\x94primarily due to procedural requirements. This could disenfranchise poor, uneducated, or\nrural rights-seeking litigants who may not enjoy support from lawyers or NGOs. Massive caseloads\ncan cause delays in trials and resolutions, which may lead to due process, criminal, and procedural\nrights infringements. Hence increased caseloads in predominantly mandatory dockets mean that\ncourts must eliminate cases on superficial bases and can effect the quality of decisions and their\nenforcement. Expanding due process rights can also negatively affect the legitimacy of the courts\nand judicial system when criminals are perceived to be better protected than victims. The release of\nperceived criminals may incentivize vigilante violence, where individuals take matters into their own\nhands rather than seek resolution through the judiciary.\n29. While the Mexican Supreme Court has become a credible, effective, and active political player, lower\ncourts\xe2\x80\x94for the most part\xe2\x80\x94have not undergone the same transformation. Lower courts remain\nembedded in their passive, corrupt, and subservient role to the local politics.\n572 | Human Rights and Court Activism in the Mexican Supreme Court\n\n\x0cThese results also suggest that there have been significant shifts in domestic law in terms of\nrights protections and that domestic courts are actively expanding substantive rights. While these\nresults cannot offer a systematic, widespread perspective on the activities of these courts, they\nsubmit that the court plays a meaningful role in the diffusion of human rights and enforcement of\ninternational human rights laws, which future research should address. Courts have the ability to\npromote and expand human rights protections in a unique way. In the case of Mexico, the courts\nappear to play active roles in determining human rights policy through their decisions.\nThis chapter only provides a preliminary analysis due to severe data limitations. Data collection is\nnecessary to systematically evaluate Court decisions on rights cases and the causal mechanisms\nfor changes observed, such as judicial ideology, constitutional amendments, conventionality\ncontrol, and domestic political pressures. Furthermore, it is important to discover whether federal\ncourt promotion affects individuals, especially when civil law mandates that most rights cases\ndo not set policy unless a specific majority is reached and/or a series of similar, consecutive\ndecisions occur. In terms of Mexico\xe2\x80\x99s judicial reform, will states adequately transition to the\nnew system to make the rights enshrined effectively enforced? Additionally, problems of police\ncorruption rampant in Latin America may cause the region to fall behind in several human rights\nareas. Also, one must consider how ideologies and the professionalization of justices affect the\ndecision to promote rights. How do international legal changes through conventionality control,\nfor example, compare to domestic institutional changes in their ability to influence international\nlaw internalization? Are these recent trends in rights promotion and court activism temporary or\npart of a longer process of the development of the rule of law? These questions illustrate that these\nmechanisms and courts are ripe for future research.\nNonetheless, this study suggests that domestic high courts may play a more active role in the\ndiffusion and enforcement of international human rights laws than previously assumed. Even\nin a country experiencing significant legal transitions, organized crime, intense violence, and\nwidespread government corruption, the Mexican High Court still appears to increasingly\nprioritize human rights cases, thereby improving the lives of its citizens and promoting the\ndiffusion of rights. As such, the domestic judiciaries of states\xe2\x80\x94even those beyond the typical\nWestern, liberal democracies\xe2\x80\x94may play a more significant role in the development of human\nrights regimes than credited.\n\nReferences\nAguiar-Aguilar Azul, Am\xc3\xa9rica. 2014. \xe2\x80\x9cHarmonizing National Law with Inter-American Human\nHuman Rights and Court Activism in the Mexican Supreme Court | 573\n\n\x0cRights Law: Evidence from Three Mexican States.\xe2\x80\x9d Paper presented at American Political Science\nAssociation Annual Meeting, Washington, D.C., August 28\xe2\x80\x9331, 2014. (\xe2\x86\xb5 Return)\nBaird, Vanessa. 2007. Answering the Call of the Court: How Justices and Litigants Set the Supreme\nCourt Agenda. Charlottesville: University of Virginia Press. (\xe2\x86\xb5 Return)\nCast\xc3\xa1n, Daniel Toda. 2013. \xe2\x80\x9cThe Transformation of the Inter-American System for the Protection\nof Human Rights: The Structural Impact of the Inter-American Court\xe2\x80\x99s Case Law on Amnesties.\xe2\x80\x9d\nEuropean Inter-University Centre for Human Rights and Democratization. (\xe2\x86\xb5 Return)\nColli-Ek, V. M. 2012. \xe2\x80\x9cImproving Human Rights in Mexico: Constitutional Reforms, International\nStandards and New Requirements for Judges.\xe2\x80\x9d Human Rights Brief 20 (1): 7\xe2\x80\x9314. (\xe2\x86\xb5 Return)\nDomingo, Pilar. 2005. \xe2\x80\x9cJudicialization of Politics: The Changing Political Role of the Judiciary in\nMexico.\xe2\x80\x9d The Judicialization of Politics in Latin America. Ed. Rachel Seider, Line Schjolden, and\nAlan Angell. New York: Palgrove McMillan: 21\xe2\x80\x9446. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3)\nDomingo, Pilar. 2000. \xe2\x80\x9cJudicial Independence: The Politics of the Supreme Court in Mexico.\xe2\x80\x9d\nJournal of Latin American Studies 32 (3): 705\xe2\x80\x94735. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3)\nHelmke, Gretchen and Julio R\xc3\xados-Figueroa. 2011. Courts in Latin America. New York: Cambridge\nUniversity Press. (\xe2\x86\xb5 Return)\nMarr\xc3\xa9, Ximena, and Cinthya Carvajal. 2007. \xe2\x80\x9cFallos en DD.HH. remecen a la Sala Penal.\xe2\x80\x9d El Mercurio.\nhttp://www.lanacion.cl/prontus_noticias_v2/site/artic/20071110/pags/20071110190833.html\n(inactive link as of 5/21/2020)\nR\xc3\xados-Figueroa, Julio. 2007. \xe2\x80\x9cFragmentation of Power and the Emergence of an Effective Judiciary\nin Mexico, 1994\xe2\x80\x932002.\xe2\x80\x9d Latin American Politics and Society 49 (1): 31\xe2\x80\x9457. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\n(\xe2\x86\xb5 Return 3)\nSeider, Rachel, Line Schjolden, and Alan Angell. 2005. The Judicialization of Politics in Latin\nAmerica. New York: Palgrove McMmillan. (\xe2\x86\xb5 Return)\nSimmons, Beth. 2009. Mobilizing for Human Rights: International Law in Domestic Politics. New\nYork: Cambridge University Press. (\xe2\x86\xb5 Return)\nStaton, Jeffrey K. 2010. Judicial Power and Strategic Communication in Mexico. New York:\nCambridge University Press. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3) (\xe2\x86\xb5 Return 4)\nStaton, Jeffrey K. 2007. \xe2\x80\x9cLobbying for Judicial Reform: The Role of the Mexican Supreme Court\nin Institutional Selection.\xe2\x80\x9d In Reforming the Administration of Justice in Mexico, Eds. Wayne\nCornelius and David A. Shirk. South Bend: Notre Dame University Press. (\xe2\x86\xb5 Return)\n574 | Human Rights and Court Activism in the Mexican Supreme Court\n\n\x0cTate, C. Neal, and Torbj\xc3\xb6rn Vallinder. 1995. The Global Expansion of Judicial Power. New York: New\nYork University Press. (\xe2\x86\xb5 Return)\nValenzuela, Carolina, and David Mu\xc3\xb1oz. 2007. \xe2\x80\x9cJueces de Garant\xc3\xada, los \xe2\x80\x98Ni\xc3\xb1os Terribles\xe2\x80\x99 del Nuevo\nSistema.\xe2\x80\x9d\n\nEl\n\nMercurio.\n\nhttp://diario.elmercurio.cl/detalle/\n\nindex.asp?id={866f9f23-9770-4e14\xe2\x80\x938de4-f167839b6ecf} (inactive link as of 5/21/2020)\nWedeking, Justin. 2010. \xe2\x80\x9cSupreme Court Litigants and Strategic Framing.\xe2\x80\x9d American Journal of\nPolitical Science 54 (3): 617\xe2\x80\x94631. (\xe2\x86\xb5 Return)\n\nClass Activity\n1. What are the institutional differences between the Mexican Supreme Court and America\nSupreme Court?\n2. How do these institutional differences impact the jurisdiction and decision-making of the\nCourts?\n3. How do the differences in discretionary versus non-discretionary dockets impact judicial\ndecision-making across these two high courts?\n4. Are all judges likely to make decisions to protect or expand human rights? Why or why not?\nWhat factors may determine whether (and to what extent) a judge is likely to support human\nrights? Explain your answers.\n\nHuman Rights and Court Activism in the Mexican Supreme Court | 575\n\n\x0c23. Explaining Dissent Rates on a\nConsensual Danish Supreme Court\nHENRIK LITLER\xc3\x89 BENTSEN, MARK JONATHAN MCKENZIE, AND JON K\xc3\x85RE SKIPLE\n\nDanish politics, and Scandinavian politics in general, has historically been popularized as\nconsensual (see Lijphart 1999; and to a lesser extent, see Elder, Thomas and Arter 1982). Any\ncursory student of Western European politics has encountered this characterization of the Danish\npolitical system. By way of example, a Western Europe reference book from 1982 describes the\nDanish political system as containing \xe2\x80\x9ca great measure of underlying stability despite a multi-party\nsystem\xe2\x80\x9d and asserts that \xe2\x80\x9csuch stability is due in large part to the Danes\xe2\x80\x99 tradition of tolerance and\ncompromise and to the overall consensus about political aims and democratic means\xe2\x80\x9d (Thompson\n1982, 267). More recent research challenges aspects of this convention (Arter 2006). Nevertheless,\nthis popular characterization of Danish politics as consensual extends to the Danish Supreme\nCourt as well (Christensen 2011b). In a 2011 news article, Danish Supreme Court judge Jens Peter\nChristensen wrote that the kind of politics observed on the US Supreme Court is absent in\nthe H\xc3\xb8jesteret (or Danish Supreme Court). Judge Christensen (2011b) describes Danish Supreme\nCourt judges as \xe2\x80\x9cboring\xe2\x80\x9d when compared to their counterparts on the US Supreme Court. And\nunlike the political divisiveness observed on the US Supreme Court, Judge Christensen argues that\nthe H\xc3\xb8jesteret\xe2\x80\x99s decisions often end with full agreement among the justices\xe2\x80\x94even on the most\n1\n\nimportant constitutional questions (Christensen 2011b). How accurate are Judge Christensen\xe2\x80\x99s\nclaims about the consensual nature of Denmark\xe2\x80\x99s highest court? And if the Court is consensual,\nwhat explains these levels of agreement? Could the explanation be as simple as that Danish judges\nare \xe2\x80\x9cboring,\xe2\x80\x9d as Judge Christensen surmises, or does this collegiality arise from an even more\nmundane explanation of the institutional rules governing H\xc3\xb8jesteret operations?\nIn this study of Danish Supreme Court decisions in 2014 and 2015, we set out to explore claims\nabout consensual decision making on the H\xc3\xb8jesteret. Our research from this time period confirms\nJudge Christensen\xe2\x80\x99s characterization of the court as very consensual. If we define consensus and\ncollegiality as judges expressing unanimous agreement with regard to who wins a case and what\nthe legal explanations are for the outcome, then the vast majority of Danish Supreme Court cases\nend in unanimity. The more important question, however, is why Danish judges might issue a\ndissent in the face of this strong norm of consensus. In this respect, our study perhaps raises\nmore questions than it answers. The paucity of cases containing dissents makes it difficult to\n\n1. Christensen notes that the two Maastricht cases regarding Denmark\xe2\x80\x99s EU membership and the case\non the Iraq War were all settled in unanimous votes (2011b).\n576 | Explaining Dissent Rates on a Consensual Danish Supreme\nCourt\n\n\x0cpinpoint why Danish justices are so consensual. Nevertheless, we do find that cases involving\nthe European Convention on Human Rights (ECHR) engender significant disagreement among the\njustices. Furthermore, some institutional features of the H\xc3\xb8jesteret provide some clues as to the\nhigh rates of collegiality.\nWe begin the study by addressing the question of why courts scholars would study dissent in\nthe Danish Supreme Court. Next, we explain the formal processes of decision-making in the\nH\xc3\xb8jesteret and address the typical causes of dissent in the judicial politics literature as they might\nrelate to Denmark. After describing the data for our chapter, we present our statistical results.\nFinally, we conclude with a discussion on the causes and nature of dissent in the H\xc3\xb8jesteret.\n\nWhy Study Dissent on the Danish Supreme Court?\nBoth judges and scholars of courts are interested in the nature of judicial dissent and collegiality\nbecause such behaviors carry certain benefits or drawbacks for courts (Edwards 2003). For\nexample, dissent could potentially damage a court\xe2\x80\x99s legitimacy and impede \xe2\x80\x9cthe efficient\nadministration of justice, because conflict among judges interferes with orderly disposition of\na court\xe2\x80\x99s caseload\xe2\x80\x9d (Hettinger, Lindquist, and Martinek 2006, 19\xe2\x80\x9320). Meanwhile, collegiality (as\nevidenced by unanimity) might increase the influence of a high court within a democratic system\nand foster greater legitimacy and respect for a court\xe2\x80\x99s decisions. Consider cases such as the US\nSupreme Court\xe2\x80\x99s Brown v. Board of Education (1954) or the Danish case involving an issue over the\n2\n\nIraq War. In each of these momentous decisions, these countries\xe2\x80\x99 Supreme Court justices reached\nunanimous verdicts. Presumably, justices on the highest court in these cases were motivated to\nissue a unanimous verdict (and avoid dissent) in order to strengthen these courts\xe2\x80\x99 influence on\npolicy. If collegiality (as evidenced by unanimity) is a desirable trait for a court, the study of what\ndrives collegiality on Denmark\xe2\x80\x99s Supreme Court is interesting because of its scarcity of dissent\n(see figure 1).\n\n2. In spite of the political controversy in Denmark over the country\xe2\x80\x99s decision to join as an active\nparticipant in President George W. Bush\xe2\x80\x99s \xe2\x80\x9cCoalition of the Willing\xe2\x80\x9d that invaded Iraq, Danish\nH\xc3\xb8jesteret Judge Christensen (2011b) points to the unanimity reached in the H\xc3\xb8jesteret\xe2\x80\x99s decision on\na lawsuit related to Denmark\xe2\x80\x99s involvement in the Iraq War as evidence of the level of collegiality of\nthat court.\nExplaining Dissent Rates on a Consensual Danish Supreme Court | 577\n\n\x0cFigure 1.\n\nJudicial scholars continue to search for those universal factors driving the \xe2\x80\x9cpuzzle of judicial\nbehavior\xe2\x80\x9d (Baum 1997), and research on decision-making in courts such as Denmark\xe2\x80\x94a country\nwith a high court that has a different legal culture and different institutional incentives in\ncomparison to the US Supreme Court\xe2\x80\x94can provide us with a fuller perspective on some of the\nuniversal factors influencing judicial decision-makers in democracies. The Nordic legal framework\noffers a unique perspective to accomplish this task. Nordic legal systems are not common-law\nsystems but rather somewhat in between common-law systems and the civil law systems of\ncontinental Europe (see Blume 2011; Hirschl 2011; Lindblom 2000). Unlike common-law systems,\nthe Danish legal system does not recognize the concept of binding precedent arising from prior\ncourt decisions; however, court decisions can represent an important source of law (Blume 2011).\nGiven the moderate importance of precedent, the Danish Supreme Court will sometimes cite\nits own past decisions and decisions of international courts, though not every case contains\ncitations to past precedent. Furthermore, unlike the US Supreme Court, where striking down the\nunconstitutional actions of another part of government is not unusual, such an event is almost\nnonexistent in Denmark. The 1953 Danish constitution does not provide the Danish Supreme\nCourt with the authority to review the constitutionality of government actions, and for a long\ntime, Danish legal scholars debated whether the H\xc3\xb8jesteret had this power of judicial review\n3\n\n(Christensen, Erichsen, and Tamm 2015). More recently, justices on the Danish Supreme Court\n\n3. We use the term judicial review in this study in its regular meaning in American legal\ncircles\xe2\x80\x94namely, as referring to a court\xe2\x80\x99s ability to review the constitutionality of the actions of\n578 | Explaining Dissent Rates on a Consensual Danish Supreme Court\n\n\x0chave been known to claim the power of judicial review in theory (see Christensen 2011a), and this\n4\n\nconcept has become more general in Denmark (Christensen, Erichsen, and Tamm 2015). But in\npractice, the H\xc3\xb8jesteret has engaged in judicial review only once in the last 150 years (Christensen,\nErichsen, and Tamm 2015; Wind 2010). Regardless of the extent of the Court\xe2\x80\x99s power of judicial\nreview, it is fair to say that the Danish Court exercises a higher level of deference toward other\nbranches of government (Rytter and Wind 2011) in comparison to either the United States or\neven its Nordic neighbor Norway. In many respects, Danish judges face different priorities and\nincentives and a very different legal culture from American jurists, and thus we have much to learn\nabout judicial behavior from Danish courts and judges.\nMoreover, when compared to judicial dissents in other democracies, Denmark\xe2\x80\x99s highest court\nprovides an interesting perspective on this type of judicial behavior. Figure 1 illustrates the stark\ndifferences in dissent rates between Denmark and the common-law countries of the United\nKingdom, Canada, and the United States. Looking at a similar time period, one notices that\nunanimity rates for cases in Denmark exceed 90 percent while unanimous opinions in the US\nconstitute less than half of all opinions for a comparable court term. Even Norway, a Scandinavian\nneighbor with a similar legal and political system to Denmark, has lower rates of unanimity\n(Bentsen 2018). Moreover, it seems the levels of unanimity in the Danish Supreme Court are even\nhigher when compared to the 1990s, when a previous Danish study found rates of unanimity\nat around 78 percent as it relates to five-judge panels and 72 percent for seven-judge panels\n(Andersen 2003). We\xe2\x80\x99ll address possible explanations for these intercountry differences later in\nthe chapter, but while there is no shortage of studies on dissent rates in courts in America (e.g.,\nBrace and Hall 1990, 1993; Epstein, Landes, and Posner 2011; Goldman and Lamb 1986; Hettinger,\nLindquist, and Martinek 2006), Canada, the UK, or Norway (Bentsen 2018; Hanretty 2013; Ostberg,\nWetstein, and Ducat 2004; Songer, Szmer and Johnson 2011), few studies have examined dissent\nin the Danish High Court (but see Andersen 2003; Skiple, Bentsen, and McKenzie 2019). And while\nresearch on European high courts has increased in recent years (e.g., Hanretty 2012, 2013; Dyevre\n2010; Grendstad, Shaffer, and Waltenburg 2015), quantitative political science studies on Danish\njudicial decision-making are practically nonexistent, with the exception of Wind (e.g., 2009, 2010)\nand Bentsen, McKenzie, and Skiple (2019).\n\nanother branch of government (e.g., Marbury v. Madison 1803). The usage of this term in British\nEnglish ascribes a different meaning to the concept that we do not employ in this study.\n4. In two cases in 1965, the Danish Supreme Court did nullify the parliament\xe2\x80\x99s assessment of the\nconstitutionality of a law without nullifying the law itself (Christensen 2011a).\nExplaining Dissent Rates on a Consensual Danish Supreme Court | 579\n\n\x0cJudicial Decision-Making in the Danish Legal System\nThe Formal Process of Decision\nBefore investigating the potential causes of judicial dissent in Denmark, it\xe2\x80\x99s important to\nunderstand how the Danish Supreme Court\xe2\x80\x99s decision process works in a formal sense. The Danish\nlegal system consists primarily of three levels of courts: the district courts (the byretten), the\nWestern and Eastern High Courts (the intermediate appellate courts known as the Landsretten)\nalong with the Maritime and Commercial Court (referred to as S\xc3\xb8- og Handelsrettens), and the\nH\xc3\xb8jesteret (the Supreme Court). For most cases, trials begin in a district court and, if appealed,\ngo to one of the high courts. In these instances, in order to go further and get into the Supreme\nCourt, litigants have to pass through the Procesbevillingsn\xc3\xa6vnet (Appeals Permission Board). The\nProcesbevillingsn\xc3\xa6vnet is a judicial body that acts as a gatekeeper for the Supreme Court, deciding\nwhich cases can proceed to appeal in the H\xc3\xb8jesteret. The Procesbevillingsn\xc3\xa6vnet is composed of a\nnoted lawyer, a law professor, two lower-court judges, and a Supreme Court justice. The Supreme\nCourt justice has some influence on what cases the Procesbevillingsn\xc3\xa6vnet decides to take, but\nthe board operates independently of the Supreme Court. There is also another route to the Danish\nSupreme Court. While the Eastern and Western Landsretten mostly function as appeals courts, in\n5\n\nsome kinds of cases\xe2\x80\x94usually deemed important\xe2\x80\x94the Landsretten function as the trial court. In\nthese instances, because all litigants have a constitutional right to appeal to at least one higher\ncourt, the Supreme Court is obligated to take these cases. Finally, the Danish judicial system has\na special court\xe2\x80\x94mostly for certain types of business and maritime litigation\xe2\x80\x94called the Maritime\nand Commercial Court. If the trial occurs in the S\xc3\xb8- og Handelsrettens court, then the litigants\nget an automatic appeal to the Supreme Court. In short, the H\xc3\xb8jesteret does not have control of\nits own docket (Bentsen, McKenzie, and Skiple 2019). This lack of control raises the possibility\nthat the Danish H\xc3\xb8jesteret might have to accept frivolous or easy cases, and it also potentially\nincreases the workload of Danish justices because they cannot limit the number of cases they\nhave to consider for decision (see Bentsen, McKenzie, and Skiple 2019). If we compare the Danish\nH\xc3\xb8jesteret to those countries listed in figure 1, we find that all the other courts, including the\n\n5. District court judges (the byretten) can offer to move a case directly to the Landsretten for trial\nwhen it appears to be of significant legal importance. If the Landsretten judges accept the district\ncourt offer, then the trial happens in the Landsretten, thus giving litigants an automatic appeal to\nthe Supreme Court. Furthermore, serious criminal cases also begin in the Landsretten, and when\nthe H\xc3\xb8jesteret hears serious criminal cases on appeal, it can only review the length of punishment\nand is not allowed to rule on guilt or innocence (Rytter and G\xc3\xb8tze 2001).\n580 | Explaining Dissent Rates on a Consensual Danish Supreme Court\n\n\x0cNorwegian Supreme Court, have almost full control of what cases they will accept to be argued\nbefore the court.\nThe decision-making process at the Court is not lengthy or complicated. The nineteen judges meet\nin rotating panels\xe2\x80\x94typically of three, five, or seven judges (Blume 2011)\xe2\x80\x94to hear oral arguments\nand make decisions in a case. Judges do not empanel themselves based on expertise in the law with\nrespect to the issues in the case; rather, all the judges on the court are expected to deal with all\nmanner of legal issues (Zahle 2007). After the parties present their oral arguments, tradition calls\nfor the courtroom to be emptied of the attorneys and public, and the doors to the public entrance\nare locked, with the judges inside. At this point, one of the judges\xe2\x80\x94called the \xe2\x80\x9cleading judge\xe2\x80\x9d\xe2\x80\x94lays\nforth all the legal arguments and facts of the case to her colleagues and suggests a decision.\nThis leading judge is also tasked with writing up an initial draft of the judgment prior to the oral\n6\n\nproceedings (Zahle 2007; Christensen, Erichsen, and Tamm 2015). After the leading judge speaks\nher opinion, the other judges then add their thoughts in order of seniority, and some judges may\neven have their own draft opinions prewritten as well, which can end up later replacing the draft\nopinion of the leading judge (Zahle 2007; Christensen, Erichsen, and Tamm 2015). After the formal\ndeliberation ends, the judges leave the courtroom, remove their robes, and retire to another room\nto begin the opinion-writing process (Zahle 2007). In reality, deliberation can continue in this\nroom as well. The process is very collaborative in a personal way, as all the judges sit together\nand write out the decision. Even if there are dissenters in a case, those dissenters will also sit and\n7\n\nhelp in the formulation of the judgment. It is also the case that a dissenting opinion may cause\nthe majority to write a lengthier opinion. According to one Danish legal scholar, \xe2\x80\x9cThe dissenting\nopinion initiates a process within the majority . . . with the task to justify the majority opinion [so\nthat] . . . judgments with an elaborate dissenting opinion are often more amplified than judgments\nwithout dissenting opinions\xe2\x80\x9d (Zahle 2007, p. 574\xe2\x80\x9375). Historically, judges were barred from publicly\ndissenting in cases until 1936, when anonymous dissents were then allowed (Zahle 2007). Judges\nwere not able to express dissents by name until 1958 (Zahle 2007). When a final judgment is\nwritten, the opinions are typically not very long and are written fairly quickly. Deliberations and\nthe writing of the opinion typically happen in a couple of days (Christensen, Erichsen, and Tamm\n2015). This process is in sharp contrast to the US Supreme Court, where US justices offer very\nlittle exchange of ideas during the initial secret conference proceedings, and where the work of\nopinion writing happens in isolation in a single judge\xe2\x80\x99s office over a number of weeks (Perry 1991).\nThe exchange of ideas and bargaining on the US Supreme Court does not really happen until much\n\n6. The judge who is tasked with presenting the case during these discussions and drawing up the\nintroductory sections of the opinion is the most junior in terms of seniority (Christensen, Erichsen,\nand Tamm 2015).\n7. This collaborative account, whereby even the dissenters help write the majority opinion, is based on\na conversation that one of the authors had with a former Supreme Court justice.\nExplaining Dissent Rates on a Consensual Danish Supreme Court | 581\n\n\x0clater, when draft opinions are circulated to other justices on the Court (Wahlbeck, Spriggs, and\nMaltzman 1998), and by that time, the views of the dissenters and the majority have undoubtedly\ncrystalized, though there are occasional instances where justices may change their minds and\nswitch sides.\n\nThe Politics of Decision-Making in Denmark\nIn terms of the political dynamics of the H\xc3\xb8jesteret in its decision-making, Danish legal scholars\ntend to agree that politics (at least in an ideological left/right perspective) appear absent in the\ndecision-making of the Court. While it seems unusual for a supreme court to be devoid of politics,\nthere is currently just not enough empirical evidence to determine to what extent H\xc3\xb8jesteret\njudges engage in political decision-making from a left/right perspective (or from some other\npolitical dimension). Since reforms on judicial selection were made in the 1990s, judicial candidates\nfor the Danish H\xc3\xb8jesteret are chosen by an independent judicial selection board called the Judicial\n8\n\nAppointments Committee. With the creation of this independent committee, the party in control\nof government effectively has little influence over new candidates chosen for the Supreme Court.\nNext, the potential candidate must sit on a number of cases with other Supreme Court judges, who\nthen grade his or her performance. The Supreme Court judges themselves then decide whether to\nadmit the nominated judicial candidate to the Supreme Court. This selection process undoubtedly\nprovides some insulation and political independence for judges that reach the bench, but it could\n\n8. Danish Supreme Court judges are appointed by the Judicial Appointments Committee, which was\ncreated July 1, 1999. The Judicial Appointments Committee has six members, consisting of the\nfollowing: a Supreme Court justice (nominated by the Supreme Court justices), a high court judge\n(nominated by the high court justices), a district judge (nominated by the Danish Judges Association),\na practicing lawyer (nominated by the Danish Bar Council; Advokatr\xc3\xa5det), and two representatives of\nthe public chosen by Kommunernes Landsforening and Dansk Folkeoplysnings Samr\xc3\xa5d (roughly\ntranslated as \xe2\x80\x9cLocal Government Denmark\xe2\x80\x9d and the \xe2\x80\x9cDanish Adult Education Association\xe2\x80\x9d). The\ncommittee only makes one recommendation to fill a vacant judicial position. Since the vast majority\nof judges in our data set were appointed after July 1, 1999, by the committee, the likelihood that the\nMinistry of Justice has exercised any substantial authority over the appointment process seems low.\nIn short, we find it difficult to justify coding whether the party in power favored the appointing\njustice given the current appointment process. A recent Danish Courts Administration pamphlet\nclaimed that the Ministry of Justice had never declined the Judicial Appointments Committee\xe2\x80\x99s\nrecommendations. And although the Minister of Justice is not absolutely required to accept the\nnomination by the committee, no minister has failed to comply with the committee\xe2\x80\x99s\nrecommendation, at least up through 2012.\n582 | Explaining Dissent Rates on a Consensual Danish Supreme Court\n\n\x0c9\n\n10\n\nalso further collegiality. Furthermore, the absence of any significant judicial review\n\nperformed\n\nby the H\xc3\xb8jesteret and the lack of support for the concept of judicial review among the major\n11\n\npolitical parties, along with Danish legal culture, also work against judges attempting to assert\ntheir politics from the bench (Wind 2009). Finally, the H\xc3\xb8jesteret judges lack control of their own\ndocket, which may require them to hear cases for which there is little ideological disagreement\namong the judges. Hence, if there are any ideological differences left among the judges given the\nconditions referenced above, previous research suggests that courts lacking in docket control\nexhibit less ideological disagreement in their decisions (e.g., Brace, Yates, and Boyea 2012; Hall\n1985). Thus there are institutional conditions at the H\xc3\xb8jesteret that have the potential to reduce\nincentives for judges to engage in ideological decision-making: (1) the collegial and collaborative\nprocess of decision-making and opinion writing as described above, (2) a rather nonpolitical\ncommission for appointing judges that is now disconnected from the Ministry of Justice, (3) a legal\nand political culture that encourages consensus rather than dissent and individualism, (4) a lack\nof docket control, and (5) and a lack of tradition in robust judicial review that makes the Court\nsomewhat subservient politically to the desires of the parliament.\n\n9. The Supreme Court appears to have an enormous influence on the appointment of new members.\nTo begin, the Judicial Appointments Committee sends a list of candidates to the president of the\nSupreme Court. After the president consults with other judges on the H\xc3\xb8jesteret, he or she then\nprovides a list of suggestions to the Judicial Appointments Committee. As noted, the committee only\nnominates one candidate. A nominated Supreme Court justice then has to sit through four cases and\nconstruct an opinion (though the nominee does not participate in the decision). The other justices of\nthe Supreme Court then grade this potential judge and decide whether to accept the candidate (see\nChristensen, Erichsen, and Tamm 2015). The authority of the Supreme Court judges to wield what is\nin effect a veto on who may ascend to the Court would seem to create conditions that would allow\nfor a perpetuation of collegiality on a future court. Candidates who do not mesh well in a work\nsetting with the Supreme Court or are perceived as having the potential to sow discord may have a\ntougher time surviving this last step in the appointment process. In practice, this prospect of\nrejection is rare (Christensen, Erichsen, and Tamm 2015). However, Supreme Court justices do have\nenormous influence over which candidate the committee chooses. According to Christensen,\nErichsen, and Tamm, \xe2\x80\x9cIt is difficult to imagine that the Judicial Appointments Committee would\ndiverge from following the recommendation of the Supreme Court\xe2\x80\x9d (2015, 19) Thus this appointment\nsystem should further encourage a consensual decision-making process and lessen dissent.\n10. The Tvind case (UFR 1999 p.841 H) demonstrates that the Court, at least in theory, has some form of\njudicial review, though this is the only time judicial review has been exercised in the last 150 years\n(see Wind 2010).\n11. In an op-ed in 2008, the Danish immigration minister stated, \xe2\x80\x9cCourts should not do politics, for that\nwe have elected politicians\xe2\x80\x9d (quoted in Wind 2009).\nExplaining Dissent Rates on a Consensual Danish Supreme Court | 583\n\n\x0cNevertheless, it is a rather unusual proposition in American judicial scholarship to suggest that\njudges\xe2\x80\x99 sociological and political life experiences do not influence their behavior or provide them\nwith perspectives that differ from their colleagues on the bench when arriving at decisions in a\ncase (Baum 2006; Segal and Spaeth 2002; Ulmer 1970; Tate 1981), and Nordic judges are no less\nhuman in this regard (see Bentsen, McKenzie, and Skiple 2019; Skiple, Shaffer, and Waltenburg\n2016; Grendstad, Shaffer and Waltenburg 2015;\n\n12\n\n. As Grendstad, Shaffer, and Waltenburg argue,\n\n\xe2\x80\x9ceverything we know about the formation of political attitudes militates against the likelihood that\nthese mature, highly educated members of the elite public are without preferences on the full\nrange of social, political, and economic issues that are argued before them\xe2\x80\x9d (2015, 6, chap. 1).\nCurrently, there are a few studies that suggest sociological and political background factors\nor other nonlegal factors affect judicial behavior in Danish tax cases (Bentsen, McKenzie and\nSkiple 2019; Skiple, Bentsen and McKenzie 2019), but there is no research exploring whether\nsociological background factors spur dissenting behavior in the Danish Supreme Court. This\nstudy incorporates some sociological background factors in order to test these propositions on a\npreliminary basis, but mapping out the sociopolitical space of the judges of the Danish H\xc3\xb8jesteret\nis beyond the scope of this particular chapter. Here, we focus on the effects of a judge\xe2\x80\x99s gender,\nhis or her career characteristics, and his or her birthplace region in the country.\n\nEstimating Dissent in Denmark\nIn this section, we outline a number of factors that may influence dissenting behavior in the\nDanish Supreme Court, connecting those factors to the broader political science literature on\njudicial dissents.\n\nSociological Background Factors\nFirst, as noted earlier, a primary motivator in dissenting behavior in US courts is ideology\n(Hettinger, Lindquist, and Martinek 2006). Unfortunately, no similar ideology measure is possible\nfor the Danish Supreme Court, and the current structure of judicial appointment makes it nearly\nimpossible to decipher whether the current party in control of the government and the Ministry\n\n12. For behavioral studies on countries elsewhere in Europe, see, e.g., Hanretty 2012 or H\xc3\xb6nnige 2009;\nsee also Dyevre 2010\n584 | Explaining Dissent Rates on a Consensual Danish Supreme Court\n\n\x0cof Justice favored the court appointment. Absent a reliable way to capture ideology at the Danish\nSupreme Court, we can still take advantage of a number of social background characteristics of\nthe judges for examining dissenting behavior on the H\xc3\xb8jesteret. During their career, judges do go\nthrough a socialization process (Baum 2006; Grendstad, Shaffer, and Waltenburg 2015; Hettinger,\nLindquist, and Martinek 2006). One possible representation of this political socialization Danish\njudges experience may involve where they were born. In the Norwegian Supreme Court,\nGrendstad, Shaffer, and Waltenburg (2015) have found some limited instances where judges born\nin Oslo behaved significantly different from those judges born in the periphery of Norway.\nDenmark\xe2\x80\x99s geographic layout\xe2\x80\x94with a large capital city on the far end of one side of the country\xe2\x80\x94is\nsimilar to Norway in the sense that there is an outsized capital and a geographically dispersed\npopulation on the periphery. As such, judges with a background born in the periphery might\napproach politics and law somewhat differently from their Copenhagen-born colleagues\n(including greater Copenhagen and the island of Zealand).\nSocial background work experience might also affect how collegial judges will be on a Court. As\nBlume notes, \xe2\x80\x9cMost judges have had a career in the Ministry of Justice although in recent years it\nhas been an aspiration that more judges should have another background\xe2\x80\x9d (2011, p. 32). To capture\nthe various judicial backgrounds of the judges, we coded for whether the judge spent any previous\ntime working at the Ministry of Justice, whether the judge had been a law professor in academia,\nand whether the judge was ever engaged in private practice before ascending to the bench. In\nprevious research on decision-making in Danish tax cases, Bentsen, McKenzie, and Skiple (2019)\nfind scant evidence that past work experience has much effect on H\xc3\xb8jesteret judges\xe2\x80\x99 behavior\nin tax cases. On the other hand, Bentsen (2018) found that former academics in the Norwegian\nSupreme Court were significantly more likely to issue dissents compared to their colleagues. Thus\nthe possibility exists that judges with private practice experience or experience in academia may\nhave broader disagreements with interpretations of the law compared to their fellow colleagues,\nthough this possibility seems low for Denmark.\nYears of experience on the H\xc3\xb8jesteret (seniority) is another judge characteristic we examine in\nour study. Judges with less experience may not feel confident enough to begin asserting dissents\nwith their more senior colleagues. In their study of US appellate courts, Hettinger, Lindquist,\nand Martinek write that \xe2\x80\x9cfreshman judges may be less inclined to author a separate opinion,\nbecause they are simply unsure about the appropriate circumstances in which such opinions\nare warranted . . . [and] may be more hesitant to challenge senior colleagues by dissenting or\nconcurring from majority opinions\xe2\x80\x9d (2006, p. 53). In a particularly collegial court such as the\nH\xc3\xb8jesteret, newcomers to the bench may be particularly reticent about dissenting.\n\nExplaining Dissent Rates on a Consensual Danish Supreme Court | 585\n\n\x0cCase-Level Legal Factors\nTo add to our social background variables of judges, we examine a number of contextual factors\nrelating to the cases themselves (Brace and Hall 1990; Hettinger, Lindquist and Martinek 2006).\nAccording to Hettinger, Lindquist, and Martinek (2006), \xe2\x80\x9cAll appellate cases are not created equal\xe2\x80\x9d\n(2006, p. 57), and therefore it is important to account for the types of legal cases that come before\nthe Court. We coded dummy variables for cases involving taxes, crime, labor law, European Union\n(EU) law, ECHR issues, and contract disputes. We have a number of reasons for examining these\ntypes of cases. Criminal cases in the US Supreme Court can be quite divisive and controversial,\nand we wanted to test for similar reactions in the Danish H\xc3\xb8jesteret. We also thought that tax\ncases might evoke dissents not only due to their complexity but also due to their importance\nbecause Denmark is a strong social welfare state and is reliant upon a robust tax system. In cases\ninvolving EU law, Denmark has shown reluctance to make references to the European Court of\nJustice (ECJ) compared to other countries (Wind 2010). Most references to the ECJ have been\ninitiated by the Supreme Court or the high courts (Wind, Martinsen, and Rotger 2009). With the\nH\xc3\xb8jesteret shouldering a good deal of this responsibility, it is possible that cases involving EU law\nmight generate more dissent, though research from Bentsen (2018) showed no effect on dissent\nfor EU law cases in Norway. Finally, we also account for cases involving issues stemming from the\nECHR. The specific incorporation of the ECHR into domestic law has brought some controversy\nas to how the convention and precedent from the European Court of Human Rights (ECtHR) apply\nin Denmark (Lebeck 2010). When human rights issues arise in cases, perhaps some Danish judges\nare looking to narrow the scope and power of the supranational court, the ECtHR. ECHR cases\ncan conjure an array of political debates and conceptions about democracy and the limitations of\ngovernment. Bentsen (2018) has found that ECHR cases increase dissent in Norway, and thus there\nis a real possibility that similar effects can be seen in the Danish H\xc3\xb8jesteret.\n\nInstitutional Factors\nFinally, we take account of contextual institutional factors that could affect rates of dissent. First,\nthe panel size of the court, which potentially is a measure of case salience, could affect dissent\nrates. Most judicial panels contain five judges. However, panel sizes can contain more than five\njudges (in cases deemed more important by the court). The larger the panel size, of course, the\ngreater the possibility for a dissent to occur in a case. Second, we consider whether the H\xc3\xb8jesteret\nset the case for oral argument or instead decided the case only under written submission in light\nof procedural rule (Retsplejelovens) \xc2\xa7378. If a case gets slated by the judges for consideration only\nin writing (without the benefit of oral argument for the parties), then the possibility increases that\nthe case is either not very important or not particularly complicated. In short, this institutional\n586 | Explaining Dissent Rates on a Consensual Danish Supreme Court\n\n\x0crule can be a measure of either case complexity or case salience (see Bentsen, Grendstad, Shaffer,\nWaltenburg 2019). Third, we examine whether dissent occurs more frequently in cases that are the\nfinal decision on the merits of the case (called dom cases in Danish) versus those cases heard by\nthe Court involving interlocutory appeals (referred to in Danish as kendelse cases and frequently\ninvolving issues in procedure). Interlocutory appeals are cases where a procedural dispute arises\nin the court below before the case is finished, and the litigants appeal those procedural issues to\nthe Supreme Court. If the Supreme Court takes up the procedural issue, then the case in the court\nbelow is put on hold until the Supreme Court resolves the procedural issue. We expect Supreme\nCourt dissents would be more likely to occur in cases that are final decisions on the merits or\noutcome of the case rather than preliminary cases involving procedural questions. Finally, we also\naccount for the high court from where the appeal originates.\nUnfortunately, we cannot test for the effects of docket control on dissent in our limited study.\nHowever, the literature on judicial behavior finds that courts without docket control are less likely\nto engage in dissent compared to courts with lots of discretion regarding the cases they accept\nfor consideration (Hall 1985; Pruet and Glick 1986; Eisenberg and Miller 2009).\n\nData on H\xc3\xb8jesteret Decisions\nThe data collected for this study include all H\xc3\xb8jesteret opinions published between January 1,\n2014, and April 30, 2015. During this sixteen-month period, the H\xc3\xb8jesteret issued 250 published\ndecisions, including interlocutory/preliminary appeals (kendelse cases) as well as decisions on the\nfinal merits of a case (dom cases). Yet judges on the court registered disagreements with each\nother in only 21 published decisions, which means only 8.4 percent of cases resulted in a dissent\n(see figure 2). This rate comes out to about one to two court cases per month where disagreement\nexists. During our period of study, twenty judges sat on the court, and seventeen of them issued\na dissent in at least one case. There were three judges in our data who never issued a dissent (see\ntable 1). Two very collegial judges were Judge F and Judge I (see table 1), who sat in seventy-seven\ncases and forty-five cases, respectively, without a single dissent from the majority.\n\nExplaining Dissent Rates on a Consensual Danish Supreme Court | 587\n\n\x0cFigure 2.\n\n588 | Explaining Dissent Rates on a Consensual Danish Supreme Court\n\n\x0cDanish Judge alias\n(names are\nredacted)\n\nWhen Judge Assumed\nBench\n\nDissenting Votes\n(n)\n\nDissenting Votes\n(Percent)\n\nVotes\n(n)\n\nA\n\n2014\n\n1\n\n2.3\n\n42\n\nB\n\n2013\n\n3\n\n6.1\n\n49\n\nC\n\n2012\n\n1\n\n1.8\n\n55\n\nD\n\n2012\n\n1\n\n1.9\n\n51\n\nE\n\n2011\n\n1\n\n1.3\n\n72\n\nF\n\n2010\n\n0\n\n0.0\n\n77\n\nG\n\n2009\n\n1\n\n1.3\n\n75\n\nH\n\n2007\n\n2\n\n2.7\n\n73\n\nI\n\n2006\n\n0\n\n0.0\n\n45\n\nJ\n\n2006\n\n0\n\n0.0\n\n3\n\nK\n\n2005\n\n1\n\n1.4\n\n68\n\nDifferent View\n\n2004\n\n6\n\n8.3\n\n72\n\nL\n\n2003\n\n1\n\n1.3\n\n72\n\nPrivate Sector\n\n2002\n\n3\n\n4.1\n\n73\n\nN\n\n2002\n\n3\n\n4.2\n\n71\n\nO\n\n2000\n\n1\n\n1.4\n\n70\n\nX\n\n1999\n\n5\n\n7.5\n\n66\n\nW\n\n1997\n\n1\n\n1.2\n\n79\n\nY\n\n1997\n\n1\n\n1.2\n\n80\n\nZ\n\n1996\n\n1\n\n4.1\n\n24\n\nTOTAL VOTES\n\n33\n\n1217\n\nTable 1. Dissenting votes of Danish Justices in all published cases from 2014 to April 2015\n\nWhen compared to the US Supreme Court, this measure of agreement among Danish judges is\nastounding, and some comparative perspective is in order. As reported, the US Supreme Court\xe2\x80\x99s\nrates of dissent are much higher than the H\xc3\xb8jesteret, though they have varied considerably over\n13\n\ntime.\n\nStill, at no time in modern history has the US Supreme Court ended a term with a dissent\n\nrate as low as 8 percent, which is what the Danish Court produced in 2014. Such a low rate\n\n13. Pritchett (1948) found rates of dissent back in the 1930s as low as 11 percent for one term. However,\nduring that time, the US Supreme Court had somewhat less control over its docket.\nExplaining Dissent Rates on a Consensual Danish Supreme Court | 589\n\n\x0cof dissent in the US Supreme Court seems impossible. In the 1970 term, for example, dissents\noccurred in 81 percent of cases at the US Supreme Court (Goldman and Lamb 1986). Even in the\nrecent term of 2013, where the US Supreme Court demonstrated the most collegiality in more than\nhalf a century, dissents were still issued in 39 percent of all cases heard that term (Sunstein 2014),\nover five times higher than the recent years of the H\xc3\xb8jesteret. The H\xc3\xb8jesteret\xe2\x80\x99s rates of dissent\n14\n\nmore closely approximate dissent rates in US appeals courts and some state courts.\n\nFrom an institutional perspective, rates of dissent are lower in US appeals courts and some state\ncourts because many of these courts engage in error correction and have no control over their\ndocket to weed out more mundane legal issues. The H\xc3\xb8jesteret also has no control over its docket,\nbut that feature may not completely explain the extremely high rates of collegiality, because as\nnoted earlier, the Procesbevillingsn\xc3\xa6vnet acts as a gatekeeper to keep out frivolous appeals and\n15\n\nlegal questions that contain an easy legal answer.\n\nThis review board at the H\xc3\xb8jesteret is unlike\n\nthe situation many US federal appeals courts and some state supreme courts face.\nAt the individual level, only thirty-three dissenting votes were issued by judges in the twenty-one\ncases where a dissent occurred. This number of dissenting votes is also very low when compared\nto the number of cases where dissents occur. What it means is that when there is a dissent in a\ncase, more often than not it is only a lone judge dissenting rather than a closely divided vote.\n\nResults: What Factors Explain Dissent on the Court?\nIn this next section, we examine three kinds of factors explaining dissent before briefly reporting\nthe results of a logistic regression of these various factors.\n\n14. Cross (2007) finds dissent rates across all US appeals courts to be less than 10 percent for many\ntypes of cases (rates of dissent in criminal cases are 8.3 percent, and in economic cases, they are 6.8\npercent), but in First Amendment cases, those rates are higher than 22 percent. McKenzie (2007) has\nfound rates of dissent in special three-judge US federal courts for redistricting cases to be as high as\n25 percent. Goldman and Lamb (1986) note how the DC Circuit Court of Appeals, which hears a lot of\npolitical cases, has a higher dissent rate than other appeals courts. But the norm in lower federal\nappeals courts and state supreme courts is one of collegiality, and this is not surprising given that\nthe federal appeals courts and a number of state supreme courts (especially those that have no\nintermediate court of appeal, such as Montana) have no control over their own dockets.\n15. A H\xc3\xb8jesteret judge does get to sit on the Procesbevillingsn\xc3\xa6vnet, but her vote is only one among a\nnumber of other members on the board.\n590 | Explaining Dissent Rates on a Consensual Danish Supreme Court\n\n\x0cIndividual-Level Factors\nAs noted in an earlier section, the sociological background of a judge could explain his or her\ndissenting behavior. We considered some of these explanations for dissents in the sixteen months\nof Danish Supreme Court decisions we examined. Table 1 illustrates how the twenty Danish\njustices engaged in dissents over these months. Due to norms in legal culture about judicial and\nindividual privacy in some parts of Continental Europe, we have obscured the names and genders\n\nExplaining Dissent Rates on a Consensual Danish Supreme Court | 591\n\n\x0c16\n\nof the justices and provided them with aliases.\n\nWhen considering the cases where dissents\n\noccurred, the table provides frequencies on the individual justices who dissented (see table 1).\nThe table shows that judge \xe2\x80\x9cDifferent View\xe2\x80\x9d registered the most dissents, both in absolute and\nrelative numbers, with six dissenting opinions, or about 8.3 percent of his votes. There is perhaps\nnothing unusual about Judge Different View\xe2\x80\x99s background before assuming the bench. He was\nborn in K\xc3\xb8ge (a short train ride from Copenhagen) and attended the University of Copenhagen.\nHe is about in the middle of the pack in terms of his experience on the Supreme Court. He\n\n16. Our decision to remove the names of these Danish justices stems from a number of concerns that\nrequire some additional explanation about the differences in legal culture and free speech between\nthe United States and Continental Europe. At least as far back as Marbury v. Madison (1803),\nAmericans have witnessed their courts\xe2\x80\x99 involvement in political controversies. In fact, the US\nSupreme Court\xe2\x80\x99s decision in Dred Scott v. Sanford (1857) helped precipitate the American Civil War.\nIn the 1930s, the press labeled the conservative dissenters on the US Supreme Court as the \xe2\x80\x9cFour\nHorsemen\xe2\x80\x9d\xe2\x80\x94referencing the biblical apocalypse\xe2\x80\x94because these justices opposed President Franklin\nD. Roosevelt\xe2\x80\x99s New Deal policies. A majority of American state judiciaries select at least some judges\nby some form of judicial election. In America, viewing courts through a political lens is not unusual.\nConsequently, in political science studies of American courts, scholars routinely and without\nhesitation mention the names of individual judges in academic studies when discussing their\nbehaviors on the court. However, in Continental Europe, the idea that judges might be involved in\npolitics is still somewhat controversial. Until recently, many European political scientists \xe2\x80\x9cignored\nthe courts\xe2\x80\x9d in their studies of politics, leaving the study of courts to law professors. Meanwhile,\n\xe2\x80\x9cmany [European] legal scholars seemed anxious to perpetuate\xe2\x80\x9d the idea that courts are not policy\nmakers but instead merely apply the law (Dyevre 2010, 298). And while some European academics\nare changing their perspectives on the role of courts in politics, some norms about legal culture and\nacademic research persist. For example, in June 2019, France criminalized the statistical analysis and\npublication of the individual behavior and votes of judges, a step that would be anathema to\nAmerican notions of free speech (see Simon Tayler, \xe2\x80\x9cFrance Bans Data Analytics Related to Judges\xe2\x80\x99\nRulings,\xe2\x80\x9d Legal Week, June 4, 2019, https://www.law.com/legal-week/2019/06/04/france-bansdata-analytics-related-to-judges-rulings/?slreturn=20190506120236). Violators face up to five years\nin prison. In Denmark, while it is not criminal to analyze (or publish) the voting behaviors or names\nof judges, naming how a certain judge voted in certain cases without that judge\xe2\x80\x99s express consent\nmight be viewed negatively by those connected to the legal profession or legal academia in\nDenmark. Furthermore, even aggregating publicly available data about public officials into a single\ndata file for public consumption could raise privacy concerns in Europe, where data privacy laws are\nstricter than they are in the United States. Thus given these social norms and legal concerns, and\nalso given the fact that identifying which judge dissented the most is not particularly important to\nour study or final conclusions, we decided to redact the names of the individual Danish justices\ninvolved in our research for this chapter and for the accompanying data file.\n592 | Explaining Dissent Rates on a Consensual Danish Supreme Court\n\n\x0cworked neither as an academic nor in the private sector, but rather spent nearly two decades\nworking in the Ministry of Justice. We could make similar observations about Judge \xe2\x80\x9cX,\xe2\x80\x9d the judge\nwho engaged in the second-highest number of dissents. Judge X was also born near Copenhagen\nand attended the University of Copenhagen, and he also has no private practice experience.\nHowever, Judge X spent most of his career as a lower-court judge. Judge Private Sector has a\nmoderate number of dissents, yet unlike Judges X and Different View, Judge Private Sector spent\na considerable amount of his career in private practice. The reality, however, is that dissents are\nrare even among those justices with the most dissents. Even more important, without more data\nover a number of years, it is perhaps premature for us to claim that certain justices are more prone\nto dissent than others.\nGoing beyond individual judges, we aggregated judges by their social backgrounds in table 2. What\nwe find just by looking at cross tabulations in table 2 is that there is practically no variance in\ndissenting behavior based on a judge\xe2\x80\x99s sociological background characteristics. As for experience\non the H\xc3\xb8jesteret (see table 1), there appears to be no regular pattern evident involving years\nof judicial experience and dissent. Certainly, the relationship is not linear. While the judges with\nthe most dissents tend to be concentrated among the judges with moderate to moderately high\nexperience on the Supreme Court, we also see that judges with the most experience register very\nfew dissents. In short, there is little evidence to make experience a potential driver of dissent.\nPerhaps one could conclude that the most experienced justices are typically in leadership roles\nand are less likely to dissent, whereas very junior judges who are new to the court will be more\nreticent to dissent as well (leaving the moderately experienced justices as the group most likely to\ndissent). However, without more data and given the rarity of dissents overall, such conclusions are\nmore speculative than definitive. Our logistic regression analysis confirms this view.\nBorn in\nAll\nGreater\nCases Copenhagen\narea\n\nBorn in\nPublic\nLaw\nthe\nSector legal\nProfessor\nperiphery\nexperience\n\nPrivate\nSector Legal\nExperience\n\nWorked in\nMinistry of\nJustice\n\nVotes in\nUnanimous\ndecisions\n\n1184\n(97%)\n\n552\n(96.5%)\n\n632\n(98%)\n\n122\n(98%)\n\n1061\n(97%)\n\n504\n(97.5%)\n\n782\n(97%)\n\nDissenting\nVotes\n\n33\n(3%)\n\n20\n(3.5%)\n\n13\n(2%)\n\n2\n(2%)\n\n31\n(3%)\n\n13\n(2.5%)\n\n23\n(3%)\n\nTable 2. All judicial votes from Jan 2014 to April 2015 divided by judge characteristic\n\nExplaining Dissent Rates on a Consensual Danish Supreme Court | 593\n\n\x0cCase-Level Factors\nAnother potential explanation for dissent concerns the types of cases the Court hears. Some\nkinds of issues should engender more dissent than others. Table 3 includes a number of different\ncategories of cases in our data. Most types of cases hover around the mean of 8 percent and do\nnot stand out as drivers of dissent.\n\nTax\n\nCrime\n\nECHR\nLabor Free\nContract\nissues\nLaw\nSpeech Dispute\nraised\n\nEU\nissues\nraised\n\nOther\n\nAll\nCases\n\nUnanimous decisions\n\n28\n\n31\n\n21\n\n4\n\n15\n\n22\n\n21\n\n114\n\n229\n\nCases with dissents (% of\ncases by topic with\ndissents)\n\n3\n3\n(10%) (9%)\n\n3\n(13%)\n\n2\n(33%)\n\n2\n(12%)\n\n6\n(21%)\n\n1\n(5%)\n\n7\n(6%)\n\n21\n(8%)\n\nTotal\n\n31\n\n24\n\n6\n\n17\n\n28\n\n22\n\n121\n\n250\n\n34\n\nTable 3. All cases from Jan 2014 to April 2015 divided by topic of case*\n\n*Cells do not add up to 100% because some case topics overlap with others (and not all case types\nare shown above). For example, 1 of the 2 Free Speech cases is also a criminal case.\nCases that raise questions of interpretation about the ECHR produce the most dissent. Justices\ndissent in about 21 percent of cases where either part or all of the case concerns the ECHR. In fact,\nthere is a strong statistical correlation between dissenting behavior and ECHR cases, not unlike\nwhat Bentsen (2018) found in Norway. This result is interesting, but further exploration into these\ncases provides inconclusive evidence of the nature of dissent in these cases.\nThese six ECHR cases in our sixteen months of data involve multiple legal issues, not just ECHR\nquestions. Only one of the dissents out of the six cases actually bothers to mention the ECHR. In\ntwo other cases, the dissenter refers to whether the lower-court judge was impartial but never\n\n594 | Explaining Dissent Rates on a Consensual Danish Supreme Court\n\n\x0cexplicitly mentions the ECHR.\n\n17\n\nFinally, in the three dissents in the other cases, the dissenters\n\nfocus their discussion on other legal issues.\nGiven the substance of the dissents in these cases of our study, it\xe2\x80\x99s not clear how much the\nECHR portion of the issues in these cases is causing disagreement among the justices. From a\nhierarchical perspective, some Danish legal scholars do not view the supranational ECtHR\xe2\x80\x94which\nis charged with oversight of European countries who are signatories to the ECHR\xe2\x80\x94as being a\nhigher court compared to the H\xc3\xb8jesteret; instead, they see it as existing on roughly the same level\n(Lebeck 2010). Furthermore, the ECHR is incorporated into national law as a statute, and thus\nfrom that perspective has no higher-order power over other domestic laws of the Danish state\n(Lebeck 2010). Nevertheless, perhaps there is something in the facts of these cases\xe2\x80\x94which also\ninvolve ECHR concerns\xe2\x80\x94that produce higher disagreements. According to Christensen, Erichsen,\nand Tamm, \xe2\x80\x9cThe European Convention on Human Rights . . . has created a legal foundation, which\nfrom time to time has brought the Supreme Court closer than previously to a political field of\ntension vis-\xc3\xa0-vis both the executive and the legislative powers\xe2\x80\x9d (2015, 49).\n\nInstitutional Explanations\nFinally, we consider some institutional causes of dissent and collegiality. One real possible\nexplanation for the lack of dissent in the Danish H\xc3\xb8jesteret is the Court\xe2\x80\x99s lack of docket control.\nFigure 1 provides suggestive evidence because every other supreme court listed in figure 1 has\nmore autonomy over its docket compared to Denmark. Unfortunately, our data cannot really\naddress this question because our study is focused on one country. However, we do investigate\nsome other possible institutional explanations.\nCase complexity can influence dissent rates, though how one measures case complexity is not\nstraightforward. One might be tempted to consider opinion length as a measure of case\ncomplexity. After all, the more complex a case is, the more explaining justices may have to do.\n\n17. These two cases deal with Article 6 of the ECHR and actually derive from the same set of facts\nregarding the bankruptcy of some housing cooperatives and the question of impartiality of a high\ncourt judge (at the S\xc3\xb8- og Handelsrettens court) after he made some comments off the bench. There\nwas no dispute over the legal interpretation and rules of the ECHR\xe2\x80\x94all judges signed off on the\ngeneral guidelines. However, the dispute came in the application of the ECHR to the facts. Yet the\nlone judge who dissented in the case did not specifically raise the topic of the ECHR in her dissent\nbut instead focused on the facts surrounding the judge\xe2\x80\x99s actions and whether she thought such\nactions were impartial.\nExplaining Dissent Rates on a Consensual Danish Supreme Court | 595\n\n\x0cThe word count in the opinions in our study, after excluding the number of words in a dissenting\nopinion, correlates highly with dissent. The problem with this measure in terms of the causal\narrow, however, is that dissenters\xe2\x80\x99 behaviors may be causing the majority to write a lengthier\nopinion in order to justify their decision (Zahle 2007; Epstein, Landes, and Posner 2011). One could\ncount the number of legal issues addressed in a case (Hettinger, Lindquest, and Martinek 2006).\nHowever, in the context of the Danish Supreme Court, this method could leave out other issues\n18\n\nconsidered by the justices but not included in the opinion (see Zahle 2007).\n\nThere are other measures of case complexity (Hettinger, Lindquest, and Martinek 2006). For\nexample, Bentsen, Grendstad, Waltenburg, and Shaffer (2019) develop a measure based on the\nlength of time the Norwegian Supreme Court sets for oral argument. When a case is more\ncomplex, the justices set aside a larger block of time. Unfortunately, we do not have that level of\ninformation for Denmark. However, the Danish Supreme Court does have a rule that allows the\nCourt to take cases by written submission only\xe2\x80\x94with no oral argument ( Retsplejelovens\xc2\xa7387). We\nassume that while more complex and controversial cases are set for oral argument, cases that\nare either of lesser importance or of less complexity are considered by written submission. This\nmethod is rather more blunt than measuring allotted time for oral argument, but it does have some\nvalue. The Danish Supreme Court set twenty-five cases for written submission during our period\nof study. Table 4 provides a breakdown of dissents in cases with oral argument versus written\nsubmission. We find that every single case slated for written submission is decided unanimously\nin our data. In other words, cases that are more complex engender more dissent, a phenomenon\nfound in other courts in other countries.\nNo Oral\nArgument\n\nOral\nArgument\n\nFinal decisions on the\nmerits\n(Dom cases)\n\nPreliminary\nprocedural cases\n(Kendelse cases)\n\nUnanimous\ndecisions\n\n25\n(100%)\n\n204\n(91%)\n\n118\n(90%)\n\n53\n(95%)\n\nCases with dissents\n(% of cases by topic with\ndissents)\n\n0\n(0%)\n\n21\n(9%)\n\n13\n(10%)\n\n3\n(5%)\n\nTable 4. All cases from Jan 2014 to April 2015 divided by institutional factors\n\nAnother potential useful measure of both case complexity and case salience is the size of the panel.\nFor each case heard in the H\xc3\xb8jesteret, the standard panel size is five judges, but the panel size can\nvary greatly sometimes. In our data, panels range from as few as three judges to as many as nine.\n\n18. Zahle (2007) notes that the scope of a Danish Supreme Court opinion is not necessarily\nrepresentative of all the issues considered by the justices.\n596 | Explaining Dissent Rates on a Consensual Danish Supreme Court\n\n\x0cIf a case is important or complex, the Court might assign nine justices. If the case is not complex\nor is less important (particularly for cases that are preliminary in nature), then the Court may only\nassign three judges. Cases with more judges may increase dissent rates because they are more\nimportant or more complex or simply because there are potentially more judicial opinions that\none has to accommodate as the panel size grows. Our results illustrate that not a single dissent\noccurs in the three-judge panels. On the other hand, as one increases from five judges onward, the\npattern is less clear.\nAnother institutional factor that could influence dissent is whether the case is a preliminary\nprocedural question (kendelse case) or a final decision on the merits (dom case). We find in our\ncross tabulations that there is some difference in levels of dissent, with dom cases containing\nhigher rates of dissent (see table 4). However, our logistic regression results\xe2\x80\x94when statistically\naccounting for the host of factors potentially causing dissent in the Danish H\xc3\xb8jesteret\xe2\x80\x94do not\nshow this variable as obtaining traditional levels of statistical significance.\nFinally, we also examine whether dissents in the Supreme Court are related to the three high\ncourts from which the case originates. For example, might cases from the Maritime and\nCommercial Court create more dissent than cases from the Western or Eastern High Courts? In\nthe end, we found no statistical difference in levels of dissent when considering the location of the\nlower-court opinion.\nThese cross tabulations can be helpful in understanding which factors influence dissenting\nbehavior, but multiple regression models provide a more robust method of determining whether\nany of the relationships we observe in the cross tabulations are statistically correlated after\naccounting for other potential independent variables. In other words, a multiple regression model\ncan more accurately pinpoint whether a statistical relationship exists between the independent\nvariables and dissenting behavior. In this study, because our dependent variable\xe2\x80\x94whether the\njudge dissents or agrees with the majority opinion\xe2\x80\x94is dichotomous, we employed a logistic\nregression model to determine what factors predict dissent. Of all the factors considered in our\nstatistical model, the only variable that showed statistical significance was whether the cases\ninvolved ECHR issues. Cases involving the ECHR were positively and significantly related to\ndissent. None of the other factors considered in the model were related at traditional levels of\nstatistical significance, though panel size and dom/kendelse cases came close to being statistically\n19\n\nsignificant. In short, many of the traditional factors that might explain dissent in a court showed\n\n19. In this logistic regression model, we tested variables to account for the judges\xe2\x80\x99 characteristics\n(whether the judge was born in greater Copenhagen or in the periphery, the gender of the judge, the\nseniority of the judge on the court in number of years served, and whether the judge had\nbackground experience in public or private practice or as a law professor), types of legal cases heard\nby the Court (whether the case involved ECHR issues, EU law issues, tax issues, labor issues, or\nExplaining Dissent Rates on a Consensual Danish Supreme Court | 597\n\n\x0cno statistical relationship here in Denmark. However, because the Danish Supreme Court is so\ncollegial and there is so little variance in the judicial votes on dissent, it perhaps is unlikely that\none might find very many factors that statistically predict dissent on the Danish Supreme Court.\n\nConclusion\nThe findings in this chapter demonstrate that the H\xc3\xb8jesteret is a very collegial judicial body. Rates\nof nonunanimous decisions from January 2014 to April 2015 constituted less than 10 percent of the\ncases. The primary factor that engendered dissent appeared to be ECHR cases. Case complexity\nand case salience, if measured by whether the Court held oral arguments in the case, also appear\nrelated to dissent levels. The Danish Supreme Court registered no dissents in our period of study\nconcerning cases submitted in writing without oral argument.\nGiven the level of collegiality, it is perhaps not surprising that the Danish periodical Mandag\nMorgen reported in 2009 that the public institutions for which citizens have the most confidence\n20\n\nare the Danish courts (Danish Court Administration 2010, 2015).\n\nThese low rates of dissent are\n\nakin to figures in some US circuit courts of appeal as well as some US state supreme courts.\nCommentators and political scientists often talk about the consensual nature of politics in\nDenmark and other Nordic countries (Lijphart 1999). As Danish legal scholar Henrik Zahle writes,\n\xe2\x80\x9cThere is a tacit but efficacious effort towards agreement\xe2\x80\x9d in the H\xc3\xb8jesteret (2007, 571\xe2\x80\x93572). Yet\nthough US appeals courts have similar levels of agreement, it is unlikely that such remarks about\nconsensual political behavior would be made about them.\nAre these low dissent rates explained by the Court\xe2\x80\x99s lack of docket control? It is important\nto remember that unlike some state supreme courts or the US courts of appeal, there is no\nautomatic right by Danish citizens to appeal to the H\xc3\xb8jesteret. Though the H\xc3\xb8jesteret cannot\n\ncontract disputes), as well as institutional factors (which high court the case was appealed from, the\nsize of the panel on the Supreme Court hearing the case, and whether the case was a final hearing\non the merits of the case [dom cases] or whether the case was a preliminary procedural issue\n[kendelse cases]). The variable on whether the Court held oral arguments or instead considered\nwritten submissions could not be included in the regression model because there was a perfect\ncorrelation between the holding of written submissions and the absence of a dissent (see table 4).\n20. It must also be noted, not surprisingly, that this 2009 poll was promoted by a document published\nby the Danish Court Administration. In a later 2015 publication of this pamphlet, the Danish Court\nAdministration cited research in 2014 by the Ministry of Justice, which claimed that among fortyseven European countries, citizens of Denmark had the highest level of confidence in their courts.\n598 | Explaining Dissent Rates on a Consensual Danish Supreme Court\n\n\x0ccontrol its own docket, the Procesbevillingsn\xc3\xa6vnet exercises this role for cases that are not\n21\n\nbeing appealed from a court of first instance.\n\nThe Procesbevillingsn\xc3\xa6vnet presumably acts as a\n\ngatekeeper in order to allow only the most important cases or cases with special circumstances\ninto the H\xc3\xb8jesteret\xe2\x80\x99s chambers. Frivolous appeals should thus only rarely arrive at the H\xc3\xb8jesteret\xe2\x80\x99s\ndoorstep. Nevertheless, even if most cases accepted by the Procesbevillingsn\xc3\xa6vnet are not\nfrivolous, a lack of docket control by the Court means that the Court does not have the authority\nto choose cases it finds interesting or significant or to control its own workload. The judicial\nappointment process could also play a role in high collegiality levels. The judges themselves have\nsignificant influence when it comes to who they accept onto the Court. In conclusion, while our\nstudy cannot rule out the possibility of a consensual politics unique to Denmark, the institutional\nstructures of the Court provide a reasonable explanation for its collegiality.\n\nCases Cited\nBrown v. Board of Education 347 U.S. 483 (1954). https://supreme.justia.com/cases/federal/us/\n347/483/\nDred Scott v. Sandford 60 U.S. 393 (1857). https://supreme.justia.com/cases/federal/us/60/393/\nMarbury v. 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(\xe2\x86\xb5 Return)\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2010. \xe2\x80\x9cThe Nordics, the EU and the Reluctance towards Supranational Judicial Review.\xe2\x80\x9d\nJournal of Common Market Studies 48(4) 1039\xe2\x80\x931063. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nZahle, Henrik. 2007. \xe2\x80\x9cJudicial Opinion Writing in the Danish Supreme Court (H\xc3\xb8jesteret).\xe2\x80\x9d\nScandinavian Studies in Law 51: 559\xe2\x80\x93580. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3) (\xe2\x86\xb5 Return 4) (\xe2\x86\xb5\nReturn 5) (\xe2\x86\xb5 Return 6) (\xe2\x86\xb5 Return 7) (\xe2\x86\xb5 Return 8) (\xe2\x86\xb5 Return 9) (\xe2\x86\xb5 Return 10)\n\nClass Activity\nQuestions for Consideration Using the dataset included with this article. Refer to the codebook\nfor help in manipulating the dataset. (https://github.com/osuoer/open-judicial-politics/raw/\nmaster/McKenzie,%20Bentsen,%20Skiple-data.xls)\n1. How often do judges dissent in relation to the size of the panel?\n2. How often do cases with dissent arise in each month of the dataset?\n3. What are dissent rates in cases that originate from the various high courts of Denmark?\n4. ECHR cases have significantly higher levels of dissents. Which high courts do these cases\noriginate from?\n5. Cases that occur under written submission, with no oral argument, garner no dissents in our\ndataset. What kinds of legal cases does the Supreme Court slate for written submission?\n6. Workload could be a factor in dissents. Judges who are busy may not have time to write\ndissents. Using the dates of the cases in the dataset, do judges who dissented have many\ncases assigned to them within the previous month?\nCODEBOOK: DANISH SUPREME COURT DATABASE\n\n604 | Explaining Dissent Rates on a Consensual Danish Supreme Court\n\n\x0cVariable name\n\nDescription\n\ncourtcase\n\nThis is the name of the parties in the Danish Supreme Court\ni\nproceeding.\n\ncase_no\n\nUnique number for each case\n\ncase_year\n\nYear case is decided at the Supreme Court\n\ndate_of_case\n\nDate case is decided at the Supreme Court\n\nufrnumber\n\nUfR (Ugeskrift for Retsv\xc3\xa6sen) journal reference number for each case\nii\n(example: U.2015.1H)\n\ncitation\n\nCitation number for cases at the Danish Supreme Court website\n\nCase\n\nEach separate case in the data is represented by a 1\n\niii\n\nLower court from where the case came on appeal to the Supreme\nCourt:\nHighCourt\n\n\xc3\x98stre = Eastern High Court;\nVestre = Western High Court;\nS\xc3\xb8- og Handelsretten = Maritime and Commerical Court; Gr\xc3\xb8nlands\nLandsret = Greenland High Court\n\nEastern_High_Court\nWestern_High_Court\n\n1 = Eastern High Court; 0 = Otherwise\n1 = Western High Court; 0 = Otherwise\n\nMaritime_Commercial_Court 1 = Maritime and Commerical Court; 0 = Otherwise\nGreenland_High_Court\n\n1 = Greenland High Court; 0 = Otherwise\n\nCase Factors\ndom_kendelse\nNo_oral_arguments387\npanel_size\ndissent_cases\n\nword_count\n\niv\n\n1 = Dom (judgments or final merits) and 0 = Kendelse (orders)\n1 = Cases taken by written submission under Rule 387;\n0 = Cases heard in oral argument\n\nThe size of the panel that heard the case. In this study, the panels varied\nin number between 3, 5, 6, 7, and 9 judges\n1 = Cases that contained at least 1 dissent\n0 = Unanimous decisions\nThe number of words in the majority opinion\n\nECHR\n\n1 = European Convention on Human Rights issue; 0 = otherwise\n\nEU_law\n\n1 = European Union legal issue; 0 = otherwise\n\nPrecedent\n\n1 = Precedent from a previous Danish Supreme Court case mentioned in\nthe opinion; 0 = otherwise\n\nExplaining Dissent Rates on a Consensual Danish Supreme Court | 605\n\n\x0cVariable name\n\nDescription\n\ntax_case\n\n1 = Tax issue; 0 = otherwise\n\ncrime_issue\n\n1 = criminal case; 0 = civil case\n\nLabor_case\n\n1 = case dealing with labor law issues; 0 = otherwise\n\nfree_speech\n\n1= free speech issue; 0 = otherwise\n\ncontract_dispute\n\n1= contract dispute; 0 = otherwise\n\nJudge Factors\nJudge_no\nvotedissent1\n\nBIRTHYEAR\n\nCENTRE_PHERIPHERY\n\nThese are the unique numbers we assigned to represent each judge on\nthe court\n1 = when a particular judge dissents in the case;\n0 = when a particular judge votes with the majority\nThis represents the year of the judge\xe2\x80\x99s birth. The judge\xe2\x80\x99s relative age can\nbe found by subtracting the BIRTHYEAR variable from the case_year\nvariable\n1 = Judge was born in Copenhagen or on the Island of Zealand,\nrepresenting the Greater Copenhagen\n0 = Judge was born in the periphery of the country outside the vicinity\nof the capital city.\n\nGENDER\n\n1 = Male judge; 0 = Female judge\n\nAPPOINTMENT_YEAR\n\nThis year represents the date that the judge was appointed to the court\n\nPRIVATE\n\n1 = if the judge had any previous private practice experience; 0 =\notherwise\n\nPUBLIC\n\n1 = if the judge had any practice experience in government; 0 =\notherwise\n\nJUDGE\n\n1 = if the judge had any previous experience as a lower court judge\nbefore ascending the bench to the Supreme Court; 0 = otherwise\n\nMINOFJUST\n\n1 = if the judge had any previous experience working in the Ministry of\nJustice; 0 = otherwise\n\nLAWPROFESSOR\n\n1 = if the judge had any previous experience as a law professor; 0 =\notherwise\n\ni. The appellant\xe2\x80\x99s name is always listed first. However, keep in mind that this particular dataset\ndoes not contain any coding for cross-appeals (cross-appeals are when multiple parties appeal\nthe judgment from below).\nii. Ugeskrift for Retsv\xc3\xa6sen is a weekly law journal published by a private company called the\nKarnov Group. The Supreme Court assists in editing the section containing the Supreme Court\ncases. This number is the reference number used by the Court when it refers to past precedent in\na decision.\n606 | Explaining Dissent Rates on a Consensual Danish Supreme Court\n\n\x0ciii. Each case appealed to the Danish Supreme Court is given a number. This number distinguishes\nthe case and is also used by the Danish Supreme Court website. The Danish Supreme Court\xe2\x80\x99s\nwebsite, where it maintains a publicly available dataset for approximately the last 10 years of cases,\nis located at http://domstol.fe1.tangora.com/S%C3%B8geside\xe2\x80\x94H%C3%B8jesteretten.31488.aspx\niv. Technically speaking, there are several different types of orders, with kendelse representing\nonly one type of order; however, all of the orders in this dataset are interlocutory in nature (i.e.\npreliminary), and the vast majority of them are in fact kendelse. Consequently, for the sake of\nsimplicity, we refer to all orders as kendelse.\n\nExplaining Dissent Rates on a Consensual Danish Supreme Court | 607\n\n\x0c24. At the Intersection of Law and Identity\nImmutable Characteristics, Voter Preferences, and Strategic Voting on State\nSupreme Courts\nAIDAN GONZ\xc3\x81LEZ, BAILEY R. FAIRBANKS, AND SHANE A. GLEASON\n\nIn 1992, Leah Wards Sears became the first Black woman to serve on the Georgia Supreme Court.\nWhile Sears was frequently mentioned on President Barack Obama\xe2\x80\x99s shortlists for US Supreme\nCourt vacancies, she faced serious electoral challenges in a state where nonpartisan state supreme\ncourt races are generally sleepy affairs. This is perhaps best illustrated by the Georgia Republican\nParty and the Georgia Christian Coalition\xe2\x80\x99s campaign to unseat Sears in 2004. This campaign\nwas prompted by Sears\xe2\x80\x99s frequent dissents in criminal procedure cases, especially death penalty\n1\n\ncases. Sears won reelection handily with 62 percent of the vote and was soon elevated to the\nchief justiceship by her colleagues. But the concerted effort against her underscores the electoral\nconsequences of decisions that do not align with voter preferences (e.g., Brace and Boyea 2008;\nCurry and Romano 2018). Since justices on almost all state supreme courts must face voters in\n2\n\nsome fashion periodically, they engage in strategic behavior to ensure voters give them another\nterm on the court (e.g., Baum 1994; Hall 1992). We argue this strategic behavior is shaped, in\nparticular, by justices\xe2\x80\x99 overlapping identities.\nRooted in the idea of judicial accountability (e.g., Bonneau and Hall 2009; Brace and Boyea 2008;\nDevins and Mansker 2010; Fernandez and Husser 2020), judicial elections prompt justices to\nstrategically alter their votes to be more in line with voter preferences (Hall 1992; Romano and\nCurry 2018). But not all justices are equally strategic (e.g., Baum 1994). While any number of things\nmight predict strategic behavior (e.g., Hall 2018; Murphy 1964; Peltason 1971), recent studies find\nit often turns on immutable characteristics such as race or gender (e.g., Collins and Moyer 2008;\nNguyen 2019). There is an extensive literature finding diverse justices decide differently from their\nWhite and male counterparts in some issue areas and under certain conditions (Collins et al. 2010;\nHaire and Moyer 2015; Kastellec 2013; Scheurer 2014). However, most studies focus on race or\ngender; rarely do they explore the intersection of minority statuses.\n\n1. See, for instance, Wilson v. State, 271 Ga. 811 (Ga. 1999); Fox v. State, 272 Ga. 163 (Ga. 2000);\nLaFontaine v. State, 269 Ga. 251 (Ga. 1998); State v. Davis, 283 Ga. 438 (Ga. 2008); Wilson v. State, 271\nGa. 811 (Ga. 1999); and Green v. State, 266 Ga. 439 (Ga. 1996).\n2. Justices in Massachusetts, New Hampshire, and Rhode Island serve for life or until a specified age\n(usually around seventy).\n608 | At the Intersection of Law and Identity\n\n\x0cWhen existing studies examine female judges they typically mean White women; when they look\nat Black judges, they usually explore Black men. This is problematic, as a number of studies note\noverlapping identities create altogether different patterns of behavior (e.g., Crenshaw 1989, 1991;\nDowe 2020; Szmer et al. 2015). Ultimately, one of the most fundamental questions in judicial\nbehavior is how a justice\xe2\x80\x99s characteristics shape her behavior. If scholars are to answer that\nquestion, it is imperative to account for how intersecting identities contribute to voting on state\nsupreme courts.\nIn this chapter, we explore whether intersectional justices strategically alter their decisionmaking calculus in election years to account for voter preferences. In doing so, we draw on\nclassic studies of state supreme court justice decision-making which find strategic behavior\nincreases as elections approach (Hall 1992) and literature stressing minority candidates are more\nstrategic and sophisticated than their less diverse counterparts (e.g., Milyo and Schosberg 2000;\nNguyen 2019) because of their lived experiences (Anzia and Berry 2011; Fox and Lawless 2005).\nWe test our expectations by analyzing all nonunanimous criminal procedure cases from twelve\nstate supreme courts from 1995 to 2005. We draw on a number of datasets (Fairbanks 2020;\nWindett and Hall 2013) supplemented with original data collection on election proximity for all\n109 justices who served in this time period. We find support for our expectations. Our chapter\nproceeds in several parts. First, we detail our theoretical expectations. We then overview our data\nand operationalization. We subsequently present our results. We then discuss our findings in the\nbroader context of the judicial politics literature and acknowledge the limitations of this study. We\nclose with suggestions for future scholars who might build on our study.\n\nStrategic Behavior, Election Proximity, and Justice Identity\nMany factors go into judicial decision-making, not the least of which is public preferences.\nEven federal judges, shielded by life tenure, consider public preferences for the purposes of\nimplementation (Fix et al. 2017; Johnson and Canon 1984), institutional legitimacy (Badas 2019;\nChristenson and Glick 2019), or the quality of their daily lives (Peltason 1971). Importantly, while the\npublic can critique or ignore the decisions of federal judges (e.g., Dolbeare and Hammond 1971),\nthey cannot actually harm the judge\xe2\x80\x99s continued tenure. This is not the case for state supreme\ncourt justices who must routinely face voters to secure another term. The precise electoral\nmechanism varies from state to state. Some justices face voters in competitive (non)partisan\nelections. In those using the Missouri Plan, voters answer a yes/no question on the ballot about\nwhether the justice should get another term. In a handful of states, the state senate votes on\nwhether the justice should remain on the bench (Goelzhauser 2018). If we accept that elected\n\nAt the Intersection of Law and Identity | 609\n\n\x0cofficials would like to remain in office (Mayhew 1974), justices must pay attention to voters and\ntheir preferences (e.g., Fernandez and Husser 2020; Curry and Romano 2018).\nWork on state supreme court decision-making repeatedly finds justices strategically alter their\ndecision-making calculus in high profile cases as elections approach (see for instance: Brace and\nBoyea 2008; Hall 1992). This work finds much of its genesis in a 1992 study by Melinda Gann Hall;\nthere Hall notes justices are more likely to vote to uphold death sentences in election years. While\nthis may deviate from a justice\xe2\x80\x99s sincere preference, she must take care to ensure her decisions\nare in line with the voters, even if this deviates from personal preferences (Brace and Boyea 2008).\nThe role of an impending election on strategic voting behavior is further underscored by another\nstudy examining judicial behavior in death penalty cases when all electoral restraints are removed.\nMany states have mandatory retirement ages for their judges. Thus a subset of judges is (re)elected\nbut face no future electoral pressures to consider voter preferences because their age precludes\nthem from seeking another term. Hall (2014) finds these terminal-term justices vote more liberally\nin death penalty cases than similarly situated justices who are eligible for reelection. In tandem\nwith Hall (1992), this provides strong evidence that justices strategically consider voter\npreferences as elections approach. But it is important to recall that justices vary in the extent\nof their strategic behavior (Baum 1994). Research on candidate emergence and campaigning, in\njudicial races and beyond, finds diverse candidates are often more strategic than their White and\nmale colleagues (Fox and Lawless 2005; Milyo and Schosberg 2000; Nguyen 2019).\nIn order to face reelection, one must first ascend to the bench. Despite evidence voters prefer\ndiverse justices (Arrington 2018) and do not electorally punish members of minority groups in\nsome instances (Gill and Eugenis 2019), women are more risk-averse when deciding to run for\noffice (Fox and Lawless 2005; Lazarus and Steigerwalt 2018). Indeed, women typically only commit\nto a race when they are well qualified (Milyo and Schosberg 2000; Nguyen 2019). This hesitancy to\nrun helps explain why many diverse jurists initially take the bench through appointment (Bratton\nand Spill 2002; Goelzhauser 2020). But even if a justice is initially appointed, she must soon face\nthe voters to continue her tenure. In anticipation of that and subsequent elections, she will likely\nengage in strategic behavior.\nIt is, of course, important for us to note that not all members of a given group have the exact\nsame experience; nor is any group monolithic. Ruth Bader Ginsburg and Amy Coney Barrett are\nboth women but have very different views on the law. Likewise, Thurgood Marshall and Clarence\nThomas, the only two African Americans to serve on the US Supreme Court, are ideologically\ndistant from each other. However, the fact remains, immutable characteristics contribute to\nunique experiences that may prompt a different way of looking at the world than one who has not\nlived that life (e.g., Boyd 2016; Norgren 2018).\nFemale state supreme court candidates are, on average, more strategic than their male\n610 | At the Intersection of Law and Identity\n\n\x0ccounterparts (Nguyen 2019). This can be partially attributed to the Jackie (Jill) Robinson Effect\n(Anzia and Berry 2011). Briefly, diverse officeholders, much like Jackie Robinson when he joined the\nBrooklyn Dodgers in 1947, have to be twice as good to be considered half as good. To this end,\nfemale state supreme court justices are more likely to receive discretionary citations from their\npeers on other courts (Gleason et al. 2020). In the current context, women and racial minorities\nare more strategic and should be more inclined to think about how their decisions could impact\ntheir fortunes on election day. But questions remain about women who are also racial minorities.\nExisting research suggests overlapping minority statuses should make these intersectional justices\neven more strategic.\n\nIntersectionality and Strategic Decision-Making\nThe scholarship on diversity in judicial decision-making usually looks at women or racial\nminorities (see, for instance, Boyd et al. 2010; Haire and Moyer 2015; Kastellec 2013; Walker\nand Barrow 1985). However, what of jurists like Justice Sears who are both female and a racial\nminority? To this end, Crenshaw (1989) introduces the concept of intersectionality, which occurs\n3\n\nwhen an individual has multiple intersecting minority statuses. Intersectional identities create\nexperiences that cannot be fully captured by just one minority status. Crenshaw (1991) examines\nthe experiences of a Black woman pursuing employment discrimination litigation in the 1980s.\nAt the time, the law allowed for discrimination claims on the basis of gender or race, but not\nboth simultaneously. While there have been gains in recent years, intersectional discrimination\nclaims remain \xe2\x80\x9ccomplex\xe2\x80\x9d and complicated by both structural and ideological factors (Mayeri 2015).\nThis makes it difficult to impossible for a Black woman to fully articulate her experience at the\nintersection of two minority identities. Importantly for our purposes, Crenshaw\xe2\x80\x99s (1991) example\nplays out repeatedly in a growing body of work on intersectional judges.\nIn the last fifteen years, the number of intersectional judges on state supreme courts has grown\nrapidly, but they still make up a small percentage of the bench (Goelzhauser 2020). Against this\nbackdrop, there are a small but growing number of studies looking at intersectionality in the\nlegal profession broadly and the judiciary specifically. These studies generally find intersectional\nidentities lead to distinct patterns of strategic behavior. Intersectional attorneys have higher levels\nof perceived discrimination (Collins et al. 2017), which necessarily results in a more difficult path\nto the bench. However, after intersectional lawyers ascend to the state trial court bench, they\n\n3. While the potential number of intersectional identities is boundless, we focus here on one of the\nmost common types of intersectional identities, race and gender.\nAt the Intersection of Law and Identity | 611\n\n\x0care more ambitious than their counterparts (Jensen and Martinek 2009). Should this ambition\nlead them to the state supreme court, intersectional justices are more likely to support criminal\ndefendants than their nonintersectional counterparts (Collins and Moyer 2008).\nOther research indicates intersectional justices exhibit a distinct judicial style sooner than their\nunidimensional minority colleagues. Early studies of judicial diversity find women and racial\nminorities decided similarly to their White and female counterparts under most conditions (e.g.,\nSonger et al. 1994; Songer and Crews-Meyer 2000; Walker and Barrow 1985). However, once\nwomen obtain a considerable number of seats on a given court, they exhibit a distinct decisionmaking style (e.g., Collins et al. 2010; Scheurer 2014). While intersectional justices are few in\nnumber (Golezhauser 2020; Szmer et al. 2015) note that intersectional justices take on a distinct\ndecision-making style even when occupying a token number of seats on a court. This underscores\nthat intersectional identities prompt a different strategic calculation than that employed by\nwomen or racial minorities. Thus, much as Crenshaw (1991) argues race or gender cannot fully\ncapture the experiences of Black women filing suit, we contend existing accounts of strategic\nbehavior by justices must likewise account for intersectional identities.\nFor over half a century, scholars have repeatedly found judicial behavior is partially based on\na judge\xe2\x80\x99s experiences (see, for instance, Boyd et al. 2010; Glynn and Sen 2015; Pelatson 1971).\nImportantly, experiences are shaped by identities and their intersection (Crenshaw 1989, 1991;\nHaire and Moyer 2015; Norgren 2018). To this end, accounts of strategic behavior on state supreme\ncourts must account for justice identities and their intersection. We explore this in the context of\nvote direction as elections approach. We expect to find that while women and minority justices\nwill more strategically consider voter preferences in election years than their less diverse\ncounterparts (e.g., Nguyen 2019), intersectional judges will be the most strategic and exhibit the\nmost attention to voter preferences (Crenshaw 1989, 1991).\n\nData and Methods\nWe evaluate our argument with a dataset of all nonunanimous criminal procedure cases from 1995\nto 2005 for the states of Alaska, California, Georgia, Illinois, Louisiana, Maine, Michigan, Oregon,\nPennsylvania, South Dakota, Vermont, and West Virginia (Windett and Hall 2013). These states are\nadvantageous as they represent a cross-section of state supreme courts with respect to selection\nmechanism. Additionally, Fairbanks (2020) compiles demographic information on all justices who\nsat on these courts over the period of our study. This allows us to account for justice race, gender,\nand length of tenure. Using Kritzer\xe2\x80\x99s (2015) data on state supreme court elections, we note the\n\n612 | At the Intersection of Law and Identity\n\n\x0cyears in which each jurist faces voters. We ultimately are able to analyze 4,518 justice votes across\n4\n\n776 cases. We now turn to a more in-depth account of how we construct our data.\nHall (1992) finds justices usually vote to uphold death sentences in election years. Thus we use\nthe direction of the justice vote to serve as our dependent variable. This means we need to know\nwhether a justice\xe2\x80\x99s vote in a given case is liberal or conservative. Unfortunately, Windett and Hall\n(2013) do not include a measure of ideological direction in their dataset of state supreme court\ndecisions. However, we are able to create one by utilizing a unique feature of criminal procedure\ncases; the accused is always liberal and the state actor is always conservative (Gleason and Provost\n2016; Segal 1984). Accordingly, we write a text crawler to search the petitioner and respondent\nvariables for words typically associated with the state or law enforcement. Sample words include\nstate, probation, sheriff, and warden. Using this technique, we are able to determine which of\n5\n\nthe two parties represents the state and is therefore the conservative party. We then use the\ndisposition, or summary, variable to determine whether the Court ruled for the petitioner or\nthe respondent. If the justice supports the criminally accused, she has cast a liberal vote and\ntherefore the dependent variable takes on a value of 1. Should she support the state, she has cast\na conservative vote and the dependent variable is set to 0.\nOur primary independent variables exist on the justice level. We employ two of Fairbanks\xe2\x80\x99s (2020)\ndichotomous identity markers. We set a gender variable to 1 if a justice is female, 0 otherwise.\nIn a similar fashion, we set a race variable to 1 if a justice is Black; 0 otherwise. Since we posit\nthat intersectional judges approach judging differently, we multiply our race and gender variables\ntogether. This takes on a value of 1 for Black female justices and 0 for all other justices. We also\nnote if each vote is cast in a year in which the justice faces reelection. We do so via Kritzer\xe2\x80\x99s (2015)\ndata on state supreme court elections. This variable is set to 1 if it is an election year for a given\njustice, 0 otherwise.\n\n6\n\nWe utilize Berry et al.\xe2\x80\x99s (1998) ideology scores to note voter preferences. This measure, updated\ncontinuously since its initial release in the late 1990s (e.g., Berry et al. 2010), has two scores for\nstate political preferences: one for citizens and another for state institutions. For each justice,\n\n4. We exclude senior status justices and lower court judges sitting by designation.\n5. In a small number of cases, neither of the party names is readily associated with the state. In these\ninstances, we read the procedural history for the case for clues as to which party is the state.\nAdditionally, in a small number of cases, particularly those that are cross appealed or those that have\nnames such as Ex parte Smith, we are unable to determine which party is liberal or conservative. We\nexclude those cases from analysis.\n6. Kritzer (2015) only includes data on states where justices are selected via (non)partisan or retention\nelections. For states in our data where justices are appointed, we utilize state court websites to\ndetermine when each justice was next due to face the state senate for reappointment.\nAt the Intersection of Law and Identity | 613\n\n\x0cwe use the score that corresponds to the voters that will decide continued tenure in office. For\njustices reelected by (non)partisan or retention elections, we utilize the citizen score. For justices\nretained by the state senate, we employ the state institutions score. The scores range from 0 to\n100 with higher values being more liberal. Since we argue strategic behavior is the product of the\ninterplay between identity, election proximity, and voter preferences, we interact with all three\nvariables. That is to say, we multiply our three primary independent variables together. Since we\nare interested in three separate identities, Black justices, female justices, and Black female justices,\nwe create three interaction terms. The first is (Black justice X election year X voter ideology). The\nsecond is (Female justice X election year X voter ideology). The final one is (Black female justice X\nelection year X voter ideology). These are our primary independent variables.\nWe also include a number of control variables suggested by the prior literature. Since different\nselection mechanisms tend to attract different kinds of jurists (e.g., Brace and Boyea 2008; Bratton\nand Spill 2002; Goelzhauser 2020; Hurwitz and Lanier 2003) and can even change a justice\xe2\x80\x99s\nstrategic calculation as she heads into reelection (Curry and Romano 2018), we include two\nvariables. The first is set to 1 for justices who are retained via (non)partisan elections and 0 for\nall others. The second variable denotes justices retained via retention elections. This is set to 1\n7\n\nfor justices in Missouri Plan states; 0 for all others. Since justices who are in their terminal term\nbecause of age restrictions are less likely to consider voter preferences (Hall 2014), we include\na dichotomous marker set to 1 if the justice is ineligible to run for another term because of age\n(Fairbanks 2020).\nA justice sitting on a less professionalized court, which is to say one with a heavy docket, less\nsupport, more mandatory cases, or less pay, may be inclined to deal with cases in the most routine\nmanner. Accordingly, we include a measure of court professionalism (Squire 2008). Since a longer\ntenure likely results in more efficient writing, we include a measure of the total number of years a\njustice is on the bench (e.g., Savchak and Bowie 2016). Finally, ideology is one of the most powerful\npredictors of judicial decision-making (e.g., Brace et al. 2000; Segal and Spaeth 2002). As such, we\n8\n\ninclude a measure of judicial ideology (Bonica and Woodruff 2015).\n\nSince our dependent variable is binary, we employ a logit model. Moreover, since it is possible that\n\n7. We also run a control mode where we remove the competitive election variable and replace it with\nan appointment variable. This does not change our results.\n8. There are several measures of state supreme court justice ideology (e.g., Windett et al. 2015; Bonica\nand Woodruff 2015; Brace, Langer, and Hall 2000). We utilize the cfScore measure developed by\nBonica and Woodruff (2015). We also run an alternative specification where we utilize the ideology\nscores developed by Windett et al. (2015). No matter which approach we use, our results are\nsubstantively the same.\n614 | At the Intersection of Law and Identity\n\n\x0cidiosyncratic characteristics of each court may shape the decision-making process (e.g., Kritzer\n2015), we cluster our standard errors on the state. We now turn to our results.\n\nResults\nWe find some limited evidence that Black justices are more strategic in election years. We find\nno evidence female justices engage in this calculus. However, we find strong evidence that\nintersectional justices strategically consider voter preferences as elections approach. Our results\nunderscore that while identity is a powerful predictor of behavior on state supreme courts, not all\nidentities operate in the same way. Indeed, intersectional identities shape judicial decision-making\ndifferently than a given identity in isolation. We now turn to a detailed discussion of our results.\nOur results are presented in table 1. An initial glance at the results indicates that Black justices\nare more likely to vote liberally. Female justices are less likely to vote liberally. Black female\njustices, for their part, are more likely to vote liberally. It also appears that voter preferences and\nelection-year decisions do not have an impact on the probability of a liberal vote. However, it\nis important to remember that we argue that identity, voter preferences, and election proximity\noperate in tandem. That is to say, we cannot evaluate our expectations without considering all\nthree independent variables at the same time. For this we must look to our interaction terms.\nTypically, we assess a hypothesis by \xe2\x80\x9cstar gazing\xe2\x80\x9d at the table and looking for stars next to our\nvariable of interest. If we do that for the interaction terms, we might conclude Black justices\nand Black female justices are more mindful of voter preferences in election years, but female\njustices overall are not. This approach to quickly assessing statistical significance does not work\nfor interaction terms because interaction terms have to consider all possible combinations of all\nthe variables included in the interaction. Fortunately, interaction terms can be easily assessed via\na graphical plot (Brambor et al. 2006).\n\nAt the Intersection of Law and Identity | 615\n\n\x0cVariable\n\nCoefficient Std Error\n\nBlack justice\n\n4.086\n\n(1.186)\n\n***\n\nFemale justice\n\n-0.902\n\n(0.529)\n\n*\n\nBlack female justice\n\n3.336\n\n(1.77)\n\n*\n\nVoter ideology\n\n--0.001\n\n(0.008)\n\nElection year\n\n0.014\n\n(0.533)\n\nBlack justice X voter ideology\n\n-0.072\n\n(0.021)\n\n***\n\nFemale justice X voter ideology\n\n0.020\n\n(0.012)\n\n*\n\nBlack female justice X voter ideology\n\n-0.072\n\n(0.034)\n\n**\n\nBlack justice X election year\n\n-1.834\n\n(0.561)\n\n***\n\nFemale justice X election year\n\n1.199\n\n(0.743)\n\nBlack female justice X election year\n\n-7.812\n\n(0.864)\n\n***\n\nBlack justice X voter ideology X election year\n\n0.033\n\n(0.013)\n\n**\n\nFemale justice X voter ideology X election year\n\n-0.020\n\n(0.018)\n\nBlack female justice X voter ideology X election year 0.182\n\n(0.016)\n\n***\n\nRetain by contested election\n\n-0.913\n\n(0.419)\n\n**\n\nRetain by retention election\n\n-0.396\n\n(0.439)\n\nMandatory retirement\n\n-0.070\n\n(0.285)\n\nCourt professionalism\n\n0.130\n\n(0.407)\n\nTenure\n\n-0.005\n\n(0.018)\n\nJustice ideology\n\n0.071\n\n(0.172)\n\nConstant\n\n0.613\n\n(0.569)\n\nN\n\n4518\n\nArea under ROC\n\n0.611\n\nTable 1: Predictors of justice liberal vote in non-unanimous criminal procedure cases\nStandard errors clustered on state\n*** = 0.01\n** = 0.05\n* = 0.10\n\nWe create three separate three-way interaction plots, one for each of the interaction terms.\nIn each, the first panel displays the interaction in nonelection years, the second panel displays\nelection years. The y-axis displays voter preferences, with higher scores representing more liberal\n616 | At the Intersection of Law and Identity\n\n\x0celectorates. The x-axis shows the impact of justice identity on the probability of casting a liberal\nvote. That is to say, higher values reflect a probability that the justice\xe2\x80\x99s identity will shape the\npropensity to vote liberally. The solid sloped line represents the effect of the justice race on the\nprobability of casting a liberal vote at that particular value of voter preferences. A positive slope\nmeans that as the liberalism of the voters goes up, the more likely justice identity is to shape the\ndecision to vote liberally. A negative slope means that as voter liberalism goes down, identity has\nless of an impact on the justice\xe2\x80\x99s decision to vote liberally. Importantly, at y = 0, there is a reference\nline. Should the dashed lines, which represent the 95 percent confidence intervals, include the\nreference line, the interaction is not significant at that particular value of voter ideology.\nWe now turn to interpreting the interaction figures. Figure 1 shows the interaction for Black\njustices. In the first panel, which represents nonelection years, we find as voters become more\nliberal, the justice race has a diminishing effect on predicting Black justice liberal votes.\nImportantly, once voter preferences pass approximately 50 (which is a pure moderate), voter\npreferences cease to predict Black justice liberal voting (as the dashed lines include the reference\nline). We note much the same in election years in the second panel. This suggests that in both\nnonelection and election years Black justices\xe2\x80\x99 liberal votes are shaped by voter preferences; but\nonly when the voters are more conservative.\n\nFigure 1: Interaction between election year, justice race, and voter liberalism\n\nIn figure 2 we evaluate the interaction term for female justices. The layout and interpretation of\nthe figure are the same as in figure 1. In both nonelection years and election years, we note the\nAt the Intersection of Law and Identity | 617\n\n\x0c9\n\ndashed lines always include the reference line at y = 0. This indicates identity does not shape\nfemale justice votes at any level of voter liberalism.\n\nFigure 2: Interaction between election year, justice gender, and voter liberalism\n\nFigure 3 displays the three-way interaction for intersectional justices. Looking first at nonelection\nyears, we note Black women are shaped by voter preferences at the extremes. That is to say, Black\nwomen consider voter preferences when a state is quite conservative. As a state becomes more\nliberal, identity exerts less influence over Black female justices\xe2\x80\x99 votes in nonelection years. When\na state is moderate there is no statistically significant effect. In election years, however, we find\nintersectional justices are highly strategic. When voters are conservative, Black women are less\nlikely to vote liberally. As voters become more liberal, Black female justices become more likely to\ncast liberal votes. This demonstrates that intersectional justices are attentive to voter preferences\nin election years and provides support for our expectations that intersectional judges are more\nstrategic than single-dimension minorities and all justices writ large. We also note one of our\ncontrol variables reaches statistical significance. Justices retained by contested elections have a\n\n9. In the election year panel, the reference line is excluded briefly from a voter liberalism score of\napproximately 35\xe2\x80\x9345. However, given the effect line is largely flat, we feel confident in saying that\nvoter preferences do not meaningfully shape female justice voting in election years.\n618 | At the Intersection of Law and Identity\n\n\x0cpredicted probability of casting a liberal vote of 0.22 lower than their peers retained by other\n10\n\nmeans.\n\nFigure 3: Interaction between election year, justice intersectionality, and voter liberalism\n\nDiscussion and Future Directions\nJudicial decision-making is a strategic enterprise in which justices weigh a number of competing\nfactors (e.g., Baum 1994; Maltzman et al. 2002; Murphy 1964; Spriggs and Wahlbeck 2002). Of\ncourse, strategic considerations are shaped by the context at hand (e.g., Campbell and Wilcox\n2020; Peltason 1971). At state supreme courts, these considerations include the justice\xe2\x80\x99s continued\ntenure on the court, particularly as election time approaches (Hall 1992; Curry and Romano 2018).\nWhile retaining office is a powerful motivator (e.g., Mayhew 1974), not all justices are equally\nstrategic. We demonstrate that strategic behavior is tied to justice identity.\nImportantly, we note that not all identities are equally associated with strategic consideration of\nvoter preferences. The most strategic justices are intersectional. Whereas Black judges appear to\nbe strategic only when a state is quite conservative and women do not appear to be strategic in\nelection years, we note that Black women are highly strategic. When the electorate is conservative\nshe is less likely to vote liberally. As the voters become more liberal, she becomes more likely to\n\n10. Since logit coefficients are unintuitive, we transform the coefficient to a predicted probability here.\nAt the Intersection of Law and Identity | 619\n\n\x0cvote liberally. This provides support for our expectations and underscores the importance of lived\nexperiences; identities can often overlap and intersect in ways that create unique experiences\nand alter the strategic calculus (e.g., Crenshaw 1989, 1991). While our findings add to our overall\nknowledge of strategic behavior, they also pose a number of new questions brought on by both\nlimits to our design and our results. In both instances, we encourage future scholars to more fully\nexplore this topic.\nPerhaps one of the primary limits to our study is the scope of our data. A future study, inclusive\nof the other 39 states and more recent terms, will allow scholars to produce a more nuanced\nunderstanding of how identity shapes judicial decision-making. This is particularly true as a\nnumber of scholars (Brace and Boyea 2008; Brace and Hall 1998; Curry and Romano 2018) stress\nthat changing institutional context shapes the strategic considerations a justice enters into. In\nrecent years elections have gotten more competitive (Hughes 2019, 2020; Kritzer 2015) and the\nideological map has changed. To this end, we find Alaska in 2000 is the most conservative state\n(ideology score of 21.4). This is not surprising and is consistent with 2021 popular understandings\nof ideology. However, the most liberal state in our data is West Virginia in 1998 (ideology score\nof 70.7). This is surprising in the 2020s, an era where West Virginia is one of the most reliably\n\xe2\x80\x9cred\xe2\x80\x9d states. But in the late 1990s, it was still a Democratic stronghold. While we suspect the main\npatterns of our results would hold in the more contemporaneous and diverse landscape today, the\ncontours of our results would change slightly.\nBeyond the changing institutional and ideological map, one of the primary benefits to expanding\nthe temporal scope of our data is the growing diversification of state supreme courts. While\nthirty-six Black women have served on state supreme courts from 1960 to 2016, twenty-two of\nthem took the bench after 2005 (Goelzhauser 2020). Since our data stops in 2005, we are only able\nto analyze three intersectional justices. It is possible that our findings are the product of a Leah\nWard Sears effect rather than an intersectionality effect. The addition of almost twenty additional\nintersectional justices would lend greater confidence to our findings and perhaps allow for further\nnuanced understanding of other overlapping identities.\nFuture studies should also look beyond criminal procedure cases. We adopt this restriction\nbecause Windett and Hall\xe2\x80\x99s (2013) data does not contain a direction variable. Given the rapid\nprogress in state supreme court case-level data (e.g., Brace et al. 2000; Hall and Windett 2013), we\nare hopeful future scholars will expand analysis to other issue areas. This would be particularly\nvaluable as the impact of identity on judicial decision-making is often issue area specific (e.g.,\nBoyd et al. 2010; Songer et al. 1994). Relatedly, legal considerations often restrict the range of\noptions available to justices in a given case (Epstein and George 1996). To this end, perhaps one\nof the largest limitations of our study is the omission of case-level legal factors from analysis,\nsuch as the presence of dissent on the intermediate court or whether the defendant alleges\nunconstitutionality (e.g., Segal 1984). We omit these factors from our model because our data\n620 | At the Intersection of Law and Identity\n\n\x0csource does not include them. We are hopeful that future work will be able to take this into\naccount.\nFuture studies might also look beyond the justice vote. While the justice vote is central to the study\nof judicial behavior, it is hardly the only activity of interest. Justices ultimately justify their view\nin written opinions. Importantly, opinions can be written to avoid retribution during retention\n(Curry and Romano and 2018). Scholars already know intersectional justices are more likely to\npen dissenting opinions than their nonintersectional peers (Szmer et al. 2015). Might, however,\nelectoral proximity alter the extent to which justices dissent? Drawing on recent work analyzing\nthe content of opinions (e.g., Corley 2008; Fix and Fairbanks 2020; Fix and Kassow 2020), we\nsuspect justices may temper the language in their opinions as elections approach (e.g., Bryan and\nRingsmuth 2016). Particularly as data on state supreme court decisions are becoming increasingly\navailable, we encourage future scholars to more fully explore this topic.\nOpinions are further complicated by the back-and-forth that occurs between coalition members\n(Maltzman et al. 2002). While dissents can be solo affairs, in closely split cases dissent authors\noften hope to seize the majority. A robust literature explores how justices accommodate or reject\nrequests from their colleagues in crafting opinions. While the literature indicates women are\nmore conciliatory and collaborative (Bear and Woolley 2011; Boyd 2016), there is evidence that\nintersectional jurists are more likely to break from the group and stand alone in dissent (Szmer\net al. 2015). Given these dynamics, we encourage future scholars to more fully explore what we\nsuspect is the highly nuanced relationship between identity and coalition formation.\nBuilding upon expansive work on race and gender, we contribute to the small but growing\nscholarship on intersectional state supreme court justices. We find intersectional justices are\nstrategic in ways different from Black justices and women justices. While previous work explores\nthis in the context of deciding to dissent, we have explored it here in the context of strategic\nconsideration of electoral factors when casting votes in criminal procedure cases. Our results\nindicate intersectional justices are highly strategic. While our study has limitations, we encourage\nfuture scholars to revisit our results with more expansive data. We also encourage future studies\nto explore the new questions posed by our results here.\n\nReferences\nAnzia, Sarah F., and Christopher R. 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New York: Cambridge University Press.\nMayeri, Serena. 2015. \xe2\x80\x9cIntersectionality and Title VII: A Brief (Pre-)history.\xe2\x80\x9d Boston University Law\nReview 95:712\xe2\x80\x9331.\nMayhew, David. R. 1974. Congress: The Electoral Connection. New Haven, CT: Yale University Press.\nMilyo, Jeffrey, and Samantha Schosberg. 2000. \xe2\x80\x9cGender Bias and Selection Bias in House Elections.\xe2\x80\x9d\nPublic Choice 105:41\xe2\x80\x9359.\nMurphy, Walter F. 1964. Elements of Judicial Strategy. Chicago: University of Chicago Press.\nNguyen, Tony. 2019. \xe2\x80\x9cWhy Women Win: Gender and Success in State Supreme Court Elections.\xe2\x80\x9d\nAmerican Politics Research 47 (3): 582\xe2\x80\x93600.\nNiven, David, Alexis Straka, and Anwar Mhajne. 2019. \xe2\x80\x9cWho Reveals, Who Conceals? Candidate\nGender and Policy Transparency.\xe2\x80\x9d Political Research Quarterly 73 (2): 396\xe2\x80\x93408.\n\n626 | At the Intersection of Law and Identity\n\n\x0cNorgren, Jill. 2018. Stories from Trailblazing Women Lawyers: Lives in the Law. New York: New York\nUniversity Press.\nPearson, Kathryn, and Eric McGhee. 2013. \xe2\x80\x9cWhat It Takes to Win: Questioning \xe2\x80\x98Gender Neutral\xe2\x80\x99\nOutcomes in U.S. House Elections.\xe2\x80\x9d Politics & Gender 9 (4): 439\xe2\x80\x9362.\nPeltason, Jack. 1971. Fifty-Eight Lonely Men: Southern Federal Judges and School Desegregation.\nChicago: University of Illinois Press.\nSavchak, Elisha Carol, and Jennifer Barnes Bowie. 2016. \xe2\x80\x9cA Bottom-Up Account of State Supreme\nCourt Opinion Writing.\xe2\x80\x9d Justice System Journal 37 (2): 94\xe2\x80\x93114.\nScheurer, Katherine Felix. 2014. \xe2\x80\x9cGender and Voting Decisions in the US Court of Appeals: Testing\nCritical Mass Theory.\xe2\x80\x9d Journal of Women, Politics & Policy 35 (1): 31\xe2\x80\x9354.\nSegal, Jeffrey. 1984. \xe2\x80\x9cPredicting Supreme Court Cases Probabilistically: The Search and Seizure\nCases, 1962\xe2\x80\x931981.\xe2\x80\x9d American Political Science Review. 78 (4): 891\xe2\x80\x93900.\nSegal, Jeffrey, and Harold Spaeth. 2002. The Supreme Court and the Attitudinal Model Revisited.\nNew York: Cambridge University Press.\nSen, Maya. 2015. \xe2\x80\x9cIs Justice Really Blind? Race and Reversal in US Courts.\xe2\x80\x9d Journal of Legal Studies\n44 (1): 187\xe2\x80\x93229.\nSonger, Donald, and Kelley Crews-Meyer. 2000. \xe2\x80\x9cDoes Judge Gender Matter? Decision Making in\nState Supreme Courts.\xe2\x80\x9d Social Science Quarterly 81 (3): 750\xe2\x80\x9363.\nSonger, Donald, Sue Davis, and Susan Haire. 1994. \xe2\x80\x9cA Reappraisal of Diversification in the Federal\nCourts: Gender Effects in the Courts of Appeals.\xe2\x80\x9d Journal of Politics 56 (2): 425\xe2\x80\x9339.\nSquire, Peverill. 2008. \xe2\x80\x9cMeasuring the Professionalism of U.S. State Courts of Last Resort.\xe2\x80\x9d State\nPolitics & Policy Quarterly 8 (2): 223\xe2\x80\x9338.\nSzmer, John, Robert K. Christensen, and Erin B. Kaheny. 2015. \xe2\x80\x9cGender, Race, and Dissensus on\nState Supreme Courts.\xe2\x80\x9d Social Science Quarterly 96 (2): 553\xe2\x80\x9375.\nWahlbeck, Paul, James F. Spriggs, and Lee Sigelman. 2002. \xe2\x80\x9cGhostwriters on the Court? A Stylistic\nAnalysis of US Supreme Court Opinion Drafts.\xe2\x80\x9d American Politics Research 30 (2): 166\xe2\x80\x9392.\nWalker, Thomas G., and Deborah J. Barrow. 1985. \xe2\x80\x9cThe Diversification of the Federal Bench: Policy\nand Process Ramifications.\xe2\x80\x9d Journal of Politics 47 (2): 596\xe2\x80\x93617.\nWindett, Jason, Jeffrey Harden, and Matthew E. K. Hall. 2015. \xe2\x80\x9cEstimating Dynamic Ideal Points for\nState Supreme Courts.\xe2\x80\x9d Political Analysis 23 (3): 461\xe2\x80\x9369.\nAt the Intersection of Law and Identity | 627\n\n\x0cDiscussion Questions\n1. The authors argue that justices\xe2\x80\x99 strategic behavior is shaped by their various identities. While\nthe choice to use race and gender was guided by data availability, what other justice\nidentities do you suppose might shape judicial behavior? How might they interact?\n2. Think about your own identities. How do they alter the way you view the political world? The\nlaw? Your daily life?\n3. Judicial decision-making is the product of political, legal, and strategic factors. However,\nbecause of limited data availability, the authors do not include legal factors in their model.\nHow might this alter their results?\n4. The authors use a compendium of data from the 1990s to the early 2000s. Since then\ndiversity in regard to gender and race in the state courts has vastly improved. What impact\ndo you think this has had on the interpretations of the law? Are there any particular issue\nareas that you think would have seen more of a change than others? Why?\n5. While the authors focus on representation and identity in the judiciary in the state supreme\ncourts, what effects do you think a more diverse representation at other courts, such as trial\ncourts, will have on the law?\n6. The focus here is on justices. While they are important, many other actors are present in the\ncourtroom, ranging from lawyers to court reporters. How do you suppose diversity in these\npositions might have an effect?\n\nGroup Activity\nVisit http://oyez.org and click on \xe2\x80\x9cCases\xe2\x80\x9d and select a few cases from the list. Read through the\n\xe2\x80\x9cFacts of the case\xe2\x80\x9d and the \xe2\x80\x9cQuestion.\xe2\x80\x9d Imagine you were a justice on that case and note your\nanswer to the question. Then in a group with your classmates, discuss how you arrived at your\nanswer. Even if everyone in your group agreed, did you arrive at your answers by different means?\nHow did your various identities (be it as someone from an urban/rural area, a first-generation\nstudent, someone with a relative in a particular job, religious views, etc.) shape your thought\nprocess?\n\n628 | At the Intersection of Law and Identity\n\n\x0c25. To Publish or Not Publish\nExploring Federal District Judges\xe2\x80\x99 Published Decisions\nSUSAN W. JOHNSON, RONALD STIDHAM, KENNETH L. MANNING, AND ROBERT A. CARP\n\nThe federal district courts are the trial courts in the federal judicial system. Their rulings are\navailable to the public through the Federal Supplement, the official publication for the federal\ndistrict courts. The Federal Supplement does not include all decisions of the federal district courts;\nrather, its volumes include only those cases that are deemed sufficiently important for publication\nby the federal district court judge presiding over the case. Since many researchers rely on\npublished cases as their data source, it is important to understand the motivation federal district\ncourt judges have in selecting certain cases for publication. The Official Publication Guidelines\nof the US Judicial Conference outline criteria for publication; however, whether a case meets\nthe criteria is at the discretion of the presiding judge. This study explores patterns of federal\ndistrict decision publication to determine whether and the extent to which judges rely solely on\nthe official publication criteria when publishing their decisions. Understanding why judges publish\nsome decisions but not others may be helpful in elucidating the overall trial court decision-making\nprocess and understanding factors that motivate judicial processes and behavior.\n\nPrior Research on the Federal District Courts and Publication\nAs the major trial courts in the federal system, the US District Courts \xe2\x80\x9crepresent the basic point\nof input for the federal judiciary and are the \xe2\x80\x98workhorses\xe2\x80\x99 of the federal system\xe2\x80\x9d (Carp, Stidham,\nand Manning 2010, 14). Roughly 10 percent of all decisions rendered in the federal district courts\nare published (Vestal 1970; Rowland and Carp 1996; Songer 1988). This small percentage presents\nseveral questions. Are those cases selected for publication representative of all decisions rendered\nby the federal district courts? What are the factors that lead to their selection for publication?\nFormally, published opinions in the Federal Supplement are those \xe2\x80\x9cwhich are of general\nprecedential value\xe2\x80\x9d (Songer 1988, 206). Because the Federal Supplement only publishes \xe2\x80\x9cthose\ndecisions which the judges themselves (or their clerks) regard as inherently significant and\nworthy,\xe2\x80\x9d many scholars argue that decisions published in the Federal Supplement represent the\nmajor policy decisions of the federal district courts (Rowland and Carp 1996). In these cases, we\nexpect judges to exhibit judicial discretion (Dolbeare 1969) and enact new legal policy. Published\ndecisions are also important because practitioners suggest the Federal Supplement is the \xe2\x80\x9cmeans\nTo Publish or Not Publish | 629\n\n\x0cby which the opinions of the district courts are made available to the legal profession\xe2\x80\x9d (Vestal 1966,\n74). Thus it seems reasonable that publication in the Federal Supplement is a good indicator of the\npolicy business of the federal district courts for both researchers and practitioners.\nHowever, other scholarship argues that without examining unpublished decisions of the federal\ndistrict courts, researchers cannot be sure that published decisions are representative of the\nentire business of the federal district courts. Songer (1998) questions the sole use of published\ndecisions in judicial behavior research, finding that \xe2\x80\x9cthere are a substantial number of unpublished\ndistrict court decisions which cannot be assumed to be trivial\xe2\x80\x9d (Songer 1988, 213). Despite this\ncriticism, Rowland and Carp (1996) contend that published cases constitute a random sample\nof all district court decisions and are of significant precedential and policy-making value. It is\nimportant that researchers understand the factors that lead to publication in order for them to\nconclude that judicial behavior research based solely on published decisions is representative\nof the entire decision-making patterns of the federal courts. Again, only one or two out of ten\nfederal district courts decisions are published (Swenson 2004). If unpublished decisions differ\nsubstantially from published decisions, this could indicate that judicial behavior research based\nonly on published decisions might be skewed and not offer an accurate or complete picture of\njudicial behavior. Judicial scholarship research does not often include unpublished decisions; these\ndecisions are harder to obtain and more numerous, thus more difficult to process. To the extent\nthat these unpublished decisions establish new precedents or solve politically salient issues of law,\ntheir omission from judicial behavior research may result in incomplete results and reduce our\nunderstanding or create misunderstandings of the policy-making function of the federal district\ncourts.\nUncovering the factors leading to publication may shed more light on the question of whether\npublished opinions are indeed those that are likely to be of a policy-making nature. Several studies\nutilizing various approaches have attempted to uncover the overall publication patterns of federal\ndistrict court judges\xe2\x80\x99 opinions. In a study of opinion writing by federal district judges, Stidham and\nCarp (1999) find that publication rate per judge varies widely. Using data consisting of all published\ndecisions from the Federal Supplement from 1933 to 1995, they found that of 1,589 judges, 25 had\nauthored more than two hundred opinions over an average career spanning 23.5 years. They also\nfound these judges tended to write more during the middle third of their careers, concluding that\nperhaps judges embark on a period of socialization during the first third of their careers, with\ngreater propensity to publish written opinions as they gain more experience (Stidham and Carp\n1999).\nOther research suggests judge characteristics and workload affect publication. Taha (2001),\nanalyzing a smaller sample of 188 decisions (55 published and 133 unpublished), finds that older\njudges, judges with political backgrounds, and those with higher ABA ratings are more likely to\npublish their decisions (Taha 2001). Taha (2001) also finds that higher caseloads result in lower\n630 | To Publish or Not Publish\n\n\x0cpublication rates but does not find evidence of judges publishing as a means of advertising for\nelevation to a higher-level appellate court. Similarly, a study of appellate court judges\xe2\x80\x99 publication\npatterns finds they are not particularly strategic in their decision to publish (Law 2006).\nSwenson (2004) finds that federal district court judges are more likely to publish when the\ncase meets the criteria of the Official Publication Guidelines of the US Judicial Conference.\nAdditionally, her research suggests that opinions are more likely to be published if powerful,\nwell-placed litigants and their attorneys are parties to the suit. Swenson\xe2\x80\x99s findings suggest that\nthese powerful, \xe2\x80\x9crepeat player\xe2\x80\x9d litigants (Galanter 1974), who have more resources and are better\nequipped to litigate based on their frequent use of the legal system, may implement a longterm strategy of \xe2\x80\x9cplaying for the rules\xe2\x80\x9d as opposed to winning their cases outright as a shortterm strategy (Swenson 2004). These litigants, she concludes, \xe2\x80\x9cwould wisely treat publication of\nfavorable precedent as part of their strategy\xe2\x80\x9d (2004, 126). These repeat player litigants are also\nmore likely to be involved in more salient cases, thus increasing the likelihood that decisions in\ntheir cases would be among those that are published.\nSwenson also finds that federal district judges are more likely to publish if their judicial circuit\nemphasizes a culture of publication over nonpublication (Swenson 2004). In some circuits,\npublication norms may be stronger than in other circuits (Swenson 2004). In fact, studies show\nthat publication rates vary from one circuit to another, ranging from 10 percent by district courts\nin some circuits to closer to 50 percent in others (Mckenna, Hooper, and Clark 2000). A regional\nculture exists in the circuits that carries over to the federal district courts. Rowland and Carp\n(1996) note that district courts in different circuits \xe2\x80\x9cfollow important sectional lines that mark off\nhistorical, social, and political differences that give them a distinctly regional character\xe2\x80\x9d (1996,\n96). Thus circuit publication norms may influence the frequency with which federal district court\njudges publish their opinions.\nBeyond socialization and experience, other factors potentially influence federal district court\njudges\xe2\x80\x99 publication decisions. Baum (1997) suggests that lower court judges concentrate on\nmultiple goals simultaneously, unlike US Supreme Court justices who retain more discretion\nenabling them to focus solely on their policy-making goals. Such goals include career ambition for\nhigher office, limiting their immense workloads, and addressing several audiences at once, such\nas the community in which they live and the legal profession. Thus it is plausible that a variety\nof factors could influence all facets of a federal district judge\xe2\x80\x99s career activities, including which\ndecisions they submit for publication in the Federal Supplement.\nFederal district judges\xe2\x80\x99 goals might also include maintaining professional reputations by following\nthe official publication criteria. Baum (1997) suggests judges\xe2\x80\x99 goals may extend beyond furthering\ntheir legal policy goals and include operative goals, such as maintaining personal standing with\ncourt audiences and good relations with other judges. Irrespective of policy goals, whether judges\npursue such operative goals, such as following official publication criteria to maintain personal\nTo Publish or Not Publish | 631\n\n\x0cstanding with their colleagues and others, remains an \xe2\x80\x9copen question\xe2\x80\x9d theoretically and\nempirically (1997, 55). Baum further explains, \xe2\x80\x9cMuch of what judges do to enhance their standing\nwith people who are important to them can be considered semiconscious. Judges may do various\nthings to win the favor of legal scholars, for instance, without fully recognizing that this is\nwhat they are trying to accomplish\xe2\x80\x9d (1997, 12). Publishing decisions, either because it comports\nwith norms or follows publication criteria, might then be a goal of federal district court judges.\nPromotion concerns might also be a motivation for maintaining professional reputations through\nconsistently following circuit norms of publication and official criteria because it \xe2\x80\x9cis directly in the\nhands of federal officials\xe2\x80\x9d (Swenson 2004, 126).\nFederal district court judges have a higher probability of promotion than do federal appeals court\njudges (Baum 1997) and nonpublication of controversial decisions (Carp et al. 2020) renders such\nopinions \xe2\x80\x9cessentially invisible\xe2\x80\x9d (Swenson 2004, 125). Though Swenson (2004) finds no empirical\nsupport for publication as promotion behavior, she notes that even if district judges have no\nambitions of promotion, they still want to have an \xe2\x80\x9cagreeable working environment\xe2\x80\x9d with other\nfederal officials, including the \xe2\x80\x9cU.S. Attorney\xe2\x80\x99s Offices they interact with daily\xe2\x80\x9d (2004, 126). This\nprofessional reputation concern is more immediate and thus might increase the likelihood a judge\nwill choose to publish.\nBased on this body of prior research, we suggest that multiple factors may play a role in the\ndecision to publish opinions.\n\nHypotheses\n1\n\nBecause the federal district courts have an enormous workload, we expect that prior professional\nspecialization may play a role in the decision to publish an opinion both as a means of decreasing\nworkload and to further career fulfillment and enjoyment. For instance, Brenner and Spaeth (1986)\nfind evidence of issue specialization in opinion assignment in the US Supreme Court during the\nBurger Court. Maltzman and Wahlbeck (1996) find issue specialization on the Rehnquist Court,\nas well. Similarly, Cheng (2008) finds evidence of issue specialization and opinion writing in\nthe federal courts of appeals. Thus research suggests that judges with previous experience in\nspecialized areas of law are more likely to publish decisions within those issue areas. Previous\nexperience in a specialized area of law presumes that judges have a deeper level of experience\nand knowledge of the topic, requiring less research and time in producing a publishable opinion.\n\n1. Recent data indicates the workload of the federal district courts well exceeds three hundred\nthousand cases filed annually (Carp et al. 2020).\n632 | To Publish or Not Publish\n\n\x0cCases in areas outside the judge\xe2\x80\x99s previous career experience would require greater preparation.\nFurthermore, judges with experience in specific areas of law likely gravitate toward those issues\nand may gain more personal or career fulfillment in producing opinions on those case topics.\n\nH1: We expect that judges who specialize in certain areas of law will be more likely to publish their opinion\nin those cases than nonspecialists would be.\n\nSimilarly, judges with prior judicial experience at other court levels also may require less research\nand preparation in writing formal opinions for publication in the Federal Supplement. In our data,\n21 percent of the judges who published one hundred or more opinions were former state judges.\nWe expect that previous experience as a judge, particularly in the state courts, will positively relate\nto opinion publication. Only a small percentage of the judges in our sample were federal judges,\nsuch as magistrate or bankruptcy judges, who do not routinely publish opinions.\n\nH2: We expect judges with prior judicial experience to be more likely to publish a decision than judges from\nnonjudicial backgrounds.\n\nOur expectation is informed by Carp et al. (2020) who note that increasingly district court judges\ncome from experienced backgrounds, having served as local or state judges. They note that a fairly\nlarge plurality of recent federal district court judges had previously served as judges elsewhere.\nOver 40 percent had served as former judges, under George H. W. Bush through Obama, an\nincrease from earlier eras. Service as a judge previously, especially on a state court where opinions\nare published and released, may provide federal district court judges with confidence in publishing\nopinions because they have fewer start-up costs in becoming familiar with the job, especially as a\nnew federal district court judge.\nStrategic considerations by federal district court judges might also play a role in publication.\nRandazzo (2008) finds that US district judges condition their decisions on the expectation that\nthe US Courts of Appeal may reverse their decision. Few decisions, roughly about 25 percent,\nare reversed by the circuit courts (Songer and Sheehan 1992). This suggests that when the US\nCourts of Appeal reverse the federal district courts, they do so because the trial court decision was\nan extreme divergence from the law. This principal-agent theory of judicial constraint suggests\nthat lower courts are constrained by the American common law doctrine of stare decisis and\nTo Publish or Not Publish | 633\n\n\x0c2\n\ntypically fear reversal. Songer and Sheehan (1990) find that true noncompliance by lower courts\nwith precedents set by appellate courts above is unusual. While outright defiance is unusual (Carp\net al. 2020), other less apparent mechanisms might be used by lower court judges as strategies\nto appear that they are complying with a decision even if they are not fully doing so. These\n3\n\ntechniques might include narrowing the application of the precedent or describing it as dicta. A\ntechnique that has not been examined as fully is the decision to publish the opinion.\nAs Randazzo (2008) explains, the US Courts of Appeals exert more influence in monitoring the\nwork of the US District Courts than the US Supreme Court because they directly oversee the\nwork of the federal district courts. Since all decisions appealed from the federal district courts\nmust be heard by the US Courts of Appeals, unlike the Supreme Court, which has discretionary\n4\n\ncontrol of its docket through certiorari, the courts of appeals exert a stronger constraint on the\nfederal district courts (Randazzo 2008). Federal district judges are also constrained by the court of\n5\n\nappeals above them as they cannot predict which appellate panel will decide each individual case.\n\nTherefore, it is possible that in certain cases where judges anticipate being reversed because the\ndecision diverges from settled law, they may be less likely to publish their opinions in the Federal\nSupplement as a strategy to avoid further scrutiny of their decision. On the other hand, it is also\npossible that judges may anticipate reversal in a decision that falls in a gray area of the law and,\ntherefore, those jurists may be more likely to publish the decision as a means of justifying it to the\nappellate court.\nWe expect a relationship to exist between publishing decisions and eventual reversal of the\ndecision. However, the literature is not clear in offering a direction for the relationship between\nreversal and publication. On the one hand, judges may choose to publish a novel decision in order\n\n2. Stare decisis is the doctrine of following precedent. Judges are bound to follow prior precedents set\nby their own courts\xe2\x80\x99 previous decisions (horizontal stare decisis) and by precedents set by appellate\ncourts above them in the judicial hierarchy (vertical stare decisis). Principal agent theory suggests\nlower courts are the agents of higher courts in the judicial hierarchy and that their primary role is\nnorm enforcement by applying legal precedents to cases before them as handed down by the\nappellate courts above. Principal agent theory as applied to judicial behavior examines the extent to\nwhich lower courts comply with appellate courts above them, especially when their policy\npreferences differ from the decision handed down from the appellate court (Baum 1997).\n3. Dicta refers to language in a case that is not central to its holding.\n4. The US Supreme Court decides less than one percent of all cases appealed to them from state\nsupreme courts and the US Courts of Appeals by selectively granting certiorari to the few cases they\ndeem to be cert-worthy (Carp et al. 2020). Cases are typically granted certiorari when they raise\nsignificant national issues and when conflict in the rule of law exists between the various circuits.\n5. The US Courts of Appeal operate using rotating panels of three judges randomly assigned.\n634 | To Publish or Not Publish\n\n\x0cto justify their opinions because the legal issue is one that is new and needs explanation for higher\ncourts. Alternately, judges may choose not to publish a novel decision in order to avoid notice\nand potential reversal. Scholarship suggests both potential relationships may exist. For instance,\nRandazzo (2008) finds that federal district court judges act strategically when casting votes in civil\nliberties cases, but that they do not do so in criminal cases where there is less policy discretion.\nSimilarly, Boyd (2015) finds that federal district court judges are less likely to publish opinions\nwhen the circuit above is ideologically diverse, presumably because they anticipate a greater\nlikelihood of reversal than from an ideologically congruent circuit. We test for the possibility of\neither relationship as an effect on publication, as it may vary given the variation in policy-making\nopportunities for district court judges across different types of cases.\n\nH3: We expect judges who anticipate reversal will be less likely to publish their decision.\n\nH4: We expect judges who anticipate reversal will be more likely to publish their decision.\n\nFederal district judges decide important cases that matter greatly to the individual litigants\nappearing before them. However, though all cases are important, not all raise significant legal\nquestions that broadly impact the rule of law. The Official Reporting Guidelines provides several\ncriteria indicating case importance. The Federal Supplement includes a case if it is of \xe2\x80\x9cconsiderable\ninterest to the general membership of the bar,\xe2\x80\x9d \xe2\x80\x9cadvances understanding of that area of law, as\nopposed to a more \xe2\x80\x98routine\xe2\x80\x99 opinion dealing with well-settled or established principles of law,\xe2\x80\x9d and\n\xe2\x80\x9cwas reached within two years of the filing date\xe2\x80\x9d (Platt 1996). These criteria leave quite a large area\nof discretion to the individual judge in determining whether a case meets them (Swenson 2004).\nGiven that judges desire to maintain their professional reputations in following the standards of\nthe Official Reporting Guidelines, we expect judges will be more likely to publish an opinion in a\ncase if its criteria meet the guidelines for publication. Swenson (2004) notes that judges will take\nseriously the guidelines governing publication even though they are not mandatory because they\n\xe2\x80\x9care the primary source of law on the matter of what a judge should and should not publish\xe2\x80\x9d and\nare \xe2\x80\x9cthe result of a respected rulemaking process\xe2\x80\x9d (2004, 123). The respect judges have for the\nrulemaking process governing their profession and the respect judges seek from their professional\n\nTo Publish or Not Publish | 635\n\n\x0ccommunity (Baum 1997) may motivate judges to publish decisions that meet the official criteria\ndespite the lack of any enforcement mechanism.\n\nH5: We expect judges will be more likely to publish their decision if it is an important case\xe2\x80\x94that is, if it\nsatisfies the Official Publication Guidelines criteria.\n\nIdeological agreement with the decision might also lead a judge to publish an opinion in a case.\nFederal district court judges decide cases alone, unlike appellate court judges, who typically sit\non three-judge panels. However, it is quite plausible that a district court judge could reach a\ndecision that she does not necessarily agree with; rather, the governing precedent and legal rules\nrequire her to reach that outcome. In these instances, judicial politics scholars would classify\nsuch judicial behavior as following a legal rather than an attitudinal model. The legal model of\njudicial behavior (Baum 1997) argues that judges follow the dictates of stare decisis because their\ntraining and professional socialization emphasize the importance of applying precedent. Stare\ndecisis ensures the law maintains predictability and stability. Therefore, if judges behave as the\nlegal model predicts, they will follow precedent regardless of their personal feelings about the\noutcome of the case.\nOn the other hand, the attitudinal model of judicial behavior (Segal and Spaeth 1993, 2002)\nargues that judges reach decisions consistent with their ideological views, commonly classified as\neither liberal or conservative. The attitudinal model presumes that judges have sincere ideological\npreferences in cases and that they pursue their policy preferences through the decisions they\nreach. We hypothesize that these models of behavior may impact the decision reached in a case,\nand they may also influence the decision to publish the ruling. That is, the decision to publish may\nbe tied to or affected by an individual judge\xe2\x80\x99s views on the outcome of the case. These two models\xe2\x80\x99\npredictions about judicial behavior lead to two competing hypotheses in the context of federal\ndistrict court publication. We expect judges will publish cases regardless of whether the decision\nis consistent with his or her personal political views under a legal model interpretation of behavior.\nHowever, we also expect that judges will be more likely to publish rulings that are consistent with\ntheir political ideology under the attitudinal model of judicial behavior. Following Randazzo (2008)\nand Boyd (2015), we test both competing hypotheses to determine if ideological congruence has\neither a positive or negative relationship to the decision to publish and whether that relationship\ndiffers across case categories.\n\n636 | To Publish or Not Publish\n\n\x0cH6: We expect judges will publish their decision irrespective of its congruence with the judge\xe2\x80\x99s political\nideology.\n\nH7: We expect judges will publish their decision if it is congruent with the judge\xe2\x80\x99s political ideology.\n\nData and Methods\nThe data were derived in a two-part process from the US District Court database (Carp and\nManning 2016) and from the US Courts of Appeals database (Songer 1998). The US District Court\ndatabase contains coded decisions published in the Federal Supplement from 1927 to 2005. We first\nselect judges from that database who had published at least one hundred opinions. We choose\none hundred opinions as our cutoff point for several reasons. First, we reason that patterns of\npublication rates will be most prominent in judges whose careers span a relatively longer time.\nStidham and Carp (1999) find that district court judges tend to publish most often in the middle\nstages of their careers. Judges serving only a few years likely encounter socialization effects that\nmight flatten out over a longer period. Second, we reason that in order to have a sufficient sample\nof judges with both published and unpublished appealed opinions, the cutoff point should be\nrather large. Our one-hundred-case cutoff point also provides us with a sufficient number of\njudges from each professional experience category.\nWe then identify those judges\xe2\x80\x99 opinions in the US Courts of Appeals database, which contains\nboth published and unpublished opinions appealed to and decided by the nation\xe2\x80\x99s appellate courts.\nPrior studies justify our decision to utilize appealed decisions as our primary data source. Swenson\n(2004) finds no substantial differences in appealed decisions versus decisions not appealed. Her\ndata source for analyzing published versus unpublished opinions includes only appealed decisions.\nWe can also be reasonably certain that published and unpublished opinions are not so different\nthat they cannot be utilized for comparison. Songer (1988) and Olson (1993) find no substantial\ndifferences of importance between published and unpublished opinions appealed to the US Courts\nof Appeals. Others find that many unpublished opinions still have precedential value (Reynolds\nTo Publish or Not Publish | 637\n\n\x0cand Richman 1981; Robel 1989; and Mueller 1977), which explains why the Advisory Committee\non Appellate Rules of the Judicial Conference of the United States voted to allow lawyers to\ncite unpublished opinions in federal appeals courts beginning in 2007 (Mauro 2006). Though\nsystematic differences between published and nonpublished decisions after 2007 are beyond\nthe scope of this study, future research might explore whether differences exist. The vote to\nmodify existing rules and allow unpublished opinions to be cited by lawyers, at minimum, suggests\nan acknowledgment that unpublished opinions are important and raise salient points of law.\nThese unpublished opinions are not binding precedent but may be cited as persuasive authority\n(Magnuson and Frank 2015).\nPrevious findings thus suggest that appealed published and unpublished opinions are comparable\nfor our research purposes. Given the preceding studies, we can be reasonably certain that utilizing\nthe US Courts of Appeals database to compare unpublished and published decisions of federal\ndistrict court judges is a valid and reliable data source of determinants of publication. The twopart data identification process yielded 149 federal district court judges and 3,926 total cases\nappealed to the US Courts of Appeals.\nThe dependent variable is a dichotomous variable, Published, coded as \xe2\x80\x9c1\xe2\x80\x9d if the decision was\npublished by the federal district judge and as \xe2\x80\x9c0\xe2\x80\x9d if the decision was unpublished.\nFor the Specialist variable, we rely on the Federal Judicial Center\xe2\x80\x99s federal judge database to obtain\nbackground information for each judge in our data. We then categorize judges as specialists for\neach area of law we model separately, coded dichotomously with \xe2\x80\x9c0\xe2\x80\x9d indicating nonspecialist and\n\xe2\x80\x9c1\xe2\x80\x9d indicating the judge has prior career specialization in each specific area of law. Many of the\njudges are specialists in more than one area. The career specialist variables we include are for\ncriminal law, civil liberties, and economic case specialties. Using the same data source, we also\nseparately code background career information for each judge indicating whether they previously\nworked as a Politician, State Judge, US Magistrate, Law Professor, or Private Practice attorney.\nEach of these variables is coded dichotomously with \xe2\x80\x9c1\xe2\x80\x9d indicating the judge previously served in\nthe role, \xe2\x80\x9c0\xe2\x80\x9d indicating they did not.\nThe second category of independent variables includes specific case characteristics. The first\n6\n\ncase variable we characterize as case importance. This variable is coded \xe2\x80\x9c1\xe2\x80\x9d if the decision was\n\n6. For our purposes, we rely on the US Courts of Appeals database classification of case importance\n(Swenson 2004) since the federal district court database includes only published opinions and the\nappeals court database includes both published and unpublished. While relying solely on the\nappellate court\xe2\x80\x99s determination of case importance could potentially exclude some cases deemed\n\xe2\x80\x9cimportant\xe2\x80\x9d by the federal trial court, it is the only consistent measure of case importance available\nacross both published and unpublished decisions (Swenson 2004).\n638 | To Publish or Not Publish\n\n\x0cImportant, \xe2\x80\x9c0\xe2\x80\x9d if not. The case importance variable indicates whether the decision by the federal\ndistrict court meets the criteria of the Official Publication Guidelines. We rely on data from the US\nCourts of Appeals database to determine if the case raised an important issue of constitutional law\nor federal law. These we deem as important issues.\nThe second case-specific variable is Reversal. We code this variable as \xe2\x80\x9c1\xe2\x80\x9d if the appeals court\nreversed the district court\xe2\x80\x99s decision and \xe2\x80\x9c0\xe2\x80\x9d if it affirmed it.\nThe final case-specific variable is Ideological Congruence with the decision. If the federal district\njudge\xe2\x80\x99s ideology is congruent with the decision they made, we coded it as \xe2\x80\x9c1\xe2\x80\x9d; otherwise it\nwas coded as \xe2\x80\x9c0.\xe2\x80\x9d Cases are classified as liberal or conservative in their outcomes and judge\n7\n\nideology is classified as Democrat or Republican-appointed. In our models, this variable is coded\ndichotomously with Democrats coded as \xe2\x80\x9c1,\xe2\x80\x9d Republicans coded as \xe2\x80\x9c0.\xe2\x80\x9d\nBesides political party affiliation, our models also control for personal attributes, including sex and\nrace of the judge, to determine whether differences in publication within various case categories\nexist between judges from various backgrounds. In the federal district courts, some research\nshows that women and minorities may behave differently from their colleagues when managing\ntheir caseloads or communicating with litigants (Boyd 2013). Other research shows freshmen\neffects and self-silencing behavior may occur more frequently among women and minorities\n(Karpowitz, Mendelberg and Shaker 2012; Childs and Krook 2006; Allen and Wall 1993). We include\nthese controls to examine whether opinion-writing patterns also reveal self-silencing or freshmen\neffects behavior.\nFemales are coded as 1, and males are coded as 0. Minority judges are coded as 1, and Caucasians\nare coded as 0.\nThe cases are divided into three general case categories, relying on the coding of the US Courts\nof Appeals database: criminal, civil liberties, and economic cases. Since our dependent\n8\n\nvariable\xe2\x80\x94publication\xe2\x80\x94is dichotomous, we use logistic regression to estimate each model.\n\n7. We utilize political party of the appointing president as our measure of judge ideology because it is a\nconsistent measure across our time period, unlike other measures of judge ideology for federal\njudges.\n8. Initially, we specified models with narrower case categories to correspond with the judge\xe2\x80\x99s specific\ncareer specialization, but these did not yield sufficient observations suitable for analysis. We also\nspecified models that controlled for the federal circuit where the federal district court resides. In all\nalternate models tested, the general trend was that judge attributes varied in their significance\nlevels and were not consistent across models. However, consistently across various model\nspecifications, the importance variable remained statistically significant and positive. Unfortunately,\nTo Publish or Not Publish | 639\n\n\x0cResults\nFirst, we present summary charts of the distribution of published and unpublished decisions in\nour data by issue area. Figure 1 shows only 23 percent of criminal cases in our data are published,\ncompared with roughly 40 percent of civil liberties and economic cases. Overall, about 35 percent\nof cases in our data are published opinions. Figure 2 shows the background characteristics of\nthe judges in our data. Over half were appointed by Democrats and only a small percentage, less\nthan 5 percent, are women or minorities. The career backgrounds are about evenly distributed\nbetween private practice attorneys, former state judges, and politicians, with just over 20 percent\nfor each. Fewer former law professors and US magistrates appear in our data. Our data do not,\nunfortunately, subcategorize former state judges by the level of court they served on previously.\n\nFigure 1: Published opinions by issue area, Federal District Court judges with 100+ published opinions\n\nalternate specifications with circuit controls could not be successfully estimated across all case\ncategories due to insufficient variation in judge characteristics across the various circuits.\n640 | To Publish or Not Publish\n\n\x0cFigure 2: Judge attributes, Federal District Court judges with 100+ published opinions\n\nThe results of the logistic regression analyses are shown in Appendix A. The overall model and all\nthree case-category models are statistically significant at the 0.000 level. Across all four models\nthe variable, Important, is positively signed and statistically significant, providing support for H5.\nWe are thus confident that case importance increases the likelihood a decision will be published,\nirrespective of the legal issue raised. Figure 3 shows the predicted probability of case importance\non the likelihood of publication. For cases overall, the predicted probability of a published decision\nwhen a case is deemed \xe2\x80\x9cimportant\xe2\x80\x9d is 0.42. In comparison, cases not classified as important have a\n0.32 predicted probability of publication. The predicted probability of case importance increases\nto 0.46 when it presents a civil liberties issue and 0.52 when the case involves an economic issue.\n\nTo Publish or Not Publish | 641\n\n\x0cFigure 3: Predicted probability of case importance on the decision to publish in the Federal Supplement\n\nAnticipation of eventual reversal by the US Courts of Appeals also appears to impact publication.\n\n9\n\nOverall and in criminal cases, eventual reversal predicts publication, providing support for H4.\nHowever, in civil liberties cases, eventual reversal has a negative impact on publication, consistent\nwith H3. That is, civil liberties cases that are eventually reversed are less likely to be published.\nThe predicted probabilities for reversal are shown in figure 4. Overall, the predicted probability\nof publication in cases that are eventually reversed is 0.39. In criminal cases, district court\njudges have less policy discretion because cases often turn on factual evidence in a criminal trial\n(Randazzo 2008). However, in civil liberties cases, Randazzo (2008) finds district court judges have\ngreater levels of policy discretion. In areas with greater policy discretion, it appears district court\njudges may anticipate reversal and thus suppress their decisions via nonpublication. However, in\ncriminal cases where there is less policy discretion for district court judges, they do not anticipate\nreversal, and in fact, it appears they may seek appellate court input in applying legal standards to\nfactual evidence.\n\n9. While reversal is not a perfect measure of anticipated reversal, it is the most consistent across our\ndata for both published and unpublished decisions and is most often used by previous research to\nmeasure anticipated reversal (Bowie, Songer, and Szmer 2014; Randazzo 2008).\n642 | To Publish or Not Publish\n\n\x0cFigure 4: Predicted probability of eventual reversal by the Court of Appeals on the decision to publish in the\nFederal Supplement\n\nFinally, of the case-specific factors, ideological congruence has a statistically significant impact on\npublication overall and in criminal and economic cases. Appendix A shows a positive relationship\nbetween publication and the ideological disposition of the judge in criminal cases, consistent with\nan attitudinal model of behavior and H7. However, in economic cases, ideological congruence\ndecreases the likelihood of publication, consistent with a legal model of judicial behavior and H6.\nThese results are illustrated as predicted probabilities in figure 5. The predicted probability of a\njudge publishing a decision that corresponds to his or her political ideology is 0.41. That is, the data\nindicate that in economic cases jurists are more likely to publish their decision if it is consistent\nwith their own ideological viewpoint. Again, these differences are likely due to differences in the\namount of policy-making discretion district court judges have in different areas of law (Randazzo\n2008).\n\nTo Publish or Not Publish | 643\n\n\x0cFigure 5: Predicted probability of ideological congruence with the Circuit on the decision to publish in the\nFederal Supplement\n\nThe judicial background variables reach statistical significance in some of the models but are\nnot consistently impactful across various case categories, suggesting partial support for H2. For\ninstance, Appendix A shows that the minority judges in our data are less likely to publish overall,\nand particularly in economic cases that could be due to a possible self-silencing effect. Former\nstate judges are less likely to publish their rulings in criminal cases but are more likely to publish if\nthe case raises an economic issue. In fact, in economic cases, judicial backgrounds have the largest\nimpact on the likelihood of publication. The predicted probabilities for publication in economic\ncases are shown in figure 6. In economic cases, former federal magistrates publish more often\nthan others, while former law professors publish less often. Also, only in economic cases does the\nSpecialist variable reach statistical significance. If a judge formerly worked in the area of economic\nlaw, he or she is more likely to publish decisions that are economic in nature, providing partial\nsupport for H1.\n\n644 | To Publish or Not Publish\n\n\x0cFigure 6: Predicted probability of judges\xe2\x80\x99 backgrounds on decision to publish in the Federal Supplement in\neconomic cases\n\nDiscussion and Conclusion\nWe can surmise several important findings from the analyses. First, case importance consistently\naffects whether a case is published. The consistency of case importance in the decision to publish\nsuggests that federal district judges act as professionals in their compliance with the Official\nPublication Guidelines. This indicates that the professional standards of publication are generally\nadhered to by federal district court judges, even though the language of the guidelines could be\ninterpreted broadly and with a great deal of discretion.\nSecond, the findings suggest federal district judges only in certain circumstances act strategically\nto avoid reversal. They are more likely to publish decisions that eventually are reversed by the\nUS Courts of Appeals overall and in criminal cases, suggesting lack of strategic action. It may be\nthat judges publish opinions that are eventually reversed because the case raises a legal issue that\nrequires resolution by an appellate court, or the case introduces a new issue in a newly developed\narea of law. Judges might also be motivated to publish opinions, even if they are eventually\nreversed, because they desire to provide more support and justification for their ruling to the\nappellate court or because the case turns on a factual determination where reversal cannot be\nanticipated.\n\nTo Publish or Not Publish | 645\n\n\x0cHowever, in civil liberties cases, judges were actually less likely to publish if the decision was\neventually reversed. Civil liberties cases\xe2\x80\x94which include matters like freedom of speech,\nreproductive rights, and religious liberty\xe2\x80\x94raise issues that in some respects are more salient\nto the public and potentially controversial. Thus it is possible that federal district judges act\nstrategically in civil liberties cases by failing to publish opinions where they anticipate reversal.\nRandazzo (2008) argues that if the \xe2\x80\x9cfederal trial judges anticipate a negative response on appeal,\nthen they curtail their ideological influences,\xe2\x80\x9d and he finds that \xe2\x80\x9cthis pattern remains consistent\nwhen one examines civil liberties and economic cases, but not for criminal cases\xe2\x80\xa6where judges\ndo not possess the discretion to act according to their ideological preferences, and consequently,\ndo not anticipate how their decisions will be treated by the appeals courts\xe2\x80\x9d (686).\nConsistent with previous research, we find that federal district court judges largely follow the\nOfficial Publication Guidelines when deciding which cases to publish. However, we also find\nsome key distinctions across different case types, with strategic anticipation of reversal playing\na role in publication along with policy-making discretion. Where federal district judges are less\nconstrained\xe2\x80\x94that is, in civil liberties cases\xe2\x80\x94they publish less when anticipating reversal. However,\nin criminal cases where there is less policy discretion, judges cannot as easily anticipate eventual\nreversal. This finding on reversal and publication is largely consistent with Bowie, Songer, and\nSzmer (2014) who find that judges on the US Courts of Appeals do not worry too much about\nreversal because they do not have a good sense of which decisions will be granted cert by the\nUS Supreme Court. However, a much higher likelihood of review and probability of reversal exists\nfor district court judges. Thus as Randazzo (2008) finds, they do act strategically to an extent.\nFurther, Bowie, Songer, and Szmer (2014) in interviews with federal appeals court judges find that\nthey behave in ways to maintain their professional reputations. Our findings suggest these same\nconcerns exist for federal district court judges, as well.\nJudges appear to publish decisions that correspond to their ideological views overall and in\ncriminal cases. However, in economic cases, ideological congruence is less likely to lead to\npublication. This might suggest that some areas of law raise issues that are more significant to a\njudge\xe2\x80\x99s personal view, while these same judges are perhaps less passionate about cases that touch\nupon economic matters. In fact, the results show that economic cases\xe2\x80\x99 publication is impacted\ndifferently than criminal and civil liberties cases. Judges\xe2\x80\x99 backgrounds and expertise explain\nmore frequent publication in economic cases. This is not surprising given the technical nature\nand expertise required in many complicated economic cases. However, while career background\nand expertise matter more in economic cases, these factors largely do not explain publication\ndecisions in other areas of law. Consistent with Boyd (2015), personal characteristics have less\nimpact on publication overall than do case-specific factors such as case importance, anticipation\nof reversal, and ideological congruence.\nIt is worth noting that there are a few caveats to keep in mind in the interpretation of the\n646 | To Publish or Not Publish\n\n\x0cresults. We limit our analysis to include only judges who serve long enough to have decided 100\ncases or more, which reduces the number of women and minorities in our data. We also include\nonly cases that had been appealed to the US Courts of Appeals. And because of the nature of\nour models, we were unable to control for circuit effects because of lack of variation in judge\ncharacteristics across each circuit. Other research on publication in the federal district courts\n(Boyd 2015; Swenson 2004) examine circuit effects and do not limit the analysis to judges deciding\nat least one hundred cases. However, these studies are limited by examining only a few circuits\n(Swenson 2004) or select case categories (Boyd 2015), while our study focuses on a longer period\nand across all circuits and case categories.\nThese limitations aside, one interesting indication of this line of research is that case importance,\nwhere analyzed, positively affects publication. Together, the body of research suggests that federal\ndistrict court judges generally adhere to the Official Publication Guidelines when publishing cases\nand they do so consistently. In this aspect of the decision-making process, federal district court\njudges can be viewed as unbiased professionals who largely follow the norms and expectations of\nthe legal community even when they seemingly have a large amount of discretion. Our findings\nalso suggest that judges tend to publish decisions that correspond to their own ideological views.\nIn this way, our research indicates that judicial ideology is an important factor influencing judges\xe2\x80\x99\ndecisions to publish their rulings.\n\nTo Publish or Not Publish | 647\n\n\x0cAppendix A: Logistic Regression Model, Likelihood of\nPublication in the Federal Supplement\n\n648 | To Publish or Not Publish\n\n\x0cDemocrat\n\nFemale\n\nMinority\n\nPolitician\n\nState judge\n\nFederal judge\n\nPrivate practice\n\nLaw professor\n\nSpecialized in issue area\n\nImportant issue\n\nReversed by appeals court\n\nIdeological congruence with decision\n\nConstant\n\nOverall model Criminal\nMLE (SE)\nMLE (SE)\n\nCivil liberties Economic\nMLE (SE)\nMLE (SE)\n\n0.038\n\n0.159\n\n0.228\n\n0.038\n\n(0.081)\n\n(0.149)\n\n(0.218)\n\n(0.131)\n\n-0.050\n\n-0.240\n\n0.354\n\n-0.238\n\n(0.246)\n\n(0.465)\n\n(0.725)\n\n(0.381)\n\n-0.325*\n\n-0.320\n\n-0.343\n\n-0.533*\n\n(0.162)\n\n(0.345)\n\n(0.394)\n\n(0.259)\n\n-0.012\n\n-0.332\n\n0.310\n\n-0.191\n\n(0.098)\n\n(0.222)\n\n(0.248)\n\n(0.174)\n\n-0.140\n\n-0.454*\n\n-0.206\n\n0.336*\n\n(0.111)\n\n(0.229)\n\n(0.246)\n\n(0.177)\n\n0.091\n\n-0.177\n\n-0.475\n\n1.078**\n\n(0.141)\n\n(0.350)\n\n(0.497)\n\n(0.302)\n\n0.023\n\n0.004\n\n0.205\n\n0.206\n\n(0.093)\n\n(0.208)\n\n(0.261)\n\n(0.161)\n\n0.005\n\n0.228\n\n0.232\n\n-0.501**\n\n(0.115)\n\n(0.234)\n\n(0.273)\n\n(0.195)\n\n-0.229\n\n0.340\n\n0.800**\n\n(0.194)\n\n(0.708)\n\n(0.229)\n\n0.470**\n\n0.369**\n\n0.505**\n\n0.524**\n\n(0.628)\n\n(0.129)\n\n(0.196)\n\n(0.116)\n\n0.180*\n\n0.571**\n\n-0.439*\n\n0.051\n\n(0.089)\n\n(0.191)\n\n(0.229)\n\n(0.143)\n\n0.272**\n\n0.767*\n\n0.124\n\n-0.466**\n\n(0.105)\n\n(0.313)\n\n(0.308)\n\n0.145\n\n-0.845**\n\n-0.229\n\n-0.732**\n\n-0.386**\n\n(0.086)\n\n(0.194)\n\n(0.211)\n\n(0.139)\n\nN=3720\n\nN=1398\n\nN=526\n\nN=1322\n\n----\n\n2\n\nChi = 68.48***\n2\n\nCount R = 64.9\n\n2\n\nChi = 45.69***\n2\n\nCount R = 77.4\n\n2\n\nChi = 22.32**\n2\n\nCount R = 62.7\n\n2\n\nChi = 89.82**\n2\n\nCount R = 60.7\n\nTo Publish or Not Publish | 649\n\n\x0cAppendix A: Logistic Regression Model, Likelihood of Publication in the Federal Supplement\n*Significant at .05 level, **significant at .01 level, two-tailed tests.\n\nReferences\nAllen, David W., and Diane E. 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New York: Wiley.\n650 | To Publish or Not Publish\n\n\x0cKarpowitz, C., T. Mendelberg, and L. Shaker. 2012. \xe2\x80\x9cGender Inequality in Deliberative Participation.\xe2\x80\x9d\nAmerican Political Science Review 106 (3): 533\xe2\x80\x9347.\nLaw, David S. 2006. \xe2\x80\x9cVoting and Publication Patterns in Ninth Circuit Asylum Cases.\xe2\x80\x9d Judicature\n89:212\xe2\x80\x9319.\nMaltzman, Forrest, and Paul J. Wahlbeck. 1996. \xe2\x80\x9cMay It Please the Chief? Opinion Assignments in\nthe Rehnquist Court.\xe2\x80\x9d American Journal of Political Science 40 (2): 421\xe2\x80\x9343.\nMagnuson, Eric J., and Nicole S. Frank. 2015. \xe2\x80\x9cBriefly: Because Someone Said So, That\xe2\x80\x99s Why.\xe2\x80\x9d\nMinnesota Lawyer, July 16, 2015. https://minnlawyer.com/2015/07/16/briefly-becausesomeone-said-so-thats-why/.\nMauro,\n\nTony.\n\n2006.\n\n\xe2\x80\x9cCourt\n\nEndorses\n\nUse\n\nof\n\nUnpublished\n\nOpinions.\xe2\x80\x9d\n\nLegal\n\nTimes.\n\nhttp://www.nonpublication.com/mauro4.12.htm.\nMckenna, J. A., L. L. Hooper, and M. Clarke. 2000. Case Management Procedures in the Federal\nCourts of Appeals. Washington, DC: Federal Judicial Center.\nMueller, J. E. 1977. \xe2\x80\x9cUnpublished Opinion Study.\xe2\x80\x9d State Court Journal 1:23.\nOlson, S. M. 1993. \xe2\x80\x9cStudying Federal District Courts through Published Cases: A Research Note.\xe2\x80\x9d\nJustice System Journal 15:782\xe2\x80\x93800.\nPlatt, Ellen. 1996. \xe2\x80\x9cUnpublished vs. Unreported: What\xe2\x80\x99s the Difference?\xe2\x80\x9d In Perspectives: Teaching\nLegal Research and Writing, 26\xe2\x80\x9327. St. Paul, MN: West.\nRandazzo, Kirk. 2008. \xe2\x80\x9cStrategic Anticipation and the Hierarchy of Justice in the U.S. District\nCourts.\xe2\x80\x9d American Politics Research 36 (5): 669\xe2\x80\x9393.\nReynolds, W., and W. Richman. 1981. \xe2\x80\x9cAn Evaluation of Limited Publication in the U.S. Courts of\nAppeals: The Price of Reform.\xe2\x80\x9d University of Chicago Law Review 48:573.\nRobel, L. K. 1989. \xe2\x80\x9cThe Myth of the Disposable Opinion: Unpublished Opinions and Government\nLitigants in the U.S. Courts of Appeals.\xe2\x80\x9d Michigan Law Review 87:940.\nRowland, C. K., and Robert A. Carp. 1996. Politics and Judgment in the Federal District Courts.\nLawrence: University Press of Kansas.\nSegal, Jeffrey, and Harold Spaeth. 1993. The Supreme Court and the Attitudinal Model. Cambridge,\nUK: Cambridge University Press.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2002. The Supreme Court and the Attitudinal Model Revisited. Cambridge, UK: Cambridge\nUniversity Press.\nTo Publish or Not Publish | 651\n\n\x0cSonger, Donald R. 1988. \xe2\x80\x9cNonpublication in the United States District Courts: Official Criteria\nversus Inferences from Appellate Review.\xe2\x80\x9d Journal of Politics 50:206\xe2\x80\x9319.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 1998. \xe2\x80\x9cThe Multi-user Database on the United States Courts of Appeals, 1925\xe2\x80\x931996.\xe2\x80\x9d\nhttp://www.songerproject.org/data.html.\nSonger, Donald R., and Reginald S. Sheehan. 1990. \xe2\x80\x9cSupreme Court Impact on Compliance and\nOutcomes: Miranda and New York Times in the United States Courts of Appeals.\xe2\x80\x9d Western\nPolitical Quarterly 43:297\xe2\x80\x93316.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 1992. \xe2\x80\x9cWho Wins on Appeal? Upperdogs and Underdogs in the United States Courts of\nAppeals.\xe2\x80\x9d American Journal of Political Science 36:235\xe2\x80\x9358.\nStidham, Ronald, and Robert A. Carp. 1999. \xe2\x80\x9cExploring Opinion Writing Practices of Federal District\nJudges.\xe2\x80\x9d Presented at the Annual Meeting of the Southwestern Political Science Association, San\nAntonio, TX, April 1, 1999.\nSwenson, Karen. 2004. \xe2\x80\x9cFederal District Court Judges and the Decision to Publish.\xe2\x80\x9d Justice System\nJournal 25:121\xe2\x80\x9342.\nTaha, Ahmed E. 2001. \xe2\x80\x9cPublish or Paris? Evidence of How Judges Allocate Their Time.\xe2\x80\x9d Unpublished\npaper.\nVestal, Allan D. 1966. \xe2\x80\x9cA Survey of Federal District Court Opinions: West Publishing Company\nReports.\xe2\x80\x9d Southwestern Law Journal 20:63\xe2\x80\x9396.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 1970. \xe2\x80\x9cPublishing District Court Opinions in the 1970\xe2\x80\x99s.\xe2\x80\x9d Loyola Law Review 17:673\xe2\x80\x9391.\n\nActivity: Survey the Data\nFirst, navigate to https://www.umassd.edu/cas/polisci/resources/us-district-court-database/\nto download the US District Court database by Carp & Manning (2016). After downloading the data,\ntabulate the frequencies of judges contained in the database. Each observation represents a single,\npublished case. For Stata users, the command to tabulate frequencies is \xe2\x80\x9ctabulate judge, sort.\xe2\x80\x9d This\ncommand will provide a list of judges sorted by frequencies of their published opinions.\nSecond, navigate to: https://www.fjc.gov/history/judges. Explore the biographical information\nfor a selection of the judges who published one hundred or more opinions from the frequencies list\n652 | To Publish or Not Publish\n\n\x0cabove. Create background profiles for a few of these judges. What background characteristics do\nthey have in common? Based on your preliminary survey of the judges, what additional variables\nwould you include to predict publication in certain types of cases? Are there variables you would\ninclude that are not included in the authors\xe2\x80\x99 model presented in the study?\n\nTo Publish or Not Publish | 653\n\n\x0cPART IV\n\nPUBLIC OPINION\nIn his dissent in Baker v. Carr (369 U.S. 186 [1962]), Supreme Court Justice Felix Frankfurter\nidentified the dependence of the US Supreme Court (or any US court, for that matter) on its\nlegitimacy among the mass public: \xe2\x80\x9cThe Court\xe2\x80\x99s authority\xe2\x80\x94possessed of neither the purse nor\nthe sword\xe2\x80\x94ultimately rests upon sustained public confidence in its moral sanction\xe2\x80\x9d (369 U.S. 186,\n267). To put it simply, without legitimacy, without the public\xe2\x80\x99s acceptance, or at least tolerance,\nfor its decisions, the Court is powerless. While Justice Frankfurter was speaking to the US case,\nhis sentiments, as the studies in this section show, can be applied more broadly. Thus studies\nexamining the forces associated with public confidence in the judiciary are a staple in judicial\npolitics research. This section contains five such examples. First, Professors Fix, Randazzo, and\nMartin widen our lens to the judiciaries of Eastern Europe and examine how public confidence\nin the courts might develop in newly democratized nations. Perhaps not surprisingly, they find\nthat how far along a country has traveled toward democracy as well as strong institutional bases\nfor the judiciary make a considerable difference in public support. However, these effects are not\nindependent of general support for other governmental institutions, revealing that the echoes of\na unitary system are not easily shrugged off. Professor Miles Armaly asks whether the pointed\ncriticism of elected officials can affect the Court\xe2\x80\x99s legitimacy among those politicians\xe2\x80\x99 supporters.\nEmploying an experimental design, he finds this to be the case, a result of some significance\ngiven the current era of hyperpolarization where even the courts have become targets of partisan\narrows. Professor Morgan also examines the Court\xe2\x80\x99s resilience in the face of attack. Using an\nexperimental design, he finds that partisan attacks on the judiciary\xe2\x80\x99s democratic credentials\nmay land glancing blows at best. In short, the Court\xe2\x80\x99s reservoir of legitimacy remains resilient.\nProfessors Kenneth Fernandez and Jason Husser examine the forces that systematically affect\nvariation in public support for state courts. After reviewing the nature of the judicial systems\nacross the fifty states, they focus their analysis on survey data measuring public support for the\nstate courts in North Carolina. They find that levels of support vary with forces such as education,\nage, race, and ideology. Their findings are highly relevant given the large policy-making role the\nstates play in our federal system. Finally, Professors Strother and Johnson take up the question\nof the degree to which the US Supreme Court responds to mass public opinion. Settling a longstanding debate in the discipline, they find little empirical support for the Court bending to the\nwhims of the public\xe2\x80\x99s preferences.\nFix, Michael P., Kirk A. Randazzo, Ana R. Martin. \xe2\x80\x9cThe Impact of Democratic Consolidation on\nPublic Confidence in Courts.\xe2\x80\x9d\nArmaly, Miles. \xe2\x80\x9cInfluence of Politicians on Public Support for the Judiciary\xe2\x80\x9d\n654 | Public Opinion\n\n\x0cMorgan, Kyle J. \xe2\x80\x9cExperimentally Measuring Responsiveness to Criticisms of the US Supreme Court\nas Antidemocratic.\xe2\x80\x9d\nFernandez, Kenneth and Jason Husser. \xe2\x80\x9cPublic Attitudes toward State Courts.\xe2\x80\x9d\nJohnson, Ben, Logan Strother. \xe2\x80\x9cDoes the US Supreme Court Respond to Public Opinion?\xe2\x80\x9d\n\nPublic Opinion | 655\n\n\x0c26. The Impact of Democratic\nConsolidation on Public Confidence in\nCourts\nMICHAEL P. FIX, KIRK A. RANDAZZO, AND ANA R. MARTIN\n\nOver the last several years, scholars of the judiciary have noticed substantial increases in the\npoliticization of the judiciary across numerous countries. This \xe2\x80\x9cjudicialization of politics\xe2\x80\x9d (Tate\nand Vallinder 1997; Brinks 2012) has manifested itself in several ways, including increased requests\nto adjudicate presidential elections. For example, the Ukrainian presidential election of 2004\nwitnessed high levels of outrage and frustration in response to a ruling by the Ukrainian Supreme\nCourt. Yet in the United States, the justices of the US Supreme Court rendered a decision in Bush v.\nGore (2000) that was widely accepted by society. What explains the differences in these reactions?\nIn large part, the different public responses may involve the fact that the United States is an\nestablished democracy with a long tradition of Supreme Court legitimacy, whereas Ukraine is\na semiconsolidated democracy whose Supreme Court has yet to develop such solidification. If\nthis is indeed the case, then it is important to better understand the mechanisms that facilitate\nhigh levels of public support for the judiciary, especially in relatively newly democratized nations.\nWhile a vast literature on trust in courts seeks to explain many of these factors in the context\nof the United States (e.g., Caldeira and Gibson 1992; Gibson, Caldeira, and Spence 2003), other\nestablished democracies (e.g., Gibson, Caldeira, and Baird 1998), and postconflict areas (e.g.,\nMcMahon and Western 2009; Bergling 2008; Sannerholm 2007), less attention has been paid to\ncountries experiencing postcommunist and nonviolent democratic transitions. The comparative\nlack of attention by judicial scholars is disconcerting, and this piece begins to bridge an important\ngap in the literature. If public trust is truly integral in the ability of a court system to realize\nits intended, democratically reinforcing purpose, it is important to understand the factors that\nfacilitate such support in as many developmental contexts as possible.\nThis chapter addresses these issues by focusing on levels of support for the judiciary across\nseveral countries in Eastern Europe and the former Soviet Union. Almost thirty years after the\ncollapse of the Soviet Union, the new nations that emerged chose many different paths in\ndetermining their own identities. These countries are ideal for comparison, as they all share a\nhistory of communist rule (whether they existed as Soviet Republics or as independent nations\nunder the Soviet Union\xe2\x80\x99s sphere of influence) and all broke away at approximately the same time.\nSince transitioning, these states have also been subject to external threats to their sovereignty\nfrom Russia and have had to confront internal issues of extensive corruption by organized crime\n656 | The Impact of Democratic Consolidation\n\n\x0c(Shelley 1995; Cheloukhine 2008). Additionally, a limited number of states, such as Poland and\nHungary, have recently experienced a rise in right-wing political groups that increasingly focus\nattacks on the courts in an effort to scale back judicial authority and/or undermine institutional\nlegitimacy.\nOur analysis of 2008 survey data from twenty-one of these countries reveals evidence that public\nconfidence in a country\xe2\x80\x99s justice system is impacted by both individual- and country-level factors.\n\n1\n\nAt the individual level, we find confidence in the justice system is most strongly influenced by\nconfidence in other governmental institutions. At the country level, we find that the level of\ndemocracy and the institutional development of the judiciary are the strongest predictors of high\nlevels of confidence in the justice system. Not altogether different from existing literature on\nLatin America suggesting that individual support of the judiciary is linked to one\xe2\x80\x99s ideological\nstanding as it relates to the regime (Walker 2016), these findings appear to support our theory that\nlegitimation is a two-level process of both system-level and personal evaluations of a government.\nPut simply, the kind of trust in the courts necessary to facilitate a consolidated, liberal judiciary\nresults from the following components: viability of democratic institutions and individual approval\n2\n\nof the regime.\n\nTrust as a Two-Level Process\nThat the \xe2\x80\x9cinstitutionalization\xe2\x80\x9d of new democratic structures is necessary to effectively transition\ntoward liberalism is nothing new, as ambiguous as the concept may be (e.g., Ghani and Lockhart\n2008; Betts and Orchard 2014). Accordingly, the question of which factors on the international and\nintrastate levels precipitate societal confidence in these developing institutions is fundamental.\nIn addition to channeling the interests of domestic political elites (e.g., Zurcher et al. 2013) one\nproposed solution to strengthening underdeveloped democracies at the system level has been to\n\n1. While we recognize that conditions in individual countries may have changed since 2007 (in some\ncases dramatically), the use of this data is still highly useful for identifying general trends. Our\ntheory is not time-bound, nor does it seek to explain specific responses in specific countries. Thus\nthese data are still useful for understanding general patterns. Moreover, the systematic changes that\nhave occurred in most of these countries in the intervening period have moved them further from\nthe transitioning stage. This early data may capture the dynamics during transition more closely\nthan current data would.\n2. Much like the term liberal democracy, our use of liberal judiciary is unrelated to liberal in an\nideological sense. Rather, we use the term to reference an independent judiciary in a democratic\nsystem.\nThe Impact of Democratic Consolidation | 657\n\n\x0cestablish an independent judiciary (Widner 2001; Ghani and Lockhart 2008; Walter 2015; Pritchett\net al. 2013, Reno 2008). A strong and independent judiciary can aid in the transition to democracy\nby helping a nation develop a legal culture free from corruption and political interference (Herron\nand Randazzo 2003; Larkins 1996). Yet this is easier said than done.\nThis is largely because understanding the mechanisms behind judicial independence is difficult.\nWhile most scholars see judicial independence as vitally important, it remains a concept for which\nscholars cannot agree on a uniform definition. Larkins (1996) provides one of the more thorough\ndefinitions when he states, \xe2\x80\x9cJudicial independence refers to the existence of judges who are not\nmanipulated for political gain, who are impartial toward the parties of a dispute, and who form\na judicial branch which has the power as an institution to regulate the legality of government\nbehavior, enact neutral justice, and determine significant constitutional and legal values\xe2\x80\x9d (611).\nWhile it is assumed that the presence of greater judicial independence in postcommunist\ncountries will facilitate the establishment of the rule of law and thus smooth the transition\n(or potentially complete the transition) from authoritarianism to consolidated democracy, many\nfeatures of the nation\xe2\x80\x99s authoritarian past hinder the development of judicial independence, thus\nslowing this transition or leading to backsliding toward authoritarianism after democratic gains\nhave been made (Herron and Randazzo 2003). Namely, a central concept of Soviet ideology was\nthe consideration of the state as a unitary actor drawing all its power directly from the proletariat\n(Howard 2001). Since the idea of an independent judiciary presumes a system of separated powers,\nthis concept is difficult to reconcile with the legacy of the communist legal system. Consequently,\nwhen transitioning to more democratic systems of governance, former Soviet countries not only\nhave had to develop new legal systems, they also have to develop a culture of constitutionalism\namong the mass and elite publics. These struggles are unique to the postcommunist states,\ndistinguishing them from other states, such as Chile or Argentina, that began their transitions to\ndemocracy peacefully and with some level of established constitutionalism (Walker 2016).\nAgain, this raises the question of how countries can escape this paradox, and avoid assumed\nantidemocratic path dependency. If judicial independence is necessary to establish the rule of\nlaw and facilitate the transition from authoritarianism to democracy, but remnants of the\nauthoritarian legacy constrain the development of an independent judiciary, then how is\ndemocratization to move forward? As Howard (2001, 103) points out, \xe2\x80\x9cprospects for a\nconstitutional culture are enhanced when state actors come to see the legitimacy of judicial\nreview and are willing to accept decisions they do not like.\xe2\x80\x9d In other words, when a judiciary is\nable to demonstrate enough institutional legitimacy to rule against the government and have its\ndecisions obeyed, then it has acquired a level of independence necessary to facilitate development\nof the rule of law and democratic transition.\nYet the development of judicial legitimacy does not occur simply through the creation and\ninternational support of a new system of law and government (Zeeuw 2005). At least one additional\n658 | The Impact of Democratic Consolidation\n\n\x0cmechanism is necessary: public support. This leads us to the second component of our theory\nregarding the determinants of citizen trust in post-Soviet court systems. Institutional legitimacy\nderived from public support should allow for the evolution of increased judicial independence, in\nturn easing the transition to democracy.\nTo this end, much of the research on legitimacy\xe2\x80\x94or diffuse support, as it is commonly\n3\n\ntermed \xe2\x80\x94focuses on this buildup of institutional support into a \xe2\x80\x9creservoir of favorable attitudes\nor good will that helps members [of the public] to accept or tolerate outputs to which they are\nopposed\xe2\x80\x9d (Easton 1966, 273). Absent this reservoir of goodwill, it is argued that courts will lack the\nability to rule \xe2\x80\x9cagainst the preferences of the majority, even when it may be necessary or wise to do\nso\xe2\x80\x9d (Gibson, Caldeira, and Spence 2003, 356), thus making popular legitimacy a central component\nnot only for the development of judicial independence but also for the type of trust needed for\nfacilitating the overall consolidation of democratic regimes.\nAt its most basic level, trust in a political institution is simply an evaluation of how the institution\nis performing vis-\xc3\xa0-vis one\xe2\x80\x99s normative expectations as to how it should be performing\n(Hetherington 1998). Yet even at this level, it is difficult to disentangle short-term support for\nspecific policy outputs from long-term support for the institution itself. This conceptual problem\nhas led to a great deal of debate in the literature about how to measure trust, and whether\ntrust\xe2\x80\x94even if it can be measured\xe2\x80\x94accurately reflects legitimacy.\nMuch of this debate focuses on the use of survey items that ask respondents about their level of\ntrust or confidence in a political institution. Some scholars argue that these confidence measures\nare useful only as a measure of specific support and not diffuse support (Caldeira and Gibson 1992;\nGibson, Caldeira, and Spence 2003; Gibson, Caldeira, and Baird 1998), where specific support refers\nto satisfaction with the institution\xe2\x80\x99s immediate policy outputs and diffuse support reflects longterm institutional support or legitimacy. However, the evidence provided by these scholars comes\nmostly from established democracies, where there is arguably a distinct difference between\nspecific support and diffuse support. In transitioning democracies, there simply has not been\nenough time for various institutions to develop similar levels of diffuse support. This is especially\naccurate for countries of the former Soviet Union, where public trust has not had ample time\nto accumulate. As Justice Todorov of the Bulgarian Constitutional Court noted, instances of the\ncourt standing up to the nation\xe2\x80\x99s powerful political forces \xe2\x80\x9cactually raised the Court\xe2\x80\x99s stature in\nthe public\xe2\x80\x99s eyes and elevated its institutional prestige\xe2\x80\x9d (quoted in Howard 2001, 103). Thus in these\nnewly established courts instances of public confidence in specific court outputs help to build up\n4\n\nthis reservoir of diffuse support.\n\n3. Diffuse support and legitimacy are generally used synonymously (Gibson, Caldeira, and Spence\n2003).\n4. A similar pattern arguably occurred in the early United States. After the Supreme Court established\nThe Impact of Democratic Consolidation | 659\n\n\x0cFurther complicating the assumption that confidence is not an accurate measure of diffuse\nsupport is the admission by the strongest proponents of this view that even in established\ndemocracies specific and diffuse support are related (Caldeira and Gibson 1992; Gibson, Caldeira,\nand Spence 2003; Gibson, Caldeira, and Baird 1998). It seems intuitive to predict that this\nrelationship would be even stronger in new democracies where there has not been sufficient\ntime to build up the long-term institutional loyalty necessary to produce distinct levels of diffuse\nsupport among the public (Mishler and Rose 1997). Therefore, while specific and diffuse support\nmay be distinct, albeit related, concepts when evaluating public opinion of courts in established\ndemocracies, there is sufficient evidence to suggest that this may not be the case in the newly\nestablished courts of post-communist Central and Eastern Europe. Not only do these new courts\nlack the reservoir of goodwill that courts in established democracies have developed over decades,\nbut the only institutional legacy their constituents have to draw on is one in which courts served\nas a mechanism by which governments coerced their citizens into obedience (Mishler and Rose\n1997; Howard 2001).\nHere again it is important to recognize the legacy of centralized rule on perceptions of support\nand regime legitimacy. Namely, the presumed unity of institutions under Soviet rule may have\nindelibly shaped the way citizens in these nascent democracies evaluate both the judiciary and\ntheir governing institutions at large. Support for one branch of the government may naturally\nfoster confidence in another.\nIn light of these challenges to democratic consolidation, scholarship describing the legitimation\n(or lack thereof) in both developed and postconflict settings gives us reason to believe that trust\nin the judiciary may be an interactive function of recognition and commendation. Put another\nway, to display confidence in their court system, citizens must be able to discern its integrity and\nsimultaneously extend approval to it as a part of the greater governance of their regime. Either\ncondition alone is insufficient to garner the trust necessary to foster democratic consolidation.\nThe Afghan and East Timorese cases provide glaring evidence of this. In the aftermath of the\nconflict, the international community poured resources into developing and sustaining\nsophisticated, liberal court systems in both states. However, it quickly became apparent that,\ndespite the demonstrable independence and aptitude of these court systems, citizens were\ngenerally refusing to utilize them due to pervading perceptions that the postconflict regime was\nnot culturally suitable to govern (Hohe 2003). Additionally, research on support for the judiciary\nin Latin America suggests that general predispositions toward a regime powerfully influence\nindividual approval of the courts.\n\nthe power of judicial review in the case Marbury v. Madison (1803), it did not exercise this authority\nagainst a federal statute until the Dred Scott case over fifty years later (Scott v. Sandford [1857]).\n660 | The Impact of Democratic Consolidation\n\n\x0cTheoretical Expectations and Hypotheses\nIn summary, previous research on judicial support in established democracies indicates that\nseveral factors influence public trust in courts (Caldeira and Gibson 1992; Gibson, Caldeira, and\nSpence 2003; Gibson, Caldeira, and Baird 1998). Our analysis focuses on two sets of influences: one\nset at the system (or state) level and the other at the individual level. It is our contention that the\ncombination of system- and individual-level factors provides the most appropriate explanation of\nconfidence in the justice system.\nAt the system level, one potential influence on public confidence in courts is the level of\ndemocratic consolidation within a country. As countries develop their democratic norms and\ninstitutions, one should expect to see increased attention paid to concepts such as the rule of law\nand procedural fairness. While confidence in courts is essential for building the level of judicial\nindependence necessary for the development of a robust rule of law, without some baseline level\nof democracy this public support cannot begin to develop and grow. Moreover, once that baseline\nhas been reached, increased democratic consolidation should lead to further growth in public\nconfidence in their country\xe2\x80\x99s judiciary. This is especially important for countries breaking away\nfrom communist control and the policies developed by the former Soviet Union, as citizens would\nneed to see a clear break from the prior legal system before they could develop the high levels of\nconfidence often found in established democracies. Therefore, our first hypothesis states,\n\nH1: As the level of democracy in a country increases, individuals in that country will be more likely to\nexpress greater levels of confidence in their judicial institutions.\n\nA second system-level influence on public confidence is the level of institutional development\nwithin a country\xe2\x80\x99s judiciary. This level of development is important because it determines the\nviability of an institution to meaningfully affect laws, regulations, and norms across society. A\nnonviable institution can issue edicts and/or orders; these, however, are likely to get ignored\nby other actors in the political system. Along with the development of democratic norms and\ninstitutions more generally, Bumin, Randazzo, and Walker (2009) show the specific importance of\ncourts attaining certain levels of institutional viability before they can play a significant role in\ndemocratic consolidation. Building on their initial conclusions, we argue that public confidence\nin courts is likely to increase as the level of institutional viability becomes more developed.\nConsequently, our second hypothesis claims,\n\nThe Impact of Democratic Consolidation | 661\n\n\x0cH2: As the level of judicial viability in a country increases, individuals in that country will be more likely to\nexpress greater levels of confidence in the courts.\n\nIn addition to the system-level influences, we expect individual-level factors to impact\nrespondents\xe2\x80\x99 attitudes toward their country\xe2\x80\x99s justice system. Most importantly, previous research\non Eastern Europe demonstrates that citizens often cannot distinguish among governmental\ninstitutions, and therefore equate questions of confidence in a specific institution to confidence\nin the government, broadly speaking (Mishler and Rose 1997). While this relationship is likely true\nfor all important government institutions, levels of confidence in parliament (as the central lawmaking body) and the police (as the most visible enforcers of the law) would have the greatest\ninfluence on levels of confidence in the justice system as a whole. Therefore, we hypothesize,\n\nH3: Individuals will express higher levels of confidence in their judicial institutions as their confidence in\nparliament and the police increases.\n\nData and Methods\nTo test our hypotheses regarding the impact of this set of system-level and individual-level\ninfluences on confidence in a country\xe2\x80\x99s justice system, we use data from a variety of sources. This\napproach is common in social science research as the collection of large-scale datasets is costly,\nboth in terms of time and resources. When researchers gather large amounts of systematic data\non a topic of interest to other scholars, they will typically make this data available for public use.\nThis reflects core values of science and encourages the replication of analyses and the expansion\nof knowledge through a series of independent research projects. Our primary data source is\n5\n\nthe 2008 wave of the European Values Survey (EVS 2011). The EVS is a large-scale survey that\n\n5. Nonetheless, we would have ideally updated the analysis using more recent data. However, release\nof the data from the 2017 wave of the EVS was delayed due to the COVID-19 pandemic and is not yet\navailable.\n662 | The Impact of Democratic Consolidation\n\n\x0casks a set of questions to citizens across most European countries. Because we are interested\nin countries that were either former Soviet republics or that were formerly communist and\nwithin the Soviet Union\xe2\x80\x99s sphere of influence in Eastern Europe, we do not examine respondents\nfrom other European countries. Additionally, we drop observations with missing data for any key\nvariables. This leaves us with meaningful responses from 28,903 individuals spread across twenty6\n\none countries.\n\nOur dependent variable is an individual measure of Confidence in the Justice System from the\nEVS. This is an ordinal measure capturing the level of confidence in the justice system of the\nrespondent\xe2\x80\x99s country. Each respondent in the survey was asked to rate their confidence in their\ncountry\xe2\x80\x99s judicial system on a four-point scale. We reverse coded this four-point scale so that 1\nrepresents a response of no confidence at all, 2 is not very much confidence, 3 is quite a lot of\nconfidence, and 4 is a great deal of confidence. Figure 1 shows the average response to the survey\nitem by country. As the figure shows, the average response in four countries is above 3 (Albania,\nBulgaria, Croatia, and Ukraine), indicating that the average respondent from those countries has a\nhigh level of confidence in their judicial system. In contrast, three countries fall below a 2.5 average\n(Azerbaijan, Belarus, and Estonia), indicating that the average level of trust in those countries is\nsignificantly lower. All other countries have respondents with an average level of trust between 2.5\nand 3.\n\nFigure 1: Average level of respondent trust in their\njustice system by country\n\n6. The twenty-one countries are Albania, Azerbaijan, Armenia, Belarus, Bulgaria, Croatia, Czech\nRepublic, Estonia, Georgia, Hungary, Latvia, Lithuania, Macedonia, Moldova, Poland, Romania,\nRussia, Serbia, Slovakia, Slovenia, and Ukraine.\nThe Impact of Democratic Consolidation | 663\n\n\x0cAs our primary theoretical interest lies in the relationship between the level of democratic\ndevelopment in a country and the level of public confidence in that nation\xe2\x80\x99s justice system, we\ninclude a variable measuring the Level of Democratic Development. This measure is obtained from\nthe Polity IV data. It is generated from measures of a nation\xe2\x80\x99s level of democracy or autocracy\nalong the following dimensions: competitiveness of political participation, regulation of political\nparticipation, competitiveness of executive recruitment, openness of executive recruitment, and\nconstraints on the chief executive (Marshall, Gurr, and Jaggers 2014). Per our first hypothesis, we\nexpect that this variable will be positively related to Confidence in the Justice System.\nOur theoretical model indicates that levels of judicial independence also affect public confidence\nin the courts. As a proxy measure for judicial independence, we rely on the Judicial Viability\nIndex developed by Bumin, Randazzo, and Walker (2009). This measure focuses specifically on\ncountries from the former Soviet Union and measures institutional development (i.e., viability)\nacross three major dimensions: differentiation, autonomy, and durability. As the authors explain\nin their article, these dimensions capture the extent to which courts are distinguishable from\nother governmental institutions (differentiation), whether they possess independent authority\nto affect laws and regulations established by the political branches of government (autonomy),\nand the length of time that they have had direct control over internal operating mechanisms\n(durability). The Judicial Viability Index combines specific indicators of these dimensions into a\nsingle empirical measure that fluctuates annually. As the authors note, \xe2\x80\x9caccording to our analysis\nof annual court data across several countries, myriad aspects pertaining to differentiation,\ndurability and autonomy represent a single, underlying dimension of viability that explains 89%\nof the variance in judicial institutions\xe2\x80\x9d (2009, 149). Because we believe that greater levels of\ninstitutional development within the judiciary will lead to higher levels of public confidence, we\nexpect a positive relationship to exist between the Judicial Viability Index and our dependent\nvariable.\nWhile judicial institutionalization is related to traditional notions of independence, it is still\nconceptually distinct. As such, we also include a more direct measure of de facto judicial\nindependence. Specifically, we use Linzer and Staton\xe2\x80\x99s (2015) latent judicial independence\nmeasure, which combines multiple existing judicial independence ratings along eight dimensions\nwhile adjusting for measurement error and missing data in the existing measures.\nThe final country-level variable is a measure of per capita GDP to account for the economic\nconditions of each country. This data comes from the ERS International Macroeconomic Data Set\n(Heerman 2015), with all values reported in 2010 US dollars. While we have no specific theoretical\nexpectations regarding this variable, economic conditions are likely to impact citizen perceptions\nof their government broadly, and potentially their perceptions of the justice system specifically,\ndespite its muted impact on economic conditions.\nAt the individual level, we include several measures drawn from various questions included in\n664 | The Impact of Democratic Consolidation\n\n\x0cthe EVS. Since the legacy of the previous communist regimes still looms large in many of the\nnations of postcommunist Central and Eastern Europe, there is theoretical evidence\xe2\x80\x94as well as\nevidence from previous research\xe2\x80\x94to suggest that many respondents in these countries may still\nview their national government as a unitary institution (Mishler and Rose 1997). Moreover, even if\nthis implicit view of the government as a single unit diminishes over time systematically as people\nbegin to become more familiar with their new government structure, there is still likely to be a\nstrong relationship between trust in one part of government and trust in others (Rohrschneider\n2005). Thus we expect that confidence in parliament and confidence in the police will be positively\nrelated to confidence in courts. Additionally, we include measures of the standard demographic\nvariables of gender, age, and education, although we do not hypothesize a directional relationship.\n\nResults\nTo test our theory, we apply a statistical model to our data that evaluates the relationship between\nthe different levels of the dependent variable and the independent variables we believe may have\nan effect. Since we expect that each country in the dataset will be affected to some extent by its\nunique characteristics and history, the model also accounts for potential differences (variation)\nbetween the individual countries included in the dataset. The results from this model (shown\nbelow) suggest that both system- and individual-level factors influence levels of public confidence\nin a nation\xe2\x80\x99s justice system in a way that is consistent with our theory.\n\nThe Impact of Democratic Consolidation | 665\n\n\x0cFixed effects\n\nPolity score\n\nJudicial viability\n\nJudicial independence\n\nPer capita GDP\n\nConfidence in police\n\nConfidence in parliament\n\nFemale\n\nAge\n\nEducation\n\n\xcf\x841\n\n\xcf\x842\n\n\xcf\x843\n\nRandom effects\n\nResidual (eij)\n\nCoefficient\n(Std. Error)\n0.068\n(0.025)\n0.594\n(0.284)\n-0.771\n(0.682)\n-0.002\n(0.002)\n0.973\n(0.017)\n0.935\n(0.018)\n-0.121\n(0.023)\n0.006\n(0.001)\n0.050\n(0.007)\n2.392\n(0.289)\n5.265\n(0.290)\n7.715\n(0.292)\nVariance\n(Std. Dev.)\n0.099\n(0.031)\n\n666 | The Impact of Democratic Consolidation\n\np-value\n\n0.01\n\n0.04\n\n0.26\n\n0.25\n\n0.00\n\n0.00\n\n0.00\n\n0.00\n\n0.00\n\n0.00\n\n0.00\n\n0.00\n\n\x0cFixed effects\n\nCoefficient\n(Std. Error)\n\nN\n\n28903\n\n\xcf\x872\n\n9057.25\n\np-value\n\n0.00\n\nTable 1: Determinants of confidence in the justice system\nDependent variable is respondent\xe2\x80\x99s level of confidence in the justice system measure on a four point ordinal scale from\n1 (None at all) to 4 (A great deal). Cell entries for the fixed-effects portion of the model are ordered logit coefficient\nestimates, with standard errors in parentheses.\n\nA country\xe2\x80\x99s level of democratic consolidation\xe2\x80\x94as measured by its Polity score\xe2\x80\x94and degree of\njudiciary institutional development positively impact the level of confidence in the justice system\nexpressed by its citizens. However, neither judicial independence nor national economic strength\nappears to have an important relationship with citizen confidence, according to our model. These\nresults are in line with the expectations outlined in our first two hypotheses, suggesting that\nindividual-level confidence in a country\xe2\x80\x99s justice system is positively impacted by increased levels\nof general democratic consolidation and institutional development within the judiciary more\nspecifically. These effects are independent of any individual-level factors.\nThese results align well with our theoretical expectations and prior research suggesting that while\npublic trust in the judiciary is an essential component for building up its institutional legitimacy,\nand that judicial independence is necessary for a state to enjoy the rule of law, necessary levels\nof this trust cannot be reached until a baseline level of democracy and institutionalization of\nthe judiciary has first been achieved. Moreover, while not the focus of our analysis, these results\nsuggest that once such a baseline level is reached, further democratic consolidation and increased\nlevels of trust in courts are likely to build off each other. Put simply, based on these results, we\nexpect that increases in one should lead naturally to increases in the other in something of a\npositive feedback loop.\nOur results also largely support our expectations regarding the individual factors contributing\nto confidence in a country\xe2\x80\x99s judiciary. The positive effects of confidence in parliament and\nconfidence in the police on confidence in the justice system are squarely in line with the\npredictions expressed in our third hypothesis. While this finding might seem intuitive for any\ncountry to some extent, the strength of the relationship here is likely a reflection of an internalized\ntendency among citizens in post-Soviet states to view their current government as a single,\nunified entity, the way they did in their communist past. Finally, while the statistical association\nbetween the dependent variable and the demographic variables included in the model indicate\nthere might be an important relationship, the substantive effects of these variables appear to be\n\nThe Impact of Democratic Consolidation | 667\n\n\x0cquite small, suggesting that the impact of these variables on confidence in the judiciary is not\nmeaningful.\n\nFigure 2: Marginal effects of country\xe2\x80\x99s polity score\non respondent\xe2\x80\x99s trust in the justice system\n\nFigure 3: Marginal effects of country\xe2\x80\x99s judicial\nviability index on respondent\xe2\x80\x99s trust in the justice\nsystem\n\nFigures 2\xe2\x80\x935 more directly illustrate the effects for our variables of interest. First, figures 2 and 3\nshow the substantive impact of shifting the two key country-level variables from their minimum\nto their maximum values on the probability a respondent will express a given level of confidence\nin courts (holding all other variables constant). In figure 2, we observe that moving from the lowest\nPolity score (Azerbaijan and Belarus) to the highest (Hungary, Lithuania, Poland, Slovakia, Slovenia,\nand Ukraine) equates to a significant increase in the likelihood a respondent will have quite a lot\n(by approximately 7.6 percent) or a great deal (by approximately 15.4 percent) of confidence in\nthe justice system. That same shift in the Polity score of a respondent\xe2\x80\x99s country corresponds to a\n668 | The Impact of Democratic Consolidation\n\n\x0cdecrease of about 19.5 percent in the probability she will claim to have not very much confidence\nin her justice system and a decrease of about 4.8 percent in the probability she will express no\nconfidence at all.\nSimilarly, as figure 3 illustrates, shifting the judicial viability index of the respondent\xe2\x80\x99s country\nfrom the minimum (Belarus) to the maximum (Slovenia) value corresponds with an increase in the\nlikelihood of an individual expressing that she has quite a lot (approximately by 16.2 percent) or a\ngreat deal (approximately by 8 percent) of confidence in the justice system and a decrease in the\nlikelihood of her expressing not very much confidence (approximately by 10.4 percent) or none at\nall (approximately by 1.7 percent).\n\nFigure 4: Marginal effects of respondent\xe2\x80\x99s trust in\npolice on respondent\xe2\x80\x99s trust in the justice system\n\nFigure 5: Marginal effects of respondent\xe2\x80\x99s trust in\nparliament on respondent\xe2\x80\x99s trust in the justice\nsystem\n\nThe Impact of Democratic Consolidation | 669\n\n\x0cFinally, figures 4 and 5 show that the impact of the key individual-level variables of interest is\nsignificantly greater than the impact of the key system-level factors. Shifting from the lowest level\nof confidence in the police or confidence in parliament to the highest level dramatically increases\nthe probability that a respondent will have quite have a lot (by approximately 22.5 percent and 24.1\npercent, respectively) or a great deal (by approximately 36 percent and 29.8 percent, respectively)\nof confidence in the justice system, while noticeably decreasing the probability of expressing not\nvery much confidence in the justice system (by approximately 46.8 percent and 36.5 percent,\nrespectively) or none at all (by approximately 11.9 percent and 17.1 percent, respectively).\n\nConclusion\nOur inquiry focused on levels of support for the judiciary across several countries in Eastern\nEurope and the former Soviet Union. Specifically, we attempted to determine the various\ninfluences on public confidence in the courts of postcommunist countries. Additionally, our\ntheoretical model attempted to address how confidence in the judiciary facilitates democratic\nconsolidation within these transitioning countries. Over the course of this research, several\nnoteworthy findings and conclusions emerged.\nFirst, our empirical models provide evidence that a country\xe2\x80\x99s level of democracy and the\ninstitutional development of the judiciary strongly affect public confidence in the judiciary. This is\nimportant for our understanding of the development of strong, healthy democracy generally, and\nthe rule of law specifically. While prior work has focused on the central role of judicial legitimacy\nin the development of the rule of law (O\xe2\x80\x99Donnell 2004; Teitel 1994; Widner 2001), our findings\nsuggest that the converse is also true, as the high levels of support necessary for legitimacy cannot\nform without some degree of judicial institutionalization and democratization. Future research\nshould further examine the complex interdependence of these concepts and the implications of\nthis relationship on facilitating successful democratic transitions.\nOur second general conclusion relates to our individual-level findings. While a country\xe2\x80\x99s level of\ndemocracy and the institutional development of its judicial system were important determinants\nof an individual\xe2\x80\x99s confidence in the justice system, these effects were muted in comparison to the\nimpact of that individual\xe2\x80\x99s confidence in other governmental institutions, specifically parliament\nand the police. The mere existence of a positive relationship is quite intuitive. However, the\nstrength of these relationships suggests that the legacy of a communist system where the\ngovernment existed as a single unitary entity continues to echo in the collective memory of these\nnations nearly twenty years later.\nThese results raise additional questions about the current environment for courts in the\n670 | The Impact of Democratic Consolidation\n\n\x0cpostcommunist countries. As we stated earlier, a limited number (such as Poland and Hungary) has\nrecently experienced a rise of right-wing political groups who increasingly focus their attention\non the judiciary and actively work to undermine judicial independence and legitimacy. To what\nextent have these groups been successful at decreasing public confidence in the courts?\nFortunately, new waves of data from both the World Values Survey and the European Values\nSurvey are set for public release in the near future. These datasets will contain the results\nof surveys conducted across multiple countries from 2017 to 2020. Once the data are publicly\navailable we will be able to compare the results from this study to the more recent survey\nresponses and determine the extent to which the conclusions remain consistent.\n\nReferences\nBergling, P. 2014. Implementation and World Politics: How International Norms Change Practice.\nOxford: Oxford University Press.\nBetts, Alexander, and Phil Orchard, eds. 2014. Implementation and World Politics: How International\nNorms Change Practice New York: Oxford University Press.\nBrinks, Daniel M. 2012. \xe2\x80\x9cThe Transformation of Latin American State-as-Law: State Capacity and\nthe Rule of Law.\xe2\x80\x9d RCP-Revista de Ciencia Politica 32 (3): 561\xe2\x80\x9383.\nBumin, Kirill M., Kirk A. Randazzo, and Lee D. Walker. 2009. \xe2\x80\x9cInstitutional Viability and High\nCourts: A Comparative Analysis of Post-communist States.\xe2\x80\x9d Australian Journal of Political Science\n44 (1): 127\xe2\x80\x9353.\nCaldeira, Gregory A., and James L. Gibson. 1992. \xe2\x80\x9cThe Etiology of Public Support for the Supreme\nCourt.\xe2\x80\x9d American Journal of Political Science 36 (3): 635\xe2\x80\x9364.\nCheloukhine, S. 2008. \xe2\x80\x9cThe Roots of Russian Organized Crime: From Old-Fashioned Professionals\nto the Organized Criminal Groups of Today.\xe2\x80\x9d Crime, Law and Social Change 50 (4\xe2\x80\x935): 353\xe2\x80\x9374.\nEaston, David. 1966. A Systems Analysis of Political Life. New York: Wiley.\nEVS. 2011. \xe2\x80\x9cEuropean Values Study 2008: Integrated Dataset (EVS 2008).\xe2\x80\x9d GESIS Data Archive,\nCologne. ZA4800 Data file version 3.0.0. https://doi.org/10.4232/1.11004.\nGhani, Ashraf, and Clare Lockhart. 2008. Fixing Failed States. 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Neal, and Torbjorn Vallinder. 1997. The Global Expansion of Judicial Power. New York: New\nYork University Press.\nTeitel, Ruti. 1994. \xe2\x80\x9cParadoxes in the Revolution of the Rule of Law.\xe2\x80\x9d Yale Journal of International Law\n19 (1): 239\xe2\x80\x9347.\nWalker, Lee D. 2016. \xe2\x80\x9cA Multilevel Explanation of Mass Support for the Judiciary.\xe2\x80\x9d Justice System\nJournal 37 (3): 194\xe2\x80\x93210.\nWalter, Barbara F. 2015. \xe2\x80\x9cWhy Bad Governance Leads to Repeat Civil War.\xe2\x80\x9d Journal of Conflict\nResolution 59 (7): 1242\xe2\x80\x9372.\nWidner, Jennifer A. 2001. Building the Rule of Law. New York: W. W. Norton.\nZeeuw, J. D. 2005. \xe2\x80\x9cProjects Do Not Create Institutions: The Record of Democracy Assistance in\nPost-conflict Societies.\xe2\x80\x9d Democratization 12 (4): 481\xe2\x80\x93504.\nZ\xc3\xbcrcher, Christoph, Carrie Manning, Kristie D. Evenson, Rachel Hayman, Sarah Reise, and Nora\nRoehner. 2013. Costly Democracy: Peacebuilding and Democratization after War. Stanford, CA:\nStanford University Press.\n\nStudent Activity\n1. For the following countries, identify the specific structure of their judiciary (how many\nThe Impact of Democratic Consolidation | 673\n\n\x0clevels of courts, names of court institutions). To what extent are the courts viewed as\nindependent?\na. Azerbaijan\nb. Belarus\nc. Czech Republic\nd. Georgia\ne. Kazakhstan\nf. Lithuania\ng. Moldova\nh. Russia\ni. Slovakia\nj. Turkmenistan\n2. For the countries listed above, how likely is it that average citizens will express trust in\ntheir judicial institutions? What effect will this trust (or lack of trust) have on the rule of\nlaw? Why?\n3. Pick one of the countries where you stated that average citizens should have a lack of\ntrust in their judicial institutions in Question 2. If a specific citizen in that country has a\nhigh level of trust in their country\xe2\x80\x99s parliament and police, do you think that individual\ncitizen would also have a high level of trust in their justice system? Why or why not?\n\n674 | The Impact of Democratic Consolidation\n\n\x0c27. Influence of Politicians on Public\nSupport for the Judiciary\nMILES T. ARMALY\n\nConventional wisdom suggests that members of the American mass public are strong proponents\nof an independent judiciary, and as a result, support for the Supreme Court is unaffected by the\nbehavior of the political branches. Indeed, decades of evidence show that most Americans support\nthe US Supreme Court even when it makes decisions with which they disagree (Caldeira and\nGibson 1992; Gibson, Caldeira, and Spence 2005). This chapter asks what might happen to support\n1\n\nfor the judiciary if the political branches began attacking the Supreme Court. In other words,\nwould ordinary citizens continue to support the Court, or would they listen to their preferred\npoliticians? And what might this mean for the judiciary?\nBy and large, Americans support the federal judiciary. According to a 2018 Gallup poll, nearly\n80 percent of Americans said they had at least some confidence in the Supreme Court; only\n50 percent of people said the same for Congress. The reasons for this support are myriad. For\nstarters, even though many do not believe the Court to actually be removed from politics, it\ndoes not behave like other political institutions. For instance, the Court\xe2\x80\x99s debates occur in secret,\nwhereas congressional debates\xe2\x80\x94such as confirmation hearings\xe2\x80\x94are broadcast on television and\nare often open to the public. Thus if there is hostility among the Supreme Court justices, such\nrancor is hidden from the public; the same is not true for Congress. Additionally, the judiciary\ntends to ground its decisions in legal precedent, lending more credibility to its claims. Moreover,\nthe Court uses many symbols\xe2\x80\x94such as robes and gavels\xe2\x80\x94that remind people about the\nimportance of the law and justice; these symbols lead people to have a \xe2\x80\x9cpositivity bias,\xe2\x80\x9d or a\nfavorable predisposition, toward courts (Gibson and Caldeira 2009; Gibson, Lodge, and Woodson\n2014). These differences between the judiciary and the other branches of government frequently\nhelp gird support for the institution. However, the single-most glaring difference between the\njudiciary and other institutions\xe2\x80\x94that its members are appointed, not elected\xe2\x80\x94can place the Court\nin a unique and precarious position that influences the legitimacy on which the Court relies.\n\n1. Generally speaking, researchers consider two types of support for the judiciary. Specific support is\njob satisfaction, or support for a particular decision. Diffuse support is the (lack of) willingness to\nmake lasting changes to the institution or decrease its independence. This chapter focuses on the\ndiffuse variant, and I use the terms legitimacy, institutional support, and diffuse support\ninterchangeably.\nInfluence of Politicians | 675\n\n\x0cInstitutional legitimacy is a prerequisite for governing. Institutions that are considered legitimate\nare viewed as having rightful and justified authority to exercise the powers that are vested\nin the office. In the United States, most institutions\xe2\x80\x94such as the presidency, Congress, and\nstate legislatures\xe2\x80\x94are seen as legitimate due to free and fair elections. Even people who are\ndisappointed with electoral outcomes still perceive the winners to have the authority to enact\nlaws and enforce them. However, because members of the federal judiciary are appointed instead\nof elected, they do not receive this important form of political capital (i.e., the ability to make\nrespected decisions; political influence) through elections. Instead, institutional legitimacy for the\nfederal judiciary must come in the form of public support. Public support is essential for the Court\nbecause it relies on the other branches to enforce its decisions. As Alexander Hamilton wrote\nin Federalist 78, the judiciary has \xe2\x80\x9cno influence over either the sword or the purse. . . . It may\ntruly be said to have neither FORCE nor WILL, but merely judgment.\xe2\x80\x9d That is, the judiciary has\nneither the power nor the funds to execute its decisions. Instead, the president, legislature, and\nstate governments (i.e., elected officials) must enforce them. However, members of the elected\nbranches are primarily motivated by reelection (Mayhew 1974). They are unlikely to enforce a\nSupreme Court decision when the Court is unpopular (i.e., when doing so may cost them votes\nin the next election). For proof, we need look no further than the refusal to desegregate schools\nin the American South after Brown v. Board of Education of Topeka (347 U.S. 483, 1954) or, more\nrecently, the refusal of some county clerks to issue marriage licenses to same-sex couples after\nObergefell v. Hodges (135 S. Ct. 2584, 2015). So the Court derives its legitimacy via public support for\nthe institution and its decisions. If the public supports the institution, elected officials will enforce\nits decisions (Clark 2009; Ura and Wohlfarth 2010).\nThe major question, then, is whether politicians are capable of diminishing the Court\xe2\x80\x99s legitimacy\nand thereby its ability to make decisions that are enforced. For the reasons mentioned above,\nconventional wisdom suggests that politicians cannot. Generally speaking, people support a\njudiciary that is free from meddling by the political branches. However, in recent years, Americans\nhave become increasingly reliant on \xe2\x80\x9ccues,\xe2\x80\x9d or pieces of information on how to act, from\npoliticians. These cues are said to have a \xe2\x80\x9cdominating impact\xe2\x80\x9d on citizen\xe2\x80\x99s positions (Cohen 2003),\nsuch that they \xe2\x80\x9cfollow the leader,\xe2\x80\x9d or simply adopt a preferred politician\xe2\x80\x99s policy positions (Lenz\n2012). And these cues have been shown to influence attitudes regarding the Supreme Court, where\nDemocrats like a specific court decision more when they believe a \xe2\x80\x9cDemocratic majority\xe2\x80\x9d reached\nit and vice versa (Nicholson and Hansford 2014), as well as the willingness to pass legislation that\nreduces the judiciary\xe2\x80\x99s ability to act (Clark and Kastellec 2015). So despite the conventional wisdom\nthat average citizens are predisposed to have positive attitudes about the Court (Gibson and\nCaldeira 2009), there is reason to believe that statements regarding the Court from a preferred\npolitical figure might impact views of the judiciary.\nTo find out if politicians can influence public attitudes about the Court, I conducted two survey\n\n676 | Influence of Politicians\n\n\x0c2\n\nexperiments\xe2\x80\x94one about Hillary Clinton and one about Donald Trump. Participants were asked\na series of questions that measure how legitimate they think the Court is. These legitimacy\nquestions, designed by Gibson, Caldeira, and Spence (2003) and listed below, ask how much one\nagrees or disagrees, on a 5-point scale, with statements regarding the Court\xe2\x80\x99s independence. More\nspecifically, they gauge an individual\xe2\x80\x99s willingness to make lasting changes to the institution. Those\nsupportive of making such changes believe the Court is less legitimate than those who disagree\nwith making these changes.\n\n3\n\n1. If the Supreme Court started making decisions that most people disagree with, it might be\nbetter to do away with the Court.\n2. The right of the Supreme Court to decide certain types of controversial issues should be\nreduced.\n3. The US Supreme Court gets too mixed up in politics.\n4. Justices who consistently make decisions at odds with what a majority of the people want\nshould be removed.\n5. The US Supreme Court ought to be made less independent so that it listens a lot more to\nwhat the people want.\n6. We ought to have a stronger means of controlling for actions of the US Supreme Court.\n7. The Court favors some groups more than others.\nTo determine how much legitimacy an individual thinks the Court has, I take his or her average\nresponse across all seven legitimacy items. A high score means that somebody thinks the elected\nbranches should leave the judiciary be, whereas low scores indicate that somebody thinks the\nSupreme Court has too much authority and should be less independent.\nSome respondents were randomly assigned to answer these legitimacy questions a second time\n(after answering demographic questions such as age, income, and education so that they wouldn\xe2\x80\x99t\nremember their original answers). Others were randomly assigned to read the following sentence:\nRecently, in a speech given to supporters, Democratic presidential candidate Hillary Clinton\n[in the Trump experiment: \xe2\x80\x9cpresident-elect Donald Trump\xe2\x80\x9d] made some controversial remarks\n\n2. Data were collected using Amazon\xe2\x80\x99s Mechanical Turk platform in October 2016 (Clinton experiment,\nN = 708) and November 2016 (Trump experiment, N = 503).\n3. Note that agreement with these questions indicates a lack of legitimacy, or illegitimacy. So to\nmeasure legitimacy, I subtract each response from 6 to reverse the scale. For example, if somebody\nstrongly agreed\xe2\x80\x94a response of 5, the highest option possible\xe2\x80\x94to a question, I merely subtract 5\nfrom 6 so that score is now 1 (the lowest option possible, or a lack of legitimacy).\nInfluence of Politicians | 677\n\n\x0cregarding the United States Supreme Court. Below, some of her [his] critiques will be paraphrased.\nPlease indicate your level of agreement with Hillary Clinton\xe2\x80\x99s [Donald Trump\xe2\x80\x99s] statements.\nThe people who read this sentence were asked the original legitimacy questions again, but this\ntime, they were told that Hillary Clinton (in Experiment 1) or Donald Trump (in Experiment 2)\nhad made those hostile statements about the Court. For example, instead of responding to the\nquestion above, they read, \xe2\x80\x9cHillary Clinton commented, \xe2\x80\x98The Supreme Court ought to be made less\n4\n\nindependent\xe2\x80\x99 so that it listens a lot more to what the people want. Do you agree or disagree?\xe2\x80\x9d\n\nTo find out if these statements changed people\xe2\x80\x99s minds about the Supreme Court after hearing the\nhostile statements, I subtract the average response from the first set of answers from the average\nresponse from the second set. I then rescale this variable from \xe2\x88\x921 to 1, such that positive values\nmean an increase in institutional support, or legitimacy, and negative values mean a decrease in\ninstitutional support. Importantly, I also ask people how they feel about Hillary Clinton and Donald\nTrump. To do so, I employ a \xe2\x80\x9cfeeling thermometer,\xe2\x80\x9d which measures \xe2\x80\x9caffect,\xe2\x80\x9d or one\xe2\x80\x99s emotional\nreaction, toward the political figure. Temperatures range from 0 to 100, where 0 means a person\nis extremely \xe2\x80\x9ccold,\xe2\x80\x9d or does not like the politician, and 100 means he or she is extremely \xe2\x80\x9cwarm,\xe2\x80\x9d\nor very much like the politician. The midpoint, 50, means a person neither likes nor dislikes\nthe politician. This is a useful way to determine how one feels about the figure purported to\ndenounce the Court, as we can be more certain that this measure of pure affect relates directly\nto the politician as opposed to his or her ideology or the party he or she represents. Consider\nthe specifics of the 2016 election; many Democrats did not like Clinton, and many Republicans did\nnot like Trump. Measuring individuals\xe2\x80\x99 emotional reactions to these figures is different than asking\nif they like the political party, if they respect the candidate, or if they agree with the candidate\nideologically.\nThe expectation is that people who like Donald Trump will exhibit less support for the Court upon\nhearing his negative comments about the Court. A person may think, \xe2\x80\x9cI like (i.e., am affectively\npositive toward) Donald Trump, and he just criticized the Court, so I must like the Court less than\nI thought.\xe2\x80\x9d Conversely, people who dislike Donald Trump may have the opposite reaction: \xe2\x80\x9cI loathe\nDonald Trump, and he seemingly dislikes the Court, so I must like the Court more than I thought.\xe2\x80\x9d\nI expect the same relationship regarding Hillary Clinton; her supporters will believe the Court to\nbe less legitimate after hearing her statements, and her detractors will offer more support to the\nCourt.\n\n4. Importantly, these are general claims about the Court, but they do not focus on a particular\ndecision. As such, we cannot determine how attacks on specific cases might influence the public.\n678 | Influence of Politicians\n\n\x0cFigure 1. Change in legitimacy across affect for\nClinton and Trump, by treatment.\n\nFigure 1 shows the degree to which affect toward either Trump or Clinton influences institutional\nsupport for the Supreme Court for both people in the experimental treatment (i.e., those who\nbelieve Trump or Clinton said negative things about the Court) and those in the control group\n(i.e., those who simply responded to the legitimacy questions twice without reading any statement\nby Trump or Clinton). People who are not led to believe that Trump or Clinton said the Court\nshould be less independent should not change their views about the Court whatsoever. This is\nprecisely what is borne out in the data. In both the Clinton panel (at left) and the Trump panel\n(at right), the solid line marked \xe2\x80\x9ccontrol\xe2\x80\x9d is relatively flat (i.e., is not statistically different from 0).\nIn other words, support for the Court is consistent, meaning control-group individuals respond\nto the seven legitimacy questions in a similar fashion the first time they encounter them as the\nsecond time.\nWhen looking at the dashed lines marked \xe2\x80\x9ctreatment,\xe2\x80\x9d however, a different story unfolds.\nBeginning in the Clinton panel, individuals who dislike Clinton\xe2\x80\x94that is, those whose affect toward\nher is between 0 and 30\xe2\x80\x94increase their level of support for the Court after hearing her negative\nstatements. Thus these individuals may think, \xe2\x80\x9cI dislike Clinton, and she dislikes the Court, so I\nmust like the Court.\xe2\x80\x9d This effect is similar for those opposed to Trump; from affect levels from 0\nto 20, individuals increase their support for the Court upon hearing Trump\xe2\x80\x99s negative statements.\nFor both politicians, the effect is statistically different from the control group for these values (at\np < 0.05 level).\nWhen examining those who are middling in their affect toward both figures\xe2\x80\x94around 30 to 55 for\nClinton and 20 to 50 for Trump\xe2\x80\x94the effects are inconclusive. That is, individuals in those ranges\ndo not change their opinions about the Court; the effect is not statistically different from the\ncontrol group for these values (i.e., is not significant). This is sensible. People who aren\xe2\x80\x99t sure\nInfluence of Politicians | 679\n\n\x0chow they feel about Trump or Clinton but neither love nor loathe them are less likely\xe2\x80\x94relative to\nsomebody who for certain knows her feelings toward the figure\xe2\x80\x94to bring that affect to bear on\nthe Supreme Court.\nFinally, those who are generally positive toward the figures\xe2\x80\x94around 55 to 100 for Clinton and\n50 to 100 for Trump\xe2\x80\x94decrease their support for the Court. The effect is statistically significant\n(i.e., statistically different from the control group) in this range. That is, a Trump supporter might\nthink, \xe2\x80\x9cI love Trump, and he dislikes the Court, so I must dislike the Court.\xe2\x80\x9d And these effects are\nlargest for the staunchest Clinton and Trump supporters, such that individuals who adore these\npoliticians end up disliking the Court. Overall, these are substantively large effects. Across the\nrange of affect, the decrease in legitimacy is 0.64 units, or about 32 percent of the range of change\nin legitimacy, for Trump; for Clinton, these values are 0.93 units and 46 percent of the range.\nIn other words, relative to people who dislike the politicians, those who like them have radically\ndifferent views of the Court upon hearing the figure speak of the judiciary.\nThis is a problematic discovery for the constitutional role of the Supreme Court in American\ndemocracy. The Court is intended to be immune from political pressures. As Hamilton suggests in\nFederalist 78, federal judges are appointed for life precisely to avoid consideration of the political\nwhims of the day. Yet the Court requires public support in order to expect compliance with and\nenforcement of its decisions. The executive, legislature, and state governments must assist the\nCourt in implementing its decisions. And they are likely to do so when the public supports the\nSupreme Court. However, as these results show, political figures themselves are able to influence\npublic support for the Court. Democratic theory suggests that political figures ought to be bound\nby public will; here, we see that they can influence what the public wants. Consider a politician\nwho suspects that the Court will rule to uphold affirmative action. The results here suggest that\nthe politician can merely promote dislike of the Court among his supporters in order to create\na circumstance where (A) he does not have to enforce the affirmative action ruling and (B) he is\npotentially not punished for failing to enforce the ruling.\nMore broadly, politicians may rhetorically attack the Court in order to avoid the repercussions of\nfailing to acquiesce to an unfavorable Court decision or to turn public tides away from the Court.\nConsider President Trump tweeting, \xe2\x80\x9cHow broken and unfair our Court System is,\xe2\x80\x9d or suggesting\nthat the Ninth Circuit Court of Appeals should be broken up into two or three courts (Brennan\nCenter for Justice). Certainly, his supporters would be suspect of any decisions from the Ninth\nCircuit, and they may believe the Supreme Court to be less legitimate in cases where it upholds a\ndecision from the Ninth Circuit. Importantly, Trump is not the only political actor to criticize the\nSupreme Court (although few have done so as blatantly); President Obama was a vocal critic of the\njudiciary (Jaffe 2015).\n\n680 | Influence of Politicians\n\n\x0cAffect, or Learning about the Court?\nAbove, I assert that affect toward Donald Trump or Hillary Clinton influences people\xe2\x80\x99s attitudes\nregarding the Supreme Court. Indeed, people who like the politician express dislike for the Court\nand vice versa when they hear the politician publicly decry the judiciary. One alternate explanation\nfor this effect is that people are learning something about the Court. Most people do not know\nmuch about the Court\xe2\x80\x99s political position (Bartels and Johnston 2013). Many people can rightly\nstate that Congress is either liberal or conservative at any given point in time. They can do\nthe same for the president. But they struggle mightily to accurately complete this task for the\nSupreme Court (Hetherington and Smith 2007). So it may be that hearing information from Trump\nor Clinton reveals to an individual whether the Court is ideologically similar to him . Thus instead\nof thinking, \xe2\x80\x9cI like Clinton, and she dislikes the Court, so I must dislike the Court,\xe2\x80\x9d an individual who\nlearns something from Clinton\xe2\x80\x99s statements might think, \xe2\x80\x9cI know Clinton is liberal, and she dislikes\nthe Court, so the Court must be conservative.\xe2\x80\x9d In other words, one might update how ideologically\ndistant he feels from the Court and alter his level of support accordingly. If this were the case, it\nwould be much less worrisome for the Supreme Court. For an individual to react negatively to an\ninstitution with which he politically disagrees is much less troublesome than a politician\xe2\x80\x99s ability\nto influence public attitudes about the Court.\nTo find out if affect or learning something new about the Court influences institutional support, I\nuse the data described above. To determine how ideologically distant one feels from the Court, I\nask survey respondents to describe their own ideology on a 5-point scale, ranging from extremely\nliberal to extremely conservative. Then I ask them to describe where they believe the Court is on\nthe same 5-point scale and take the absolute value of the difference between these two properties.\nI ask respondents to do this both before and after they read the comments by Trump or Clinton\nabout the Court.\n\nFigure 2. Ideological placement of self and Court,\nbefore and after treatment.\n\nInfluence of Politicians | 681\n\n\x0cFigure 3. Change in legitimacy across change in\nideological distance from Court.\n\nConsider figure 2, which gives an example of this 5-point ideology scale. An individual places\nherself at a moderately liberal position, 2. Before she hears Trump or Clinton\xe2\x80\x99s statements, she\nperceives the Court to be at an extremely conservative position, 5. Thus her perceived ideological\ndistance from the Court is 3 units. After hearing the statements, she adjusts her position of the\nCourt, now perceiving it to be moderate, at 3, which is 1 unit from her position. The variable of\ninterest is the change in perceived ideological distance. To calculate this, I subtract the before\ndistance (3) and from the after distance (1). So in the example in figure 2, the change in ideological\ndistance equals \xe2\x88\x922, which means the perceived distance between an individual and the Court\ndecreased. That is, the respondent in figure 2 perceived the Court to be closer to her in ideological\nspace based on the statements she heard from the politician. This variable ranges from \xe2\x88\x924 to 4,\nwhere positive values mean the perceived distance between oneself and the Court has grown\nlarger after hearing a politician\xe2\x80\x99s negative statements, and negative values mean one feels closer\nto the Court in ideological terms.\nFigure 3 shows the effects of change in ideological distance on the change in institutional support.\nEach dot is the estimated effect of the change in ideological distance on the change in support,\nor legitimacy. The vertical lines around the dots are 95 percent confidence intervals. When one\nof these vertical lines also intersects 0.0 on the y-axis, it means there is no meaningful effect at\nthat level of change in ideological distance. So despite the downward slope, there is no actual\neffect of change in ideological distance on change in diffuse support; the effect is not statistically\nsignificant. This means that respondents are not learning new information about the Court when\nthey hear Trump or Clinton\xe2\x80\x99s negative statements about the judiciary. That is, they are not\nideologically updating. Instead, as we learned in figure 1, it means people react to the politician\xe2\x80\x99s\nstatements based exclusively on whether they like the politician. Respondents who like Clinton\n\n682 | Influence of Politicians\n\n\x0csuddenly dislike the Court not because they find out the Court is more conservative than they\noriginally thought but because they like Clinton.\nDuring his 2010 State of the Union address, President Obama rebuked the Supreme Court\xe2\x80\x99s recent\ndecision in Citizens United v. Federal Election Commission (558 U.S. 310, 2010). He began, \xe2\x80\x9cWith all\ndue deference to the separation of powers\xe2\x80\x9d before lambasting the Court for reversing \xe2\x80\x9ca century\nof law.\xe2\x80\x9d Vice President Joe Biden was less subtle in the days that followed. He said the decision\nwas \xe2\x80\x9cdead wrong\xe2\x80\x9d and that \xe2\x80\x9cwe have to correct it,\xe2\x80\x9d calling into question the Court\xe2\x80\x99s final word on\na constitutional matter. Moreover, he noted that President Obama \xe2\x80\x9cquestioned the judgment\xe2\x80\x9d of\nthe Court. Although a single decision ignited this political kerfuffle, not everybody believed this\nwas merely a complaint about the Citizens United case. Senator John Cornyn, a Republican, more\ndirectly tied Obama\xe2\x80\x99s comments to the constitutional justification for independence. He remarked,\n\xe2\x80\x9cI don\xe2\x80\x99t think the president should have done what he did in trying to call out the Supreme Court\nfor doing its job. They are the final word on the meaning of the United States Constitution, even\nwhen we don\xe2\x80\x99t like the outcome\xe2\x80\x9d (Williams, O\xe2\x80\x99Donnell, and Strickland 2010).\nWhat happens when political figures speak out against the Supreme Court? The evidence here\nsuggests that politicians can compel their supporters to disagree with the Court. However, it also\nsuggests that those opposed to politicians may support the judiciary more based on politicians\xe2\x80\x99\nstatements. Nevertheless, malleability in the evaluations of the institution that provide it with\n5\n\npolitical capital is problematic. Should we worry about the Supreme Court\xe2\x80\x99s legitimacy? It seems\nthat some justices already do. In a 2017 speech, Chief Justice John Roberts remarked, \xe2\x80\x9cIt is a\nreal danger that the partisan hostility that people see in the political branches will affect the\nnonpartisan activity of the judicial branch\xe2\x80\x9d (quoted in Greenhouse 2017). Although Roberts did not\ndiscuss how the Court might react to this hostility, it is clear the judiciary is considering the way\nit is discussed and how that may influence members of the mass public. Even members of the\nelected branches have recognized this threat. President Obama warned that when people \xe2\x80\x9cjust\nview the courts as an extension of our political parties,\xe2\x80\x9d public trust in the judicial branch can\nbe harmed (quoted in Lithwick 2016). So as the evidence presented here suggests, Chief Justice\nRoberts and President Obama may rightfully be concerned about the political branches actively\nseeking to influence public attitudes regarding the Supreme Court.\nAn important component of this influence is that prominent politicians may be required to actively\ndecry the Court in order to compel followers to disagree with the judiciary\xe2\x80\x99s rulings (although\n\n5. It is important to consider that the effects of experimental treatments may fade as time passes. In\nother words, one\xe2\x80\x99s assessment of the Court\xe2\x80\x99s legitimacy may \xe2\x80\x9cbounce back\xe2\x80\x9d in the absence of\nreinforcing statements about the Court. However, as is noted here, criticisms of the judiciary and its\ndecisions have increased in recent decades; reinforcing statements may not be as sparse as they\nonce were.\nInfluence of Politicians | 683\n\n\x0cwe cannot conclusively test this with these data). This fact may assuage concern among some, as\nhistorically speaking, criticism of the Court by political figures was rare (Totenberg 2017). Modern\npresidents increasingly voice disappointment with the Supreme Court and about rulings with\nwhich they disagree. For instance, one journalist asked, \xe2\x80\x9cWhy does President Obama criticize the\nSupreme Court so much?\xe2\x80\x9d (Jaffe 2015). Another noted that President Bush once remarked, \xe2\x80\x9cWe\xe2\x80\x99ll\nabide by the Court\xe2\x80\x99s decision. That doesn\xe2\x80\x99t mean I have to agree with it,\xe2\x80\x9d and even though past\npresidents have been harsh with the Court, President Trump is \xe2\x80\x9cout of line with past presidents\xe2\x80\x9d\n(Totenberg 2017). Altogether, it seems that major political figures do criticize the Court, making\nvery real the possibility that they might compel their followers to ignore the Court and thereby\nreduce the power of its rulings.\nOne critical consideration is whether there are differences in criticizing a particular decision\n(which might decrease specific support) and criticizing the Court and its justices more generally\n(which might decrease legitimacy). In this chapter, I do not differentiate between the two types\nof criticisms, nor can we ascertain how they may influence the public from the analyses above.\nHowever, one way for the Court to build legitimacy is by deciding a sequence of cases with which\none agrees on policy grounds (Gibson, Caldeira, and Baird 1998). But people do not know much\nabout the Court, nor do they necessarily understand if a decision was pleasing. And as the quote\nby Senator Cornyn suggests, complaints about a particular decision reflect more broadly on the\ninstitution itself. So I suspect that a politician to whom one looks for cues may be able to influence\nattitudes toward the Court, whether the criticism be of a single decision, of the Court itself, or\nof a particular justice. Interested readers should consider the difference and how various political\nattacks might differentially influence the Court.\nFinally, what is not considered here\xe2\x80\x94and that curious readers may ponder\xe2\x80\x94is how notorious\none needs to be to influence public attitudes regarding the Supreme Court. Can only presidents\nand presidential candidates influence the public? What about congresspersons, or governors, or\npolitical media personnel? For what reasons may these individuals be able to influence the public?\nFor what reasons might they not be able to? If only the most influential political figures are\ncapable of harming the Court, we may rest easy. However, should many individuals be capable of\ninfluencing public evaluations of the judiciary, consternation may be more warranted.\n\nReferences\nBartels, Brandon L., and Christopher D. Johnston. 2013. \xe2\x80\x9cOn the Ideological Foundations of\n\n684 | Influence of Politicians\n\n\x0cSupreme Court Legitimacy in the American Public.\xe2\x80\x9d American Journal of Political Science 57 (1):\n184\xe2\x80\x9399. (\xe2\x86\xb5 Return)\nBrennan Center for Justice. 2017. \xe2\x80\x9cIn His Own Words: The President\xe2\x80\x99s Attacks on the Courts.\xe2\x80\x9d\nBrennan Center for Justice, June 17. https://www.brennancenter.org/analysis/his-own-wordspresidents-attacks-courts (\xe2\x86\xb5 Return)\nCaldeira, Gregory A., and James L. Gibson. 1992. \xe2\x80\x9cThe Etiology of Public Support for the Supreme\nCourt.\xe2\x80\x9d American Journal of Political Science 36: 635\xe2\x80\x9364. (\xe2\x86\xb5 Return)\nClark, Tom S. 2009. \xe2\x80\x9cThe Separation of Powers, Court-curbing, and Judicial Legitimacy.\xe2\x80\x9d American\nJournal of Political Science 53 (4): 971\xe2\x80\x9389. (\xe2\x86\xb5 Return)\nClark, Tom S., and Jonathan P. Kastellec. 2015. \xe2\x80\x9cSource Cues and Public Support for the Supreme\nCourt.\xe2\x80\x9d American Politics Research 43: 504\xe2\x80\x9335. (\xe2\x86\xb5 Return)\nCohen, Geoffrey L. 2003. \xe2\x80\x9cParty Over Policy: The Dominating Impact of Group Influence on\nPolitical Beliefs.\xe2\x80\x9d Journal of Personality and Social Psychology 85 (5): 808\xe2\x80\x9322. (\xe2\x86\xb5 Return)\nGibson, James L., and Gregory A. Caldeira. 2009. Citizens, Courts, and Confirmations: Positivity\nTheory and the Judgments of the American People. Princeton: Princeton University Press. (\xe2\x86\xb5\nReturn 1) (\xe2\x86\xb5 Return 2)\nGibson, James L., Gregory A. Caldeira, and Vanessa A. Baird. 1998. \xe2\x80\x9cOn the Legitimacy of National\nHigh Courts.\xe2\x80\x9d American Political Science Review 92 (2): 343\xe2\x80\x9358. (\xe2\x86\xb5 Return)\nGibson, James L., Gregory A. Caldeira, and Lester Kenyatta Spence. 2003. \xe2\x80\x9cMeasuring Attitudes\ntoward the United States Supreme Court.\xe2\x80\x9d American Journal of Political Science 47 (2): 354\xe2\x80\x9367. (\xe2\x86\xb5\nReturn)\nGibson, James, Gregory Caldeira & Lester Spence. (2005). Why Do People Accept Public Policies\nThey Oppose? Testing Legitimacy Theory with a Survey-Based Experiment. Political Research\nQuarterly,58(2), 187-201. doi:10.2307/3595622 (\xe2\x86\xb5 Return)\nGibson, James L., Milton Lodge, and Benjamin Woodson. 2014. \xe2\x80\x9cLosing, but Accepting: Legitimacy,\nPositivity Theory, and the Symbols of Judicial Authority.\xe2\x80\x9d Law & Society Review 48 (4): 837\xe2\x80\x9366. (\xe2\x86\xb5\nReturn)\nGreenhouse, Linda. 2017. Will Politics Tarnish the Supreme Court\xe2\x80\x99s Legitimacy?\xe2\x80\x9d The New York\nTimes. 26 October 2017. Available: https://www.nytimes.com/2017/10/26/opinion/politicssupreme-court-legitimacy.html?rref=collection%2Fsectioncollection%2Fopinion (\xe2\x86\xb5 Return)\n\nInfluence of Politicians | 685\n\n\x0cHetherington, Marc J., & Joseph L. Smith. (2007). Issue Preferences and Evaluations of the U.S.\nSupreme Court. (\xe2\x86\xb5 Return)\nJaffe, Greg. 2015. \xe2\x80\x9cWhy Does President Obama criticize the Supreme Court so much?\xe2\x80\x9d The\nWashington Post, June 20. https://www.washingtonpost.com/politics/why-does-presidentobama-criticize-the-supreme-court-so-much/2015/06/20/b41667b4-1518-11e5-9ddce3353542100c_story.html (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nLenz, Gabriel S. 2012. Follow the Leader: How Voters Respond to Politicians\xe2\x80\x99 Policies and\nPerformance. Chicago: The University of Chicago Press. (\xe2\x86\xb5 Return)\nLithwick,\n\nDahlia.2016.\n\n\xe2\x80\x9cChuck\n\nGrassley\xe2\x80\x99s\n\nSupreme\n\nCourt\n\nCoup.\xe2\x80\x9d\n\nSlate.\n\n7\n\nApril\n\n2016.\n\nhttp://www.slate.com/articles/news_and_politics/jurisprudence/2016/04/\nsen_chuck_grassley_attacks_the_supreme_court_john_roberts.html (\xe2\x86\xb5 Return)\nMayhew, D. R. (1974). Congress: The electoral connection. New Haven: Yale University Press. (\xe2\x86\xb5\nReturn)\nNicholson, Stephen P., and Thomas G. Hansford. 2014. \xe2\x80\x9cPartisans in Robes: Party Cues and Public\nAcceptance of Supreme Court Decisions.\xe2\x80\x9d American Journal of Political Science 58 (3): 620\xe2\x80\x9336. (\xe2\x86\xb5\nReturn)\nTotenberg, Nina. 2017. \xe2\x80\x9cTrump\xe2\x80\x99s Criticism of Judges Out of Line with past Presidents.\xe2\x80\x9d The New York\nTimes, February 11. http://www.npr.org/2017/02/11/514587731/trumps-criticism-of-judgesout-of-line-with-past-presidents (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nUra, Joseph Daniel, and Patrick C. Wohlfarth. 2010. \xe2\x80\x9cAn Appeal to the People: Public Opinion and\nCongressional Support for the Supreme Court.\xe2\x80\x9d The Journal of Politics 72 (4): 939\xe2\x80\x9356. (\xe2\x86\xb5 Return)\nWilliams, Pete, Kelly O\xe2\x80\x99Donnell, and Ken Strickland. \xe2\x80\x9cJustice openly disagrees with Obama in\nspeech.\xe2\x80\x9d\n\nNBC\n\nNews,\n\nJanuary\n\n28.\n\nhttp://www.nbcnews.com/id/35117174/ns/politics-\n\nwhite_house/t/justice-openly-disagrees-obama-speech/ (\xe2\x86\xb5 Return)\n\nEmpirical exercise\nStudents calculate their diffuse support scores and their perceived ideological distance scores,\nand the class determines if there is a correlation (either by calculating or guesstimating, based on\nresponses) between the two.\n686 | Influence of Politicians\n\n\x0cDiffuse support score\nIndicate whether you strongly agree (1), somewhat agree (2), neither agree nor disagree (3),\nsomewhat disagree (4), or strongly disagree (5) with each of\n\nthe items below. Be sure to keep\n\ntrack of your score.\n1. If the Supreme Court started making decisions that most people disagree with, it might be\nbetter to do away with the Court\n2. The right of the Supreme Court to decide certain types of controversial issues should be\nreduced\n3. The U.S. Supreme Court gets too mixed up in politics\n4. Justices who consistently make decisions at odds with what a majority of the people want\nshould be removed\n5. The U.S. Supreme Court ought to be made less independent so that it listens a lot more to\nwhat the people want\n6. We ought to have a stronger means of controlling for actions of the U.S. Supreme Court\n7. The Court favors some groups more than others\nThen, add all seven number together and divide by 7. This is your diffuse support score, on a scale\nfrom 1 (low support) to 5 (high support).\n\nPerceived ideological distance\nRespond to the following two items:\n1. Would you consider yourself very liberal (1), liberal (2), moderate (3), conservative (4), or very\nconservative (5)?\n2. Would you consider the U.S. Supreme Court very liberal (1), liberal (2), moderate (3),\nconservative (4), or very conservative (5)?\nThen, subtract the two numbers and take the absolute value. This is your perceived ideological\ndistance score, on a scale from 0 (no distance) to 4 (large distance).\n\nAs a class\nDepending on the classroom size, the instructor could calculate the product moment correlation,\nor could graph each point to determine if there is a trend, or could otherwise summarize the data.\nInfluence of Politicians | 687\n\n\x0cDiscussion Questions\n1. The evidence suggests that a politician can influence public views of the judiciary when he or\nshe criticizes the Court as a whole. Consider what might happen when a politician is critical\nof a particular decision the Supreme Court makes. Will it have the same influence? Now\nconsider what might happen if a president who has nominated multiple justices criticizes the\nCourt.\n2. Consider how famous an individual has to be before his or her statements about the judiciary\ncan influence views of the Supreme Court. Can only the most notorious politicians\xe2\x80\x94such as\npresidents, presidential candidates, or high-profile individuals\xe2\x80\x94move views of the Court? Or\ncan lower-profile individuals\xe2\x80\x94such as governors, representatives, or members of the\nmedia\xe2\x80\x94influence the public? Finally, consider the role of affect and partisanship for these\nlower-profile figures; do one\xe2\x80\x99s feelings toward the figure matter more or less as they\ndecrease in notoriety?\n\n688 | Influence of Politicians\n\n\x0c28. Experimentally Measuring\nResponsiveness to Criticisms of the US\nSupreme Court as Antidemocratic\nKYLE J. MORGAN\n\nIn roughly the last ten years, the Supreme Court of the United States has handed down decisions\non some of the most controversial social and political questions of the day: from gay marriage\nand gun control to abortion and affirmative action. Furthermore, in recent years the Court has\nnot been a consistent friend nor foe to either the right or left, making decisions each term\nthat both sides alternately praise or condemn. It is therefore surprising that according to public\nopinion surveys the US Supreme Court has consistently been rated as the most trusted branch\nof government. The Supreme Court in this regard is interesting, with the decisions that it hands\ndown appearing not to affect the Court\xe2\x80\x99s core public support.\nWhen talking about the Court, support takes on two different meanings. First there is specific\nsupport or agreement with the current behavior of the Court and its decisions. This specific\nsupport has been found to mirror the level of agreement or disagreement with recent Court\ndecisions, but it is also fleeting and has been found to be disconnected from the broader support\nfor the Court as an institution (Gibson and Nelson 2014, 2015; but see Bartels and Johnston 2013).\nOf more interest is the second kind of support, the Court\xe2\x80\x99s diffuse support or legitimacy, which\nhas been defined as \xe2\x80\x9ca psychological property of an authority, institution, or social arrangement\nthat leads those connected to it to believe that it is appropriate, proper, and just\xe2\x80\x9d (Tyler 2006,\n357). When speaking about the Court, this has been conceptualized as \xe2\x80\x9cinstitutional loyalty\xe2\x80\x9d or\na resistance to making fundamental changes to the way in which an institution operates or\n1\n\nfunctions (Gibson et al. 2003a).\n\nSince the Court\xe2\x80\x99s decisions do not appear to influence its legitimacy in the eyes of the public,\nwhere does this legitimacy come from? Gibson (2007) argues that the Court\xe2\x80\x99s legitimacy stems\nfrom a belief in core democratic values and beliefs as well as exposure to symbols and messages\nthat present the Court as \xe2\x80\x9cdifferent\xe2\x80\x9d from normal politics. However, there has also been\nconsiderable hand-wringing over the concern that the Supreme Court and its power of judicial\n\n1. Note: throughout this chapter unless otherwise specified, when referring to support or approval of\nthe Court, this is referring to the Court\xe2\x80\x99s legitimacy. This is done simply to aid with the flow and\nreadability of the paper.\nExperimentally Measuring Responsiveness to Criticisms | 689\n\n\x0creview are potentially antidemocratic; this is often called the \xe2\x80\x9ccountermajoritarian difficulty.\xe2\x80\x9d\nThis project uses an experiment to explore the potential for public attitudes toward the Court\nto be influenced by messages highlighting the Court\xe2\x80\x99s potentially antidemocratic behavior and\nfunctions.\nWhile this is an exploratory study, it does provide critical new insights into several scholarly\nquestions. First and foremost, this provides empirical evidence to advance the scholarly debate\nover whether judicial review is compatible with a democratic system of government. There has\nbeen limited scholarly attention to what those who are potentially thwarted by judicial review\nthink about this countermajoritarian difficulty. If we want to further the discussion over judicial\nreview\xe2\x80\x99s democratic credentials, we should be aware of what the public thinks.\nSecond, there has been a robust scholarly debate over judicial legitimacy, with much of the\nresearch finding that the Court\xe2\x80\x99s legitimacy is not impacted by specific decisions. This project\ntakes this analysis in a new direction and explores the extent to which the public\xe2\x80\x99s perceptions\nof the Court\xe2\x80\x99s legitimacy can be influenced by the language used by elected officials when they\ndiscuss the Court. The language used in the experiment differs from previous studies that have\nfocused on specific decisions and instead uses criticisms that raise more fundamental concerns\nabout the role of the Court.\nThe study will proceed as follows: First, I provide an overview of the existing literature around\njudicial legitimacy and public attitudes toward the Court more generally. I also provide a brief\noverview of the debates around the compatibility of judicial review with democracy, and how this\nrelates to the discussion of the Court\xe2\x80\x99s legitimacy. Next, I introduce the methodology and discuss\nthe specifics of the experimental design. This is followed by the analysis, and last, I conclude by\nsituating these results into the larger literature around judicial legitimacy and offering suggestions\nfor future research and consideration.\n\nJudicial Support, Legitimacy, and Public Opinion\nUsing a variety of public opinion surveys, Gibson and his coauthors have found little evidence\nthat disagreement with specific policies or decisions, also known as specific support, influences\nattitudes toward the Court\xe2\x80\x99s legitimacy, also known as its diffuse support. The finding, that there\nis a disconnect between specific and diffuse support, seems surprising as we would expect voters\n\n690 | Experimentally Measuring Responsiveness to Criticisms\n\n\x0c2\n\nto evaluate the Court based on the decisions it hands down. If that is not the case, then the next\nlogical question is why.\nGibson and Calderia (2009) proposed the \xe2\x80\x9cpositivity bias\xe2\x80\x9d as an explanation of why the Court\nretains public support in the wake of decisions that voters may disagree with. They argue that\nthrough exposure to the Court\xe2\x80\x94for example, when watching coverage of a recent decision\xe2\x80\x94voters\nare exposed to \xe2\x80\x9csymbols of judicial legitimacy.\xe2\x80\x9d These symbols include the robes, bench, and\nthe imposing marble \xe2\x80\x9ctemple\xe2\x80\x9d that is home to the Supreme Court, all of which help to retain\npublic support for the Court by highlighting the idea that the Court is different from regular\npolitics (Gibson et al. 2014). Further, there is an existing set of ideas that come from early political\n3\n\nsocialization that help to reinforce judicial legitimacy (Gibson and Caldeira 2009). These symbols\nand early political socialization together help to generate what has been referred to as a \xe2\x80\x9creservoir\nof good will.\xe2\x80\x9d Gibson and Caldeira argue that this reservoir is what allows the Court to survive the\npotential backlash that may come from unpopular decisions. Further, exposure to these symbols\ncan also refill the reservoir of good will by reminding those exposed that the Court is legitimate\nand \xe2\x80\x9cdifferent\xe2\x80\x9d from regular politics.\nOne of the most dramatic examples of this concept would be the 2000 election and the Supreme\nCourt\xe2\x80\x99s decision in Bush v. Gore. For those too young to remember, on election night 2000 the\noutcome of the election hinged upon Florida. The winner of the state, which was too close to call\nat the time, would receive the state\xe2\x80\x99s 25 electoral votes, pushing them above the 270 electoral\nvote requirement and securing the election for either George W. Bush or Albert Gore. However,\nthe margin separating the two candidates in Florida was so close that it triggered a mandatory\nrecount. During this recount, the issue emerged of how to count so-called hanging chads. At the\ntime, paper ballots in Florida used a punch system where a stylus was used to poke out a small\ncircle of paper that was slightly perforated. If one didn\xe2\x80\x99t punch out the circle completely, the\ncircle of paper or \xe2\x80\x9cchad\xe2\x80\x9d would remain attached. The debate centered on what to do about a chad\n4\n\nthat was still attached by one or two perforations (aka hanging). Various Florida counties were\nmaking different decisions on how to count these votes and there were concerns that the votes\nwere not being counted fairly or equally across the state. These concerns lead to multiple lawsuits\nchallenging the vote-counting procedures. After rulings by the State Circuit Court and the Florida\nSupreme Court, one of these cases made its way to the US Supreme Court.\n\n2. The idea being that among other things, Congress and the presidency are evaluated based on what\nthey have done. It is surprising that the Court is not evaluated in the same way.\n3. Early political socialization includes things like our primary school education and the messages\nreceived from parents or guardians.\n4. There were also pregnant chads where the chad was concave due to some pressure, but the\nperforations were not broken.\nExperimentally Measuring Responsiveness to Criticisms | 691\n\n\x0cThe Court, by a 5\xe2\x80\x934 margin, ruled that the state should stop its recount, and in effect awarded the\nstate of Florida, and by extension the Presidency, to George W. Bush. This 5\xe2\x80\x934 decision, where the\nfive Republican-appointed justices ruled for the Republican presidential candidate, was criticized\nby many, but as Gibson, Caldeira, and Spence (2003a) show, disapproval of the decision had little if\nany impact on the Court\xe2\x80\x99s perceived legitimacy. This raises the question again of what might shape\nthe Court\xe2\x80\x99s legitimacy. If an arguably partisan decision where the Court, in effect, awarded the\npresidency to the candidate who lost the popular vote (Law 2019; Mann 2001) does not influence\nthe Court\xe2\x80\x99s legitimacy, what does?\nWhile there is considerable evidence that the Court has a sizeable reservoir of good will, \xe2\x80\x9cthat\nreservoir is far from bottomless\xe2\x80\x9d (Gibson and Nelson 2014, 205). Bartels and Johnston (2013) find\n5\n\nthat when subjects place themselves on the standard five-point ideological spectrum and then\nplace the Court on the same spectrum, those with the highest level of ideological disagreement\n6\n\nbetween where they placed themselves and where they placed the Supreme Court view the\nCourt as less legitimate. Furthermore, Bartels and Johnston (2012) also find that much of the\npublic views the Court as a political institution. While this may not be surprising to some, it is\nnonetheless significant in terms of understanding how the public thinks about the Supreme Court.\nNicholson and Hansford (2014) as well as Christenson and Glick (2014) find that among the public\nthis perception of the Court and its decisions as political rather than legal has an impact on both\nthe acceptance of decisions and the Court\xe2\x80\x99s overall legitimacy. Taken together, these results and\nothers suggest that the way the Court is talked about, or framed, matters for how the public\nconceptualizes and, in turn, evaluates the Court.\n\nFraming the Court\n\xe2\x80\x9cFraming is the process by which respondents develop a conceptualization of an issue or reorient\ntheir thinking about an issue based on what considerations are brought to mind.\xe2\x80\xa6 A\nframe\xe2\x80\x94whether captured by a single word within the question or by multiple words or\nphrases\xe2\x80\x94acts as an interpretive lens, provoking a different set of considerations depending on the\n\n5. Very liberal, liberal, moderate (or \xe2\x80\x9ccase by case basis\xe2\x80\x9d when discussing the Court), conservative, or\nvery conservative.\n6. For example, a subject who identified as very conservative and identified the Court as very\nconservative would have zero ideological disagreement, while someone who identified as a\nmoderate or independent and said the Court was very conservative would have a disagreement level\nof two.\n692 | Experimentally Measuring Responsiveness to Criticisms\n\n\x0cperspective it portrays\xe2\x80\x9d (Koning 2020, 17). The idea that the way the Court is discussed and what\nrelated themes are made salient, or how the Court is framed, matters is obvious.\nCompared to other institutions, the Court practically invites framing of it and its decisions by\nother political actors. The Supreme Court is passive and opaque. While other political actors seek\nout questions and controversies, the Court involves itself only in issues that are brought before it,\n7\n\nand even then it selects only a small fraction of those. If Congress is debating salient legislation\nthere is no end to the soundbites and media appearances of elected officials; they are on every\nscreen and in every speaker, spinning the debate and the legislation. Compare that to the Supreme\nCourt at the end of every term. Not only do the justices not appear on the nightly news to discuss\n8\n\nthe decisions, but the decisions are written in a language most voters do not understand, and\n9\n\narguably few even within the legal community read in their entirety (Chemerinsky 2015). As a\nresult, the decisions and behavior of the Court require translation and communication to the\npublic. Never ones to miss an opportunity, political elites use these moments to spin and frame the\nCourt and its decisions (Morgan and Peabody 2014; Peabody and Morgan 2013). It is in this framing\nthat we can see how the public\xe2\x80\x99s perceptions of the Supreme Court may be shaped.\n10\n\nBuilding on the vast framing literature,\n\nseveral scholars have found significant framing effects\n\naround the Court. For example, Baird and Gangl (2006) find experimental evidence that when\na Court decision is framed as political, rather than legal, subjects evaluate the Court and its\ndecision more negatively. Zilis (2015) finds first that the presence of dissenting opinions leads to\nan increase in the media coverage framing the decision as a conflict or fight. Second, he finds\nexperimental evidence that when the Court\xe2\x80\x99s decisions are framed as such, there is a negative\n11\n\nimpact on evaluations of the decision, which has the potential to harm the Court\xe2\x80\x99s legitimacy.\n\nThe Supreme Court and Judicial Review in American\n7. Of the thousands of cases that apply for certiorari, the Court only hears roughly one hundred each\nterm, giving it an acceptance rate of around 1 percent (About the Supreme Court, n.d.).\n8. While media appearances of Justices may be increasing (Hasen 2016), it is undeniable that Justices\ndiffer from elected officials in their conduct and statements during these appearances.\n9. Famously in 2012, CNN and Fox News both misread the National Federation of Independent\nBusinesses v. Sebelius decision and, incorrectly, announced that the Court had struck down the\nindividual mandate in the Affordable Care Act (Seltzer 2012).\n10. See Chong and Druckman (2007) for a thorough review of this literature.\n11. Also see Nicholson and Howard (2003) who find that under some circumstances, like highlighting\nthe consequences of a decision, the framing of a Supreme Court decision can harm the Court\xe2\x80\x99s\nlegitimacy.\nExperimentally Measuring Responsiveness to Criticisms | 693\n\n\x0cDemocracy\nWhile the public, overall, appears to be quite supportive of the Supreme Court, there are some\nwho raise questions concerning the compatibility of the Court with democracy. This debate\noften hinges upon the Supreme Court\xe2\x80\x99s power of judicial review.\n13\n\n\xe2\x80\x9cthe countermajoritarian difficulty\xe2\x80\x9d\n\n12\n\nBickel (1962) coins the term\n\nto summarize this concern: that the unelected and largely\n\nunaccountable Supreme Court uses its power of judicial review to invalidate legislation which\ncan potentially undermine the preferences of the majority. The counter-majoritarian difficulty has\nbecome what some call the \xe2\x80\x9ccentral obsession\xe2\x80\x9d of constitutional scholars (Friedman 2002). While\nthe nuances of this debate are beyond the scope of this chapter, there are some important aspects\nof this debate that need to be explored so as to provide a basis for the experiment to come.\nThe first question is, Does the Court in fact behave in a counter-majoritarian fashion? It makes\nsense to see if in fact the concerns about the Court invalidating the will of \xe2\x80\x9cthe people\xe2\x80\x9d has an\nempirical basis. Dahl\xe2\x80\x99s (1957) analysis showed that rather than the Supreme Court overruling the\nnational majority or elected officials, more often than not it was frequently in line with both.\nIn turn, this led Dahl to conclude that \xe2\x80\x9cthe Supreme Court is inevitably part of the dominant\nnational alliance\xe2\x80\x9d (1957, 293). While Dahl found that at the national level the Supreme Court did\nnot invalidate the preferences of Congress, Casper (1976), by expanding Dahl\xe2\x80\x99s methodology and\nscope to include state and local laws being overturned by the Supreme Court, found that the Court\n14\n\ndid in fact behave in a counter-majoritarian fashion. More recently, Kastellec (2017) complicated\nthis debate. Specifically, he analyzes the legalization of marriage equality after the 2015 decision\n15\n\nin Obergefell v. Hodges\n\nand finds that by striking down some state-level bans, the Court was\n\nbehaving in a \xe2\x80\x9cpromajoritarian\xe2\x80\x9d fashion by bringing policy more in line with majority opinion which\nfavored marriage equality. However, that same decision in other states was \xe2\x80\x9ccounter-majoritarian\xe2\x80\x9d\n16\n\nwhere a majority of voters in those states did not support marriage equality.\n\n12. A power given to the Supreme Court by the Supreme Court in Marbury v. Madison (1803).\n13. Also sometimes called the countermajoritarian dilemma.\n14. Important as well is that in addition to including a broader scope of cases which could even be\nconsidered countermajoritarian, Casper (1976) included the Warren Court and by extension the civil\nrights era, when the Court heard many cases challenging discriminatory state and local laws.\n15. 576 U.S. 644.\n16. Also see Hoekstra (2000) on local public opinion and Supreme Court decisions. Again, the concern\nabout judicial review is that by overturning the decisions of a legislature the Court is acting against\nthe will of the public and thus the Court is acting antidemocratically. This requires accepting the\nassumption that by overturning legislative decisions the Court is by extension overturning the\npublic\xe2\x80\x99s will. For a number of reasons such as race (Butler and Broockman 2011; Minta and Sinclair694 | Experimentally Measuring Responsiveness to Criticisms\n\n\x0cPersily, Citrin, and Egan (2008) take a variety of policy questions and look at the longitudinal trend\nof Supreme Court decisions and related public opinion. While on some issues, such as school\ndesegregation, public opinion has moved more in line with the Court\xe2\x80\x99s decision, on other issues\nlike flag burning and school prayer \xe2\x80\x9cstrong majorities continue to support a position contrary to\n17\n\nthat of the Court\xe2\x80\x9d (Persily et al. 2008, 12). Mishler and Sheehan (1993) similarly find a long history\nof the Court tending to be in line with the long-term trends in public opinion, but in more recent\n18\n\nyears the Court has remained to the right of where the public has been.\n\n(See also the Johnson\n\nand Strother chapter in this volume.) Thus in answering the question of whether the Court is a\ncountermajoritarian institution, the evidence suggests that it can be at times. However, the extent\nthat voters are troubled by this remains an open question.\nWhat do those who are potentially \xe2\x80\x9ccountered\xe2\x80\x9d by the Supreme Court\xe2\x80\x99s use of judicial review\nthink about the role of the Court? While scholars may have debated and studied these issues for\ndecades, we know surprisingly little about what regular voters think of these different debates\nand concerns (see Bickel 1962; Ely 1980; and even Federalist, no. 78). By better understanding the\npublic\xe2\x80\x99s attitudes toward judicial review\xe2\x80\x94a public whose preferences are potentially thwarted by\nthe Court\xe2\x80\x99s use of it\xe2\x80\x94we can further refine our understanding of public attitudes toward the\njudiciary. Also, we can improve our normative conceptions of how the Supreme Court and judicial\nreview should, or should not, fit into our political system. If, potentially, the public is ambivalent or\neven welcoming of judicial review, this has the potential to alter how we view the concerns around\nthe counter-majoritarian dilemma.\n\nMethods\nIn order to investigate these questions surrounding public opinion and judicial legitimacy, I fielded\na survey experiment that employs vignettes regarding the Court (May 28 through June 2, 2019)\n\nChapman 2012; Tate 2003), gender (Carroll 2003; Ditmar et al. 2018; Rosenthal 1998), or class (L. M.\nBartels 2008; Domhoff 2006; Schattschneider 1960), we should be skeptical at best of the idea that\nthe decisions and preferences of the elected branches represent the will of their constituents or\nvoters more broadly.\n17. Also see Franklin and Kosaki (1989) who studied the Court\xe2\x80\x99s decision in Roe v. Wade and found that\non one hand the decision increased support for abortions broadly while also increasing the\npolarization toward \xe2\x80\x9cdiscretionary\xe2\x80\x9d abortions.\n18. But see Bartels and Johnston (2013), who argue the Court has moved somewhat to the left.\nExperimentally Measuring Responsiveness to Criticisms | 695\n\n\x0c19\n\nand uses a nonprobability convenience sample.\n\nAs seen in table 1 below, though this sample is\n\nnot nationally representative, it does compare well to national demographics and the American\nNational Elections Survey (ANES), a nationally representative survey fielded biannually.\nPercent of sample US Census* ANES**\nGender\n\n--\n\nMale\n\n47.4\n\nFemale\n\n52.4\n\nOther\n\n.2\n\nRace\n\n--\n\n--\n\n--\n\nNon-white\n\n39\n\n39.3\n\n28\n\nWhite (non-Hisp.) 61\n\n60.7\n\n71\n\nAge\n\n--\n\n--\n\n--\n\n18-24\n\n11.9\n\n9\n\n7.6\n\n25-34\n\n19\n\n14\n\n16.6\n\n35-49\n\n26.5\n\n19\n\n23.3\n\n50-64\n\n27.1\n\n19\n\n27.3\n\n65+\n\n15.5\n\n16\n\n22.3\n\nParty ID\n\n--\n\nRep\n\n37\n\nInd.\n\n17.2\n\nDem\n\n45.8\n\n45.4\n\nIdeology\n\n--\n\n--\n\nLib\n\n28.7\n\nCon\n\n35.1\n\nIn btwn.\n\n36.3\n\n-49.2\n50.8\n\n-46\n52\n.2\n\n-***\n\n--\n\n--\n\n40.53\n13.5\n\n24.1\n32.2\n****\n\n20.94\n\nTable 1: Demographic characteristics of the experiment sample compared to US Census and 2016 American National\nElection Time Series\n\n19. Convenience samples are not intended to be nationally representative, they are drawn from\nindividuals recruited into a pool of subjects, rather than being drawn at random from the population\nat large. However, in the experimental literature, the use of a convenience sample is common and\nwell regarded (Clifford and Jerit 2014; Mullinix et al. 2015).\n696 | Experimentally Measuring Responsiveness to Criticisms\n\n\x0c*\n\nGender\n\nand\n\nrace:\n\nhttps://www.census.gov/quickfacts/fact/table/US/PST045218;\n\nAge:\n\nhttps://factfinder.census.gov/faces/tableservices/jsf/pages/\nproductview.xhtml?pid=PEP_2017_PEPSYASEXN&prodType=table.Note:age percentages here do not include 0\xe2\x80\x9317.\n** ANES 2016 time series.\n*** Collapsed version of ANES 7-point party identification question.\n**** Collapsed version of ANES 7-point ideology question.\n\nIn the study of courts and judicial legitimacy, I follow in a long line of experimental work, dating\n20\n\nback almost twenty years (B. L. Bartels 2014).\n\nSpecifically, the use of vignettes as part of the\n\nexperimental design, as used here, is common in the judicial legitimacy literature (Baird and Gangl\n2006; Christenson and Glick 2014; Zilis 2015). Vignettes as a design involve presenting subjects\nwith one or more passages of text to read and then measuring their response after reading the\ntext(s). Vignettes can be thought of as the \xe2\x80\x9ctreatment\xe2\x80\x9d; by exposing (or treating) the subjects with\ndifferent vignettes, we can compare our dependent variables based on the different treatment\ngroups. For example, an experiment may present a vignette discussing a policy proposal, but\nhalf the subjects are randomly assigned a treatment where they are told the policy proposal\nis coming from a Congresswoman while the second half is randomly assigned to a treatment\nwhere the same proposal is attributed to a Congressman. After reading the passage you then\nmeasure agreement with the passage and see if, for example, there is a difference between those\nin the Congresswoman treatment and those in the Congressman treatment. If the only difference\nbetween the treatment vignettes is the gender of the person presenting the proposal, and we\ndetect a difference between the groups, we can say that the gender cue influenced how subjects\nevaluated the passage.\nPolitical Countermajoritarian Democratic process\nDemocrat\nRepublican\nBipartisan\nTable 2: Experimental design\n\nThis experiment used a 3 \xc3\x97 3 design (see table 2), where 1,004 subjects were randomly assigned\nto one of nine treatments where they read a passage from either a Republican, Democratic, or\nbipartisan group of Senators and members of the House criticizing the judiciary in one of three\ndifferent ways.\n\n20. For example, see Mondak (1992); Gibson, Caldeira, and Spence (2003b); Gibson, Lodge, and Woodson\n(2014); and Bartels and Johnston (2013).\nExperimentally Measuring Responsiveness to Criticisms | 697\n\n\x0cUsing the language found in an analysis of congressional press releases as a guide (Morgan 2020),\nI crafted three different criticism types that reflect three different ways of criticizing the Court;\npolitical, countermajoritarian, or democratic process. For the \xe2\x80\x9cpolitical\xe2\x80\x9d criticisms, the main idea\nhere is simply that the Court is making \xe2\x80\x9cbad\xe2\x80\x9d decisions, not interpreting the Constitution correctly,\nand the vignette, overall, attacks the decision-making process.\nPolitical frame:\nIn a recent speech, [a bipartisan group of Senators and members of the House of\nRepresentatives / a group of Republican Senators and members of the House of\nRepresentatives / a group of Democratic Senators and members of the House of\nRepresentatives] discussed the role of the Supreme Court. The [bipartisan group of\nSenators and members of the House of Representatives / group of Republican Senators\nand members of the House of Representatives / group of Democratic Senators and\nmembers of the House of Representatives] criticized the Court saying that; \xe2\x80\x9cThe Supreme\nCourt continues to make the wrong decisions. This is not about ideological disagreement,\ninstead the Court simply continues to read and apply the constitution incorrectly. Instead\nof making decisions based on the text of the constitution and legal precedent the Justices\nmake decisions based on their own political preferences. We are deeply concerned about\nthe future of our country if we continue to allow the Supreme Court to substitute the\npolitical ideology of the justices for sound legal reasoning. As a nation founded on\nConstitutional principles and the rule of law, we urge all Americans to question why we\nallow the Supreme Court to continue to undermine that.\xe2\x80\x9d\nThe \xe2\x80\x9ccountermajoritarian\xe2\x80\x9d criticisms focus on the idea that the Court\xe2\x80\x99s decisions are thwarting\nthe will of the people and/or voters. Finally, the \xe2\x80\x9cdemocratic process\xe2\x80\x9d criticisms present the idea\nthat the Court\xe2\x80\x99s decisions are harming access to and participation in the democratic process. This\nline of criticism draws upon the work of Ely (1980), but rather than viewing judicial review as\njustifiable when it defends democracy and democratic participation, it turns this into a criticism\nby attacking the Court for undermining those concepts. Additionally, while previous studies have\nanalyzed the harm that disagreeable decisions may or may not have on support for the Court,\nthe democratic process and countermajoritarian criticisms offer something new by shifting the\nfocus from a disagreeable decision to attacking the Court as incompatible, or inconsistent, with\ndemocracy.\nCountermajoritarian frame:\nIn a recent speech, [a bipartisan group of Senators and members of the House of\nRepresentatives / a group of Republican Senators and members of the House of\nRepresentatives / a group of Democratic Senators and members of the House of\nRepresentatives] discussed the role of the Supreme Court. The [bipartisan group of\n698 | Experimentally Measuring Responsiveness to Criticisms\n\n\x0cSenators and members of the House of Representatives / group of Republican Senators\nand members of the House of Representatives / group of Democratic Senators and\nmembers of the House of Representatives] criticized the Court saying that; \xe2\x80\x9cThe Supreme\nCourt continues to make decisions that are opposed to the wishes of voters. In a\ndemocracy it should not be allowed that nine unelected, and unaccountable, judges are\nable to make decisions that contradict the will of the people. It should be through the\npolitical process, where voters decide what is best for them, and in turn elect\nrepresentatives to carry out those wishes. We, the elected representatives, and the voters\nshould resolve these issues, and not turn that over to judges to make those decisions\nbehind closed doors. The Supreme Court is not only making the wrong decisions, but by\nignoring and invalidating the will of the people, it is undermining our democratic form of\ngovernment.\xe2\x80\x9d\nDemocratic process frame:\nIn a recent speech, [a bipartisan group of Senators and members of the House of\nRepresentatives / a group of Republican Senators and members of the House of\nRepresentatives / a group of Democratic Senators and members of the House of\nRepresentatives] discussed the role of the Supreme Court. The [bipartisan group of\nSenators and members of the House of Representatives / group of Republican Senators\nand members of the House of Representatives / group of Democratic Senators and\nmembers of the House of Representatives] criticized the Court saying that; \xe2\x80\x9cThe Supreme\nCourt continues to make decisions that weaken the ability of the voters to have a voice\nin government and politics. All voters should be troubled by a Court that allows special\ninterests to drown out the voice of voters. In a democracy it should be the voters, not\nspecial interests, who elected officials pay attention to. The Supreme Court should be\nmaking decisions that encourage voting and participation in our political process, instead\nit continues to rule against these core democratic values. We should encourage all citizens\nto have a voice and to exercise their right to vote, but the Supreme Court appears opposed\n21\n\nto allowing voters to exercise these most fundamental rights.\xe2\x80\x9d\n\nTo make the criticisms believable, the language of the criticisms is negative, but generic enough so\nthat it could be reasonably be attributed to any of the sources. This means that the criticisms do\nnot mention specific decisions or ideological positions. For example, it would be hard to believe a\ncriticism of the Citizens United\n\n22\n\n(2010) decision or the Court being too conservative would come\n\n21. Introductions to each passage and the text of the source cues come from experimental\nmanipulations used by Gibson and Nelson (n.d.)\n22. 558 U.S. 310.\nExperimentally Measuring Responsiveness to Criticisms | 699\n\n\x0cfrom a Republican or that a criticism of Obergefell or the Court being too liberal would come from\na Democrat.\nAfter reading the passage, subjects are then given two sets of questions that serve as the\ndependent variables in analysis. In the first set, subjects are asked about their agreement with the\nstatement itself, how strong they felt the argument was, a measure of hypothetical willingness\nto donate to a candidate or group advocating for what the passage discussed, and how credible\nthose quoted were. These variables represent a basic reaction to the passage or, in the case of\nwillingness to donate, a different way to conceptualize agreement with the passage. If we are to\nuncover evidence that the frames had an effect, we should find evidence of that here. These items\nalso allow us to see how voters view these different messages. Since the public views the Court\nhighly, we first need to see if they are even open to messages calling into question the very role of\nthe Court. If voters do not reject these criticisms, we can then take this analysis one step further\nand see what influence they have on evaluations of judicial legitimacy.\nThe second set of dependent variables, listed below, consists of standard measures of judicial\n23\n\nlegitimacy developed by Gibson and Nelson (2014).\n\nSubjects were asked the following questions\n\nat the beginning of the survey and then again after receiving the treatment, which allowed me to\nmeasure any potential change between the initial attitudes and those after the treatment. Finding\nan effect here would offer important new information to the debate over judicial legitimacy.\n1. \xe2\x80\x9cIt is inevitable that the US Supreme Court gets mixed up in politics; therefore we\nought to have a stronger means of controlling the actions of the US Supreme Court.\xe2\x80\x9d\n2. \xe2\x80\x9cThe US Supreme Court ought to be made less independent so it listens a lot more to\nwhat the people want.\xe2\x80\x9d\n3. \xe2\x80\x9cJudges on the US Supreme Court who consistently make decisions at odds with what\na majority of the people want should be removed from their position as judges.\xe2\x80\x9d\n4. \xe2\x80\x9cIf the US Supreme Court started making a lot of decisions that most people disagree\nwith, it might be better to do away with the Supreme Court altogether.\xe2\x80\x9d\n5. \xe2\x80\x9cThe right of the Supreme Court to decide certain types of controversial issues should\nbe reduced.\xe2\x80\x9d\n6. \xe2\x80\x9cThe US Supreme Court gets too mixed up in politics.\xe2\x80\x9d\n\n23. Note, these items are based on a scale originally developed by Gibson, Caldeira and Spence (2003a).\nAdditionally, they also produce a highly reliable scale with a Cronbach Alpha of .866.\n700 | Experimentally Measuring Responsiveness to Criticisms\n\n\x0cThe experiment also ensured that subjects paid attention through two manipulation checks.\nSubjects were asked \xe2\x80\x9cwho was quoted in the article you just read\xe2\x80\x9d and \xe2\x80\x9cTrue or false, the passage\nyou just read praised the Supreme Court.\xe2\x80\x9d Seventy-nine percent of the subjects got both\nmanipulation checks correct. Manipulation checks allow us to ensure a subject was paying\nattention and properly perceived the treatment. The analysis below uses only those subjects who\ncorrectly answered at least one of the manipulation checks.\n\nHypotheses\nI am interested in public attitudes toward the three criticism frames\xe2\x80\x94countermajoritarian,\ndemocratic process, and political\xe2\x80\x94and further, if they present a threat to judicial legitimacy.\nHowever, given ample evidence around the influence of partisanship on voters\xe2\x80\x99 attitudes, and\nthat the partisan source cue was manipulated in the experiment, I propose the following initial\nhypothesis.\n\nH1: Subjects will respond to the partisanship, or source cue, of the passage rather than the type of criticism\nused.\n\nBased on existing research on framing and partisanship in regard to support for the Supreme\nCourt (Clark and Kastellec 2015), and the current level of hyperpartisanship among the American\nelectorate (Mason 2018), I expect that subjects will respond more favorably to a criticism that\nis from their copartisans, regardless of the frame used. Therefore, even though analysis of\ncongressional language found differences between how Democratic and Republican legislators\ndiscussed the Court (Morgan 2020), as with much of today\xe2\x80\x99s politics, I expect that partisanship will\nbe a driving factor here.\nHowever, even if partisanship is a significant force, we can look within the partisanship\nmanipulations, in effect controlling for the influence of partisanship, to explore the\nresponsiveness to the different frames. Based on the language used by legislators in press releases,\nDemocratic legislators overwhelmingly preferred democratic process language while the\nRepublican peers preferred countermajoritarian language (Morgan 2020). Therefore, I expect that\nsubjects, when presented with a copartisan source\xe2\x80\x94for example, a Republican getting a message\nfrom a fellow Republican\xe2\x80\x94will evaluate statements that are consistent with how their party\n\nExperimentally Measuring Responsiveness to Criticisms | 701\n\n\x0cdiscussed the Court more positively compared to those framed in the opposite ways. This leads\nme then to the following two hypotheses:\n\nH2a: Self-identified Democratic subjects, when presented with a Democratic source cue, will agree more\nwith a democratic process frame, compared to counter-majoritarian framing. They will also evaluate\nDemocrats using the democratic process frame as more credible than those using a countermajoritarian\nframe.\n\nH2b: Self-identified Republican subjects, when presented with a Republican source cue, will agree more\nwith a counter-majoritarian frame, compared to a democratic process framing. They will also evaluate\nRepublicans using the countermajoritarian frame as more credible than those using the democratic process\nframe.\n\nI am also interested in how these types of criticisms affect judicial legitimacy. Scholars have\ngrappled with the Court\xe2\x80\x99s democratic credentials as a theoretical issue for decades, but there has\nbeen little systematic analysis of the extent to which the public is responsive and/or concerned\nabout these issues.\n\n24\n\nTherefore, I propose two hypotheses based on the experimental\n\nmanipulations:\n\nH3a: Subjects, presented with a copartisan source cue, who are exposed to either a democratic process or\ncountermajoritarian criticism, will have a lower evaluation of the Court\xe2\x80\x99s legitimacy, compared to those\nexposed to political criticisms.\n\nH3b: Subjects who are presented with a counterpartisan source cue and a democratic process or\ncountermajoritarian frame, will increase their evaluations of the Court\xe2\x80\x99s legitimacy.\n\n24. But see Morgan and Young (2019).\n702 | Experimentally Measuring Responsiveness to Criticisms\n\n\x0cThe logic here is that attacks on the democratic compatibility of the Court will harm the Court\xe2\x80\x99s\nlegitimacy only when that attack comes from a copartisan. Alternatively, H3b is what I am calling\nthe \xe2\x80\x9croughing the ref hypothesis.\xe2\x80\x9d When the more substantial criticisms come from a\ncounterpartisan, I expect there to be a backlash in which partisans react to the other party\xe2\x80\x99s attack\nby coming to a defense of the Court\xe2\x80\x99s legitimacy.\n\nAnalysis\nH1 claims that subjects will respond to the source cue of the criticism, rather than the frame\nused. Since \xe2\x80\x9cpartisanship is a hell of a drug,\xe2\x80\x9d the expectation is that subjects\xe2\x80\x99 first reaction to\nthe statements will be contingent on the partisanship of the source cue. This does not mean\nthat the message does not matter; rather, that I expect the criticism frame to come into play\nwhen the message comes from a copartisan source. For this analysis then I have run several twoway between-subjects analysis of variance tests (ANOVAs), which test if the difference between\nindependent groups is statistically significant for Democrats and Republicans separately looking\nat the effects of the source cue and criticism frame on the four dependent variables.\nFor Democrats, there is a statistically significant effect for the source cue and the criticism\nframe when it comes to their level of agreement with the passage.\n\n25\n\nThe Tukey HSD post hoc\n\ntest showed statistically significant differences between the Republican source cue and the\nDemocratic (p = .001) and bipartisan (p = .001) source cues (see figure 1 below), as shown in\nfigure 1 below, where the bars for Democratic and bipartisan groups do not overlap with the\nRepublican line. There was no statistically significant difference between the Democratic and\nbipartisan source cues (p = .997), shown in the figure below where these two bars overlap.\n\n25. Source cue (F(2,344) = 7.708, p = .001 n2 = .042). Criticism frame (F(2,344) = 3.219, p = .041 n2 = .017).\nExperimentally Measuring Responsiveness to Criticisms | 703\n\n\x0cFigure 1\n\nFor the criticism frames, Democrats agreed more with the democratic process frame compared\nto the countermajoritarian frame by .199 (p = .02). The post hoc analysis did not show any other\ncomparisons between the frames as statistically significant.\nWhen we look at how likely Democrats would be to donate, we see a statistically significant\ndifference based on the source cue,\n\n26\n\nbut not for the criticism type. The Tukey HSD post hoc test\n\nshowed that in terms of donating, the statistically significant difference, as seen in figure 2 below,\nwas between the Democratic and Republican source cues (p = .019). The other comparisons were\nnot statistically significant. Similarly, when it comes to evaluation of the passage\xe2\x80\x99s strength, there\nis a similar statistically significant difference based on the source cue,\nframe.\n\n26. F(2,344) = 4.084, p = .018 n2 = .023.\n27. F(2,344) = 3.141, p = .044 n2 = .018.\n704 | Experimentally Measuring Responsiveness to Criticisms\n\n27\n\nbut not for the criticism\n\n\x0cFigure 2\n\nFinally, for the credibility afforded to those quoted in the passage, among Democrats I find another\nstatistically significant difference based on the source cue,\n\n28\n\nbut not for the criticism frame. The\n\npost hoc analysis showed that Republican passages had a mean evaluation .113 less than those\nattributed to only Democrats (p = .006), and .122 less than those attributed to both Democrats and\nRepublicans in the bipartisan treatment (p = .002).\n\n28. (F(2,344) = 6.712, p = .001 n2 = .037).\nExperimentally Measuring Responsiveness to Criticisms | 705\n\n\x0cFigure 3\n\nMoving now to Republicans, I find an even stronger effect of partisanship in terms of their level\nof agreement with the passage. The difference between evaluations was statistically significant\nbased on the source cue,\n\n29\n\nbut not for the different criticism types (p = .055). The Tukey HSD post\n\nhoc test showed that Republican subjects evaluated passages attributed to Democrats compared\nrd\n\nto those from Republicans worse by .344, or roughly 1/3\ncomparisons were not statistically significant.\n\n29. (F(2,288) = 7.744), p = .001 n2 = .049).\n706 | Experimentally Measuring Responsiveness to Criticisms\n\nof the scale (p < .001). The other\n\n\x0cFigure 4\n\nWhen we move to Republican\xe2\x80\x99s likelihood of donating, the model Levene\xe2\x80\x99s Test was statistically\nsignificant (>.05), violating the assumption of homogeneity of variance. Since this is the case, I\nproceed with some level of caution and will look for a significance level of < .01, rather than\nthe normal < .05 level. Even with this higher bar, I find that there is a statistically significant\n30\n\neffect of the source cue on Republicans\xe2\x80\x99 likelihood of donating\n\n(see figure 5), but the differences\n\nbetween the criticism frames were not statistically significant. The Tukey HSD post hoc tests\nshowed Republican subjects were more willing to donate when the criticism came from a fellow\nRepublican compared to a Democrat (p < .001) or even when it came from a bipartisan group (p =\n.018).\n\n30. (F(2,288) = 8.32, p < .001 n2 = .053).\nExperimentally Measuring Responsiveness to Criticisms | 707\n\n\x0cFigure 5\n\nTurning to how strong Republicans viewed the passage to be, I find a statistically significant\n31\n\ndifference here as well, based on the source cue.\n\nRepublicans appear to punish those passages\n\nthat do not include copartisans (see figure 6). Using the Tukey HSD post hoc test, compared to\na Republican source cue, those that came from Democrats were evaluated as worse by .157 (p =\n.002). Also, when compared to a bipartisan source cue, Democratic statements received a lower\nrating by .123 (p = .019). There was not a statistically significant difference between the Republican\nand bipartisan statements (p = .7).\n\n31. (F(2,288) = 5.728, p = .004 n2 = .036).\n708 | Experimentally Measuring Responsiveness to Criticisms\n\n\x0cFigure 6\n\nFinally, Republicans appear to evaluate the credibility of those quoted in the passage based on\nthe partisanship of the messagexxxii (see figure 7), while the criticism type was not statistically\nsignificant. Similar to how they evaluated the strength of the passage, Republicans appear to\npunish press releases that do not include fellow Republicans, with those coming from Democrats\nbeing evaluated as worse by \xe2\x80\x930.19 compared to a Republican source cue (p < .001), and Democratic\npassages were evaluated as worse than the bipartisan treatment by \xe2\x80\x930.159 (p = .001), based on\nthe Tukey HSD post hoc test. There was not a statistically significant difference between the\nRepublican and bipartisan source cues (p = 1.0).\n\nExperimentally Measuring Responsiveness to Criticisms | 709\n\n\x0cFigure 7\n\nFor the first hypothesis, the evidence supports it. Both Democrats and Republicans look as if they\nare first and foremost concerned about the partisanship of those quoted in the passage. Across\nthe board, I find that partisans evaluate the passage as more credible, view it as stronger, are\nmore likely to donate, and generally agree more with passages that come from copartisans.\n\n32\n\nThis, though, does not mean that the frames do not matter. It means rather that we need to\nremove the partisan influence by looking at the influence of the criticism frames within copartisan\ntreatments.\nH2a and H2b are two sides of the same coin. The idea here is that since partisanship is such a\nsignificant factor, we need to control for its influence and look at how partisans respond to a\ncopartisan frame. This analysis proceeds using one-way ANOVA and focusing on partisans who\nreceived a copartisan frame.\nBeginning with Democratic subjects who were told the criticism came from fellow Democrats, in\nterms of agreement with the passage I find that the differences between the criticism types were\nnot statistically significant (p = .057). However, in terms of their willingness to donate, Democrats\nappear to respond to the criticism frame presented, as the difference between the criticism type\n\n32. In some situations this positivity toward copartisans meant that they also viewed the bipartisan\ntreatment more positively.\n710 | Experimentally Measuring Responsiveness to Criticisms\n\n\x0cis statistically significant.\n\n33\n\nThe Tukey HSD post hoc test shows that the statistically significant\n\ndifference is between the democratic process and political frames (p = .031), with Democrats being\n.20 points more likely to donate when presented with a democratic process frame compared to\nthe political frame (see figure 8). The difference between the countermajoritarian and democratic\nprocess frames was not statistical significance (p = .055). Remember, the results here are\nDemocrats being asked about donating to fellow Democrats, and therefore the difference detected\nhere appears to be a result of the language used, and not the partisan source cue.\n\nFigure 8\n\nIn terms of evaluations of the strength of the passage (p = .139) and its credibility (p = .453), I find\nthat there is no statistically significant difference between the criticism frames for Democrats who\nreceived a copartisan source cue.\nIn the end, then, this analysis suggests limited evidence for H2a that Democratic subjects\nresponded to the criticism frames presented to them. Even when we remove the influence of\npartisanship, there is no evidence that Democrats agreed more with the democratic process frame\ncompared to the countermajoritarian one, and only slight evidence that they were more willing to\ndonate when exposed to the democratic process frame compared to the political one. This offers\nsome limited evidence in support of the hypothesis.\n\n33. (F(2,114) = 3.851, p = .024).\nExperimentally Measuring Responsiveness to Criticisms | 711\n\n\x0cFor Republicans, I find even less evidence that the criticism frame influenced their attitudes\ntoward the passage. There was no statistically significant difference between the frames in terms\nof agreement with the passage (p = .575), willingness to donate (p = .490), how strong the argument\nin the passage was (p = .538), nor for how credible those quoted in the passage were (p = .918).\nTherefore, for H2b, I find no evidence that Republicans responded to the criticism frames they\nwere presented with.\nH3a looks at the influence the frames may have on evaluations of the Court\xe2\x80\x99s legitimacy. Previous\nresearch has found that framing the Court in a way other than \xe2\x80\x9clegal\xe2\x80\x9d has the potential to affect\nhow legitimate voters view it to be (Baird and Gangl 2006; B. L. Bartels and Johnston 2012;\nNicholson and Hansford 2014). H3a takes this line of inquiry in a different direction by asking if\nframing the Court as harmful to democracy harms evaluations of its legitimacy. To the extent that\nthe democratic process and countermajoritarian frames call into question the Court\xe2\x80\x99s legitimacy\nin a way that the political criticisms do not, I hypothesize that these frames will diminish the\nCourt\xe2\x80\x99s legitimacy.\nFor this analysis I shift my approach to use a two-way repeated measures ANOVA, taking\nadvantage of the fact that the same legitimacy questions were asked of all subjects at the\nbeginning of the survey and after the treatments. Repeated measures ANOVA has the benefit of\ncontrolling for the effect of how legitimate voters viewed the Court at the start of the survey, prior\nto any of the treatments, allowing one to more effectively detect any changes in the posttreatment\nmeasures and facilitating a between-subjects analysis (between the groups of different criticism\nframes) and a within-subjects analysis (comparing individuals\xe2\x80\x99 pre- and posttreatment legitimacy\nscores).\nFor Democratic subjects who received a Democratic source cue, I find that there is no statistically\nsignificant effect of the criticism frame on evaluations of legitimacy, the within-subjects analysis\n(p = .453) was not statistically significant, nor was the between-subjects analysis (p = .055). Among\nRepublicans, I also find no evidence that the criticism frames, when paired with a copartisan\nsource cue, had any effect on evaluations of judicial legitimacy. The within-subjects analysis was\nnot statistically significant (p = .735) nor was the between-subjects analysis (.671).\nThus for the hypothesis that these criticism frames would harm the Court\xe2\x80\x99s legitimacy, I find\nno supporting evidence. While some work has found that framing the Court as political rather\nthan legal may damage the Court\xe2\x80\x99s legitimacy, my analysis does not suggest that highlighting the\npotentially antidemocratic nature of the Court has a similar effect.\nH3b is a flip on the previous hypotheses. Since partisanship is a driving factor in responsiveness to\nthe passages, I expected that when subjects were presented with a counterpartisan framing (i.e., a\nDemocrat presented with a Republican source cue, and vice versa) they might come to the defense\nof the Court and rate it as more legitimate. In the analysis then I expect that when presented with\n712 | Experimentally Measuring Responsiveness to Criticisms\n\n\x0ca counterpartisan frame that calls into question the compatibility of the Court and democracy,\nsubjects will increase their evaluations of how legitimate they view the Court to be.\nUsing two-way repeated measures ANOVA again I test this hypothesis by looking at both the\nwithin-subjects change from the pretreatment scores to the posttreatment scores, and at the\neffects between subjects caused by the criticism frame they were presented. Looking at\nDemocrats first, I find no evidence that when presented with a counterpartisan frame that they\nview the Court as more legitimate. Neither the within-subjects analysis (p = .999) nor the betweensubjects analysis (p = .531) was statistically significant.\nFor the Republican subjects, there was not a statistically significant change within subjects when\npresented with a Democratic attack on the Court (p = .824). However, the between-subjects\nanalysis did show a statistically significant difference between the criticism frames.\n\n34\n\nAccording\n\nto the Bonferroni post hoc test, evaluations of the Court\xe2\x80\x99s legitimacy after the treatment were\n.144 points lower in the democratic process frame compared to the countermajoritarian frame (p\n< .05). Additionally, as seen in figure 9 below, Republicans appear to come to the Court\xe2\x80\x99s defense\nwhen Democrats use countermajoritarian language. While the differences between the criticism\nframes and the pretreatment legitimacy scores were not statistically significant (p = .07), this does\nsuggest that potentially there is something about receiving a counterpartisan frame and either the\ncountermajoritarian or democratic process frame that influenced Republican\xe2\x80\x99s attitudes toward\nthe Court.\n\nFigure 9\n\n34. (F(2,78) = 3.344, p = .04).\nExperimentally Measuring Responsiveness to Criticisms | 713\n\n\x0cThis suggests Republicans are responsive to these criticisms, and when Democrats \xe2\x80\x9cborrow\xe2\x80\x9d\nRepublican language to attack the Court, they view this differently than when Democrats attack\n35\n\nthe Court on their own terms.\n\nWhile the criticisms did not appear to change individual\n\nevaluations of the Court, Republicans at least appear to express a distinction between the criticism\nframes in terms of how legitimate they view the Court to be.\n\nConclusion\nThe literature is full of examples that disagreement with specific decisions of the Court does little,\nif anything, to harm the Court\xe2\x80\x99s legitimacy. Other projects have looked at how the framing of those\ndecisions can influence the public\xe2\x80\x99s support for them, and even the Court\xe2\x80\x99s legitimacy. This study\ngoes in a different direction by analyzing the extent to which framing the Court as antidemocratic\ncan influence attitudes toward\xe2\x80\x99 the Court\xe2\x80\x99s legitimacy. Briefly, my results suggest that while these\ncriticisms do not drain the Court\xe2\x80\x99s reservoir of goodwill or its legitimacy, these antidemocratic\nframes may be a threat to the Court over the long run.\nMy analysis finds limited evidence that attacking the Court as antidemocratic does much to harm\nthe Court\xe2\x80\x99s legitimacy. Even when presented with a copartisan source cue, there is no evidence\nthat highlighting the ways in which the Court is incompatible with or harmful to democracy\ndiminishes the Court\xe2\x80\x99s legitimacy. The most interesting finding in this area, however, is that\nRepublican subjects appear to come to the Court\xe2\x80\x99s defense when presented with a Democrat\nattacking the Court using countermajoritarian language. However, this does not mean that these\nframes were not salient to subjects.\nOnce we account for the partisanship of those quoted in the passage, I find evidence that\nsubjects responded to frames in a way that was consistent with the partisan divide in how\nlegislators use those same frames. Specifically, I find that Democrats are more responsive to\nthe democratic process framing, while Republicans prefer the countermajoritarian language. This\npreference appears to be strongest among Democrats, who express a greater willingness to\ndonate when presented with the democratic process framing. Interestingly, this would imply that\nfor Democratic elected officials, even though the Court is viewed positively by Democrats and\nthe public at large, there is something to be gained by using the Supreme Court as a foil for their\ncriticisms.\n\n35. For terms here, what I mean is that based on the differences in how Democratic and Republican\nelected officials attack the Court, I associate Republicans with countermajoritarian language and\nDemocrats with democratic process language.\n714 | Experimentally Measuring Responsiveness to Criticisms\n\n\x0cFor the larger discussion about the role of the Supreme Court in our democracy, I find that voters\nare open to these messages that the Court is, potentially, antidemocratic. Despite the Court\xe2\x80\x99s high\nlevels of approval and legitimacy, it does not appear that the subjects here rejected these frames.\nHad subjects evaluated one criticism frame more negatively, that would suggest they disagreed\nwith that messaging. The lack of differences in how subjects evaluated the messaging regarding\nthe Court suggests that the subjects were open to criticisms of the Court, and further that they\ndo not draw much of a distinction regarding how it is done. While these messages did not directly\ndiminish the Court\xe2\x80\x99s legitimacy, the fact that voters did not reject them is an important finding\nnonetheless.\nAs the Court continues to involve itself in many of our most salient and controversial social and\npolitical questions, we may see these frames invoked more frequently. While a one-off criticism\ndoes not appear to diminish the Court\xe2\x80\x99s legitimacy, what remains to be seen is if sustained\ncriticisms of a Court that continues to involve itself in our democratic and political process strike a\nnerve with voters over time, possibly opening the doors for criticisms of the Court that previously\nwould have been politically unthinkable.\n\nActivity\n1. You have recently been hired by a political consulting firm (congratulations!). Your firm is\nworking with a local member of Congress who is deeply upset with the US Supreme\nCourt. She would like you to work on some messaging to attack the Court that she can\nuse in her upcoming House race.\na. Do you advise her to attack the Court or not? (why or why not?)\nb. How do you suggest that she attack the Court? Why do you think this would be an\neffective line of attack? If her district is solidly in line with her partisanship, would\nyour advice be different than if it were a more competitive district?\nc. How would your advice differ if the Congresswoman wants to attack the Court to\nscore political points, versus if her goal is to actually rein in or punish the Court?\nd. Never one to miss a business opportunity, your firm is also doing some consulting\nfor her opponent. How would you suggest that they respond to the attacks on the\nCourt (if at all)?\n2. Which type of criticism (political, countermajoritarian, or democratic process) resonates\nmore with you? Why do you find that line of attack more compelling, or alternatively,\nwhy are the others less powerful?\nExperimentally Measuring Responsiveness to Criticisms | 715\n\n\x0c3. If you were to replicate this experiment, how would you change the treatments\n(vignettes) used?\n4. What is the proper role that you see for the Supreme Court in our democracy? What\ntypes of cases do you think the Court should be involved in or not involved in? Can you\ncome up with a nonpartisan set of guidelines for how the Court should behave?\n\nAppendix 1: Significant Correlations between Demographics\nand Manipulation Checks\nIn the exploration of the data prior to the analysis, I uncovered a correlation between several of\nthe demographic variables and the manipulation checks. There was a weak positive correlation\nbetween age and the combined measure of the manipulation checks (r = .287, n = 991, p <\n.001). A similarly weak and positive relationship was found between the manipulation checks\nand education (r = .243, n = 990, p < .001), political knowledge (r = .359, n = 991, p < .001), and\nself-identified White subjects (r = .212, n = 991, p < .001). There were equally weak and negative\ncorrelations between the manipulation checks and self-identified black respondents (r = \xe2\x80\x930.116, n\n= 991, p < .001) and Hispanics (r = \xe2\x80\x930.099, n = 991, p < .01).\nWhile correlations are never ideal, the randomization was carried out successfully and, despite\nthe small correlations reported above, these findings should not complicate the analysis or muddy\nthe results of the experiment.\n\nReferences\n\xe2\x80\x9cAbout the Supreme Court.\xe2\x80\x9d n.d. United States Courts. Accessed August 23, 2020.\nhttp://www.uscourts.gov/about-federal-courts/educational-resources/about-educationaloutreach/activity-resources/about.\nBaird, V. A., and A. Gangl. 2006. \xe2\x80\x9cShattering the Myth of Legality: The Impact of the Media\xe2\x80\x99 s\nFraming of Supreme Court Procedures on Perceptions of Fairness.\xe2\x80\x9d Political Psychology 27 (4):\n597\xe2\x80\x93614.\n716 | Experimentally Measuring Responsiveness to Criticisms\n\n\x0cBartels, B. L. 2014. \xe2\x80\x9cExperiments in Law and Courts Research: Opportunities, Issues, and\nSuggestions.\xe2\x80\x9d Newsletter of the Law & Courts Section of the American Political Science Association\n24 (1): 29.\nBartels, B. L., and C. Johnston. 2013. \xe2\x80\x9cOn the Ideological Foundations of Supreme Court Legitimacy\nin the American Public.\xe2\x80\x9d American Journal of Political Science 57 (1): 184\xe2\x80\x9399.\nBartels, B. L., and C. D. Johnston. 2012. \xe2\x80\x9cPolitical Justice? Perceptions of Politicization and Public\nPreferences toward the Supreme Court Appointment Process.\xe2\x80\x9d Public Opinion Quarterly 76 (1):\n105\xe2\x80\x9316.\nBartels, L. M. 2008. Unequal Democracy: The Political Economy of the New Gilded Age. 1st ed.\nPrinceton, NJ: Princeton University Press.\nBickel, A. 1962. The Least Dangerous Branch. New Haven, CT: Yale University Press.\nBurke, E. 1774. The Works of the Right Honourable Edmund Burke. Project Gutenberg.\nhttps://www.gutenberg.org/files/58646/58646-h/58646-h.htm.\nButler, D. M., and D. E. Broockman. 2011. \xe2\x80\x9cDo Politicians Racially Discriminate against\nConstituents? A Field Experiment on State Legislators.\xe2\x80\x9d American Journal of Political Science 55\n(3): 463\xe2\x80\x9377.\nCaldeira, G. A., and J. L. Gibson. 1992. \xe2\x80\x9cThe Etiology of Public Support for the Supreme Court.\xe2\x80\x9d\nAmerican Journal of Political Science 36 (3): 635\xe2\x80\x9364.\nCarroll, S. 2003. \xe2\x80\x9cRepresenting Women.\xe2\x80\x9d In Women Transforming Congress, edited by Cindy Simon\nRosenthal, 50\xe2\x80\x9368. 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Nelson. 2014. \xe2\x80\x9cThe Legitimacy of the US Supreme Court: Conventional\nWisdoms and Recent Challenges Thereto.\xe2\x80\x9d Annual Review of Law and Social Science 10:201\xe2\x80\x9319.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2015. \xe2\x80\x9cIs the US Supreme Court\xe2\x80\x99s Legitimacy Grounded in Performance Satisfaction and\nIdeology?\xe2\x80\x9d American Journal of Political Science 59 (1): 162\xe2\x80\x9374.\n\n718 | Experimentally Measuring Responsiveness to Criticisms\n\n\x0cHamilton, A., J. Madison, and J. Jay. (1790) 2003. Federalist, no. 78. In The Federalist Papers, 1st ed.,\nedited by C. Rossiter. New York: Signet.\nHasen, R. L. 2016. Celebrity Justice: Supreme Court Edition. UC Irvine School of Law.\nhttps://papers.ssrn.com/sol3/papers.cfm?abstract_id=2611729.\nHoekstra, V. J. 2000. The Supreme Court and Local Public Opinion. American Political Science\nReview, 94 (1), 89\xe2\x80\x93100.\nKastellec, J. P. 2017. \xe2\x80\x9cJudicial Federalism and Representation.\xe2\x80\x9d Journal of Law and Courts 6 (1): 51\xe2\x80\x9392.\nKoning, A. 2020. A Survey Researcher\xe2\x80\x99s Many Decisions. Oxford: Oxford University Press.\nLaw, T. 2019. \xe2\x80\x9cThese Presidents Won the Electoral College\xe2\x80\x94but Not the Popular Vote.\xe2\x80\x9d TIME, May\n15, 2019. https://time.com/5579161/presidents-elected-electoral-college/.\nMann, T. E. 2001. \xe2\x80\x9cReflections on the 2000 US Presidential Election.\xe2\x80\x9d Brookings, January 1, 2001.\nhttps://www.brookings.edu/articles/reflections-on-the-2000-u-s-presidential-election/.\nMason, L. 2018. Uncivil Agreement: How Politics Became Our Identity. Chicago: University of\nChicago Press.\nMinta, M. D., and V. Sinclair-Chapman. 2012. \xe2\x80\x9cDiversity in Political Institutions and Congressional\nResponsiveness to Minority Interests.\xe2\x80\x9d Political Research Quarterly 66 (1): 127\xe2\x80\x9340.\nMishler, W., and R. 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(2003). \xe2\x80\x9cFraming Support for the Supreme Court in the Aftermath\nof Bush v. Gore.\xe2\x80\x9d Journal of Politics 65 (3): 676\xe2\x80\x9395.\nPeabody, B. G., and K. J. Morgan. 2013. \xe2\x80\x9cHope, Fear and Loathing, and the Post-Sebelius\nDisequilibrium: Assessing the Relationship between Parties, Congress, and Courts in Tea Party\nAmerica.\xe2\x80\x9d British Journal of American Legal Studies 2 (1): 27\xe2\x80\x9358.\nPersily, N., J. Citrin, and P. Egan, eds. 2008. Public Opinion and Constitutional Controversy. 1st ed.\nOxford: Oxford University Press.\nRosenthal, C. S. 1998. When Women Lead: Integrative Leadership in State Legislatures. Oxford:\nOxford University Press.\nSchattschneider, E. 1960. The Semisovereign People: A Realist\xe2\x80\x99s View of Democracy in America. New\nYork: Holt, Rinehart, and Winston.\nSeltzer, B. 2012. \xe2\x80\x9cCNN and Fox Trip Up in Rush to Get the News on the Air.\xe2\x80\x9d New York Times,\nJune\n\n28,\n\n2012.\n\nhttps://www.nytimes.com/2012/06/29/us/cnn-and-foxs-supreme-court-\n\nmistake.html.\nSunstein, C. R. 1988. \xe2\x80\x9cBeyond the Republican Revival.\xe2\x80\x9d Yale Law Journal 97 (8): 1539\xe2\x80\x9390.\nTate, K. 2003. Black Faces in the Mirror: African Americans and Their Representation in the US\nCongress. Princeton, NJ: Princeton University Press.\nTyler, T. R. 2006. \xe2\x80\x9cPsychological Perspectives on Legitimacy and Legitimation.\xe2\x80\x9d Annual Review of\nPsychology 57:375\xe2\x80\x93400.\nZilis, M. A. 2015. The Limits of Legitimacy: Dissenting Opinions, Media Coverage, and Public\nResponses to Supreme Court Decisions. Ann Arbor: University of Michigan Press.\n\n720 | Experimentally Measuring Responsiveness to Criticisms\n\n\x0c29. Public Attitudes toward State Courts\nKENNETH E. FERNANDEZ AND JASON A. HUSSER\n\nState courts in the United States are the workhorses of the judicial system; they currently preside\nover 96 percent of the cases filed in the United States (National Center for State Courts 2018).\nIn 2016, state trial courts in the United States had a caseload of over 14 million civil cases and 17\nmillion criminal cases (National Center for State Courts 2016). Compare this to 291,851 civil cases\nand 77,357 criminal cases filed in US district courts that same year (United States Courts 2016).\nIn addition, state courts have been highly active in reviewing and challenging state policies. For\nexample, prior to federal court involvement, many state supreme courts began striking down bans\non gay marriage (Kastellec 2018).\nYet state courts receive far less attention from scholars compared to courts at the federal level.\nEven more neglected is the study of public perceptions of state courts. Instead, researchers often\nfocus on other branches of government, especially at the federal level. In the field of political\nscience, there is a rich and diverse body of research on individual-level confidence in political\ninstitutions. This includes the presidency, the federal bureaucracy, Congress, and the US Supreme\nCourt. This is driven by the concern that low levels of trust and support can be a symptom of\nserious problems in a democratic society, including lack of adequate political representation and\neven corruption. Low levels of confidence in political institutions can also produce or exacerbate\nproblems, such as political apathy and low voter turnout or even noncompliance with the law. It\nis firmly believed that a healthy democracy requires a certain amount of institutional trust and\nsupport at all levels of government. However, support for national-level organizations tends to\ndominate scholars\xe2\x80\x99 attentions at the expense of state government institutions.\nVery few studies examine support for state political institutions, especially state courts (Berthelot,\nMcNeal and Baldwin 2018). This lack of attention toward state courts is unfortunate given the\ncaseloads these courts handle every year and that most public interaction with the courts is\nlikely to occur at this level. In their study of state supreme courts, Curry and Romano (2018, 140)\nargue that well-functioning democracy requires the \xe2\x80\x9cperception that the system works for the\nbenefit of citizens,\xe2\x80\x9d and this includes perceptions of the judicial system. Public opinion surveys\nallow researchers, citizens, judges, and other public officials to assess how courts are perceived\nin society. How the public views the courts is critical given that their power relies heavily on\nperceived legitimacy. As a former US Supreme Court justice, Felix Frankfurter stated in the\nCourt\xe2\x80\x99s ruling in Barr v. Carr, \xe2\x80\x9cThe Court\xe2\x80\x99s authority\xe2\x80\x94possessed of neither the purse nor the\nsword\xe2\x80\x94ultimately rests on sustained public confidence in its moral sanction\xe2\x80\x9d (1962, 268).\nThis chapter will examine public attitudes toward the state court system in a single state: North\nPublic Attitudes toward State Courts | 721\n\n\x0cCarolina. We will first discuss the importance of studying state courts. We then briefly describe\nthe structure of state courts. Findings from a survey conducted by the Elon University Poll in 2015\nof over 1,234 state residents will then be presented. Statistical analysis of these survey data will\nbe used to examine the various factors that influence people\xe2\x80\x99s perceptions of state courts. We\nconclude by discussing the importance of public opinion research at the state level, especially in a\nfederalist democracy.\n\nThe Importance of Studying State Courts and Public Opinion\nThe rule of law is considered one of the pillars on which democracy rests (O\xe2\x80\x99Donnell 2004).\nO\xe2\x80\x99Donnell describes the rule of law as the consistent and fair application of legal rules, where\nrules are applied without consideration of the \xe2\x80\x9cclass, status, or relative amounts of power\xe2\x80\x9d of the\nparties involved. Furthermore, rules are applied through a \xe2\x80\x9cpreestablished, knowable\xe2\x80\x9d (2004, 33)\nprocedure that allows all stakeholders an opportunity to voice their case. The role of maintaining\nthe rule of law often falls to the courts, particularly when an individual or group submits a\ngrievance regarding the violation of or the unequal application of the law. For the courts to serve\ntheir function and help maintain the rule of law, they require a certain level of trust and support\nfrom the public (Caldeira and Gibson 1992). Although most of the scholarly (and media) attention\nfocuses on the major decisions of higher courts (Olson and Huth 1998), the day-to-day decisions\nof the state and local courts address all dimensions of our social, economic, and political lives,\nfrom how land is used, to the power of public officials, to how the government itself is organized.\nDolbeare (1976) makes the argument that state court cases have enormous capacity in determining\nthe essence of politics, specifically \xe2\x80\x9cwho gets what, when, and how\xe2\x80\x9d in state and local politics.\nWilliam J. Brennan, a former US Supreme Court justice, once said that state courts were more\nimportant than federal courts because they deal with the issues that are most relevant to our daily\nlives (Brennan 1966). Clearly, such an institution deserves closer inspection by scholars and the\npublic.\nBecause state courts affect our daily lives, citizens are very likely to have personal contact and\nexperience with the state court system (Rottman 2015). They may be called to be a jury member,\nthey may serve as a defendant or plaintiff, or they may be called to testify in court. In fact, some\nsurveys have found that approximately half of citizens have had some contact with the lower\ncourts (Olson and Huth 1998). Since this complex institution has frequent contact with the public,\nit is important that there is some level of accountability established for the court system. Elections\ncan help hold courts accountable by removing judges who are deemed by voters as unacceptable;\nhowever, the removal of judges is very rare and only provides information that the judge was not\nretained. Therefore, we believe that public opinion (and public opinion surveys) can help provide\n722 | Public Attitudes toward State Courts\n\n\x0cspecific information about how citizens feel about the courts and, in some cases, why they feel the\nway they do.\nUnfortunately, prior literature reviews have shown that state courts are often neglected by\nresearchers examining the judicial system in the United States. Furthermore, the study of public\nattitudes toward state courts is especially thin (Buckler, Cullen and Unnever 2007; Wenzel, Bowler\nand Lanoue 2003). Benesh points out that the \xe2\x80\x9csystematic analysis of public confidence in\nAmerica\xe2\x80\x99s lower courts has been missing\xe2\x80\x9d (2006, 697). This chapter will attempt to provide\nadditional insights into how the public views state courts.\n\nThe Structure of State Courts\nOne reason there is less research on state courts is because the court system in each state is\ndifferent, and each has changed over time. Starting in the early twentieth century, states began to\nreform their state judicial systems to consolidate the diverse and overlapping courts that appeared\nacross the different localities (Hall 1999). By the 1970s, most states had combined all state and\nlocal courts into a unified, state-funded judicial system. In North Carolina, this unified state\ncourt system (which includes the supreme court, appeals courts, and trial courts) was created in\n1965 and is called the General Court of Justice (https://www.nccourts.gov/). The General Court\nof Justice is funded and administered through the North Carolina Administrative Office of the\nCourts.\nEven with these reforms and unifications, no two state court systems are alike. However, these\nsystems do have many commonalities (Berkson 1980). They typically have a three-level structure\nthat includes appellate courts, trial courts of general jurisdiction, and trial courts of limited\njurisdiction.\n\nState Supreme Court and Appellate Courts\n1\n\nAll states have at least one state court of final resort, usually called the supreme court. Most\nof these state supreme courts have five or seven justices, with all the justices participating in\neach case. These state supreme courts hear appeals of major questions arising from the lower\n\n1. In Maine and Massachusetts, the court of last resort is referred to as the supreme judicial court, and\nin Maryland it is called the court of appeals.\nPublic Attitudes toward State Courts | 723\n\n\x0ccourts. For example, in North Carolina there are seven supreme court justices who disposed of 136\ncases during the 2017\xe2\x80\x9318 session. There is no further appeal from decisions made by these courts\nregarding state law or state constitutional matters unless the issue also relates to a federal law\nor involves a right protected by the US Constitution. All but nine states also have an intermediate\nappellate court, often called the court of appeals, which hears appeals from the state trial courts\n(Cole and Smith 1998). For example, in the North Carolina Court of Appeals, there are fifteen judges\ndivided into five panels of three judges to hear cases being appealed from lower courts in the state.\nIn the 2017\xe2\x80\x9318 session, the North Carolina Court of Appeals disposed of over 2,178 cases.\n\nState Trial Courts\nState trial courts are often divided into courts of general jurisdiction and limited jurisdiction. State\ntrial courts of general jurisdiction are typically located in the county seat but are funded by the\nstate. These courts hear both criminal (primarily felony crimes) as well as substantial civil cases.\nCourts of general jurisdictions go by different names depending on the state; in North Carolina,\nthey are called superior courts. According to Berlin (2013), there are around three thousand trial\ncourts of general jurisdictions in the United States, and each judge in these trial courts hears\naround 1,800 cases per year. In North Carolina, there are 107 superior court judges organized in\neight divisions and forty-eight districts across the state. These judges hear all felony cases and\ncivil cases involving amounts over $10,000. In the 2017\xe2\x80\x9318 session, North Carolina superior courts\ndisposed of 291,654 cases.\nState trial courts of limited jurisdiction (also known as inferior courts or lower trial courts) hear\nsmaller civil cases and less-serious criminal cases as well as preliminary matters in more serious\ncases. There are approximately 13,500 courts of limited jurisdiction in the United States (Cole and\nSmith 1998). In North Carolina, trial courts of limited jurisdiction are known as district courts.\nThere are 272 district court judges in North Carolina organized into forty-one districts. These\ndistrict court judges hear misdemeanor cases, preside over probable cause hearings, and hear\nguilty or no-contest pleas in some felony criminal cases. These lower courts also preside over\ncivil cases involving $10,000 or less, and like most lower courts in the fifty states, they deal with\ndomestic relations cases (e.g., divorce), juvenile cases, and commitments to mental health facilities\n(Silbey 1981).\n\nJudicial Selection in the States\nUnlike most judges serving in the federal court system, who receive lifetime appointments, judges\n724 | Public Attitudes toward State Courts\n\n\x0cin most states face some type of election. The fifty different states use a variety of methods\nto select and retain judges. Partisan elections for state judges, where candidates\xe2\x80\x99 political party\naffiliations appear on the ballot, were popular in the 1800s, but in the twentieth century, many\nstates, including North Carolina, changed to nonpartisan elections of judges (Glick 2004). Today,\nonly eight states still elect most of their judges through partisan elections, while seven other states\nselect some judges using partisan elections. Thirteen states use nonpartisan elections, while eight\nmore use nonpartisan elections to elect some judges. Several states use a merit system to select\njudges. In a merit system, a regional or statewide panel of appointed lawyers and nonlawyers\nmakes judicial nominations. Some states combine both a merit system and a retention election,\nallowing citizens to decide whether to keep an appointed judge in office. Two states, California and\nNew Jersey, allow the governor to appoint higher-level court judges, and two other states, Virginia\nand South Carolina, allow the state legislature to appoint judges. Only Rhode Island appoints\nstate judges for lifetime tenure. Massachusetts and New Hampshire appoint judges to tenured\nappointments that last until the age of seventy, which is the mandatory retirement age.\nThe selection of judges in North Carolina has been particularly interesting because of the number\nof procedural changes in recent years. Prior to 2002, North Carolina used partisan elections to\nselect all judges in the state. In 2002, the state legislature passed a law that required all statewide\njudicial electoral races to be nonpartisan. This was designed to address the increasing level of\nfundraising, campaigning, and partisanship in state judicial elections (Troutman 2007). However, in\n2016 and 2017, the North Carolina state legislature passed laws to return to partisan elections. Now\nin North Carolina, district court, superior court, appellant court, and state supreme court judges\nare selected through a partisan election.\nElections give the public a voice in how state courts operate by allowing voters to select judges and\nother court officials. Still, the public is sometimes wary of the value of these elections, suspicious\nthat campaign contributions may cause conflicts of interest for court officials campaigning for\nreelection (Cann and Yates 2008; Gibson 2008). Some studies have found that electing judges can\nenhance the public\xe2\x80\x99s trust in courts, while other studies have shown elections create skepticism\namong the public of judges and the courts (Gibson 2008; Rottman 2015). Public opinion surveys are\nuseful in helping policy makers understand which selection methods promote trust in the courts\nand enhance the courts\xe2\x80\x99 legitimacy. Furthermore, Curry and Romano (2018) maintain that elected\njudges, for good or bad, are more likely to take into consideration the public\xe2\x80\x99s opinions when ruling\non salient issues.\n\nPublic Attitudes toward State Courts | 725\n\n\x0cA Public Opinion Survey of North Carolina\nAs noted, there are few studies that examine public opinion of state courts; however, there are\neven fewer studies examining public attitudes toward the courts within a single state (Overby,\nBrown, Bruce, Smith and Winkle 2004). There are advantages to studying a single state. Since\nstates differ in how they select judges, we can imagine that state variation in institutional\nmechanisms could influence how much the public trusts the courts (Wenzel, Bowler and Lanoue\n2003). In a national survey, it is sometimes difficult to understand why an African American male\nrespondent in California has a different opinion about his state courts than an African American\nmale in North Carolina. It could be because one state has a higher crime rate or elects its judges\nand the other does not. Examining a single state allows researchers to study individuals within\na single court system. All respondents in North Carolina are represented by the same judicial\nsystem and are governed by the same state laws and policies. Nicholson-Crotty and Meier (2002)\nargue that it is sometimes better to examine a single state than to collect data from all fifty. Many\nscholars of state courts believe that single-state studies can provide important insights into the\njudicial system (Dougherty, Lindquist and Bradbury 2006; Yates 2009).\nThere are also limitations to studying a single state. For example, it limits one\xe2\x80\x99s ability to generalize\nthe statistical findings to larger populations or other states (Olson and Huth 1998). For our\npurposes, however, we believe that collecting a healthy sample of residents in a single state\nhelps ensure adequate coverage of certain subgroups, such as African Americans and rural county\nresidents.\nIt should be noted that North Carolina is neither typical nor necessarily unique. With a population\nover ten million, North Carolina is the tenth most populous state in the nation. More importantly,\nNorth Carolina is a southern state, and the South has a unique history and culture, especially\nregarding trust in political institutions. Christensen found that \xe2\x80\x9cNorth Carolina remains culturally\nconservative, more like Alabama than California\xe2\x80\x9d (2008, 313). However, some scholars have\nsuggested that North Carolina is different from the rest of the southern states and is more similar\nto the rest of the country (Vercellotti 2008).\n\nPublic Opinion and the Courts: The Elon University Poll\nThe Elon University Poll conducted a live-caller, dual-frame (landline and cell phone) survey of\n1,330 adult residents of North Carolina between October 29 and November 2, 2015. Of these\nrespondents, 1,234 answered all the questions used for weighting (age, gender, race, type of phone\n\n726 | Public Attitudes toward State Courts\n\n\x0c2\n\nuse). The survey reported here has a margin of error of \xc2\xb12.79 percentage points. The survey\nincluded various questions about state courts and other political issues. The list of the questions\nanalyzed in this chapter and a link to the full survey report appears in the appendix.\nThe few studies that have examined public attitudes toward state courts have used different\nquestion wording to determine trust and support for state courts. For example, Olson and Huth\n(1998) ask respondents, \xe2\x80\x9cDo you believe the courts in Utah are doing a good job?\xe2\x80\x9d However, Benesh\n(2006) uses a survey item that asks respondents, \xe2\x80\x9cWhat is your level of confidence in the courts\nin your community?\xe2\x80\x9d Studies have shown how even slight wording differences in survey items can\ncause respondents to answer questions differently (Husser and Fernandez 2016).\nScholars have suggested that the above measures are imperfect because they are incapable of\ndistinguishing between specific and diffuse public support. Researchers thus recommend using\nmultiple survey items to capture different dimensions of public opinion toward the courts.\nCaldeira defines specific support as a \xe2\x80\x9cset of attitudes toward an object based upon the fulfillment\nof demands for particular policies or actions\xe2\x80\x9d (1991, 322) and therefore possibly more likely to\nchange depending on the circumstances. On the other hand, diffuse support is described as\nmore generalized and potentially more persistent. Caldeira and Gibson (1992) suggest that diffuse\nsupport may be based on a recognition of the basic legitimacy of the courts and their function\nin society. That support may persist even when a respondent is unhappy with a specific decision\nmade by the courts (Gibson, Caldeira, and Spence 2003).\nIn this study, we ask about diffuse support and specific support for North Carolina state courts.\nTo measure diffuse support, we ask respondents about the level of confidence they have in\nstate courts (see table 1). For comparison, we also ask about confidence in five other political\ninstitutions: the federal government, the media, the US Supreme Court, local public schools,\nand local police or sheriffs. Respondents were specifically asked, \xe2\x80\x9cFirst, I\xe2\x80\x99d like to know how\nmuch confidence you have in the following public institutions using the scale of very confident,\nsomewhat confident, not very confident, or not at all confident. In general, how would you rate\nyour confidence in the following?\xe2\x80\x9d The names of the political institutions were rotated randomly\nto avoid bias.\n\n2. The purpose of most survey research is to obtain a sample that is representative of the true\npopulation. However, adjustments may be needed because of sampling error or response bias (e.g.,\nyounger residents are less likely to answer political polls). To correct for biases, the sample is often\nweighted so that it matches known demographic information about the population (often obtained\nfrom the US Census).\nPublic Attitudes toward State Courts | 727\n\n\x0cInstitution\n\n% Somewhat or Very Confident\n\nLocal Police/Sheriff\n\n81.0\n\nNC State Courts\n\n65.9\n\nLocal Public Schools\n\n65.8\n\nUS Supreme Court\n\n65.0\n\nFederal Government 37.2\nThe Media\n\n35.6\n\nTable 1. Confidence in Political Institutions\n\nThe public in North Carolina is generally quite confident in the local police or sheriff. Eighty-one\npercent of those surveyed said they were somewhat or very confident in this local institution. No\nother institution had such a high level of confidence. These findings are consistent with Walker\xe2\x80\x99s\n(1977) study of North Carolina. Walker found that the public had very different levels of confidence\nregarding political institutions and that the public tended to have the highest support for law\nenforcement.\nNearly 66 percent of respondents stated they were somewhat or very confident in the North\nCarolina state courts. This was followed closely by local public schools, with 65.8 percent, followed\nby the US Supreme Court, with 65 percent. Confidence in the federal government and the media\nwas the lowest among the six institutions, with 37 percent and 36 percent, respectively.\nThe survey also asks respondents a question on the fairness of the courts: \xe2\x80\x9cHow often do people\nreceive fair outcomes when they deal with the courts? Always, usually, sometimes, seldom, or\nnever?\xe2\x80\x9d (see table 2). This question is more specific than just asking respondents about how\nconfident they are in the courts; it requires them to evaluate court performance and behavior.\nOverall confidence may tap into \xe2\x80\x9cdiffuse support\xe2\x80\x9d for the courts, whereas fairness may tap into\n\xe2\x80\x9cspecific support\xe2\x80\x9d by stressing the institution\xe2\x80\x99s performance and quality of service (Olson and\nHuth 1998; Tyler 1988). In addition, the survey asked respondents how they felt the state courts\ntreated certain groups, including African Americans, whites, Hispanics, and people who are low\nincome (see table 3).\n\n728 | Public Attitudes toward State Courts\n\n\x0c%\nAlways\n\n3.1\n\nUsually\n\n36.9\n\nSometimes\n\n41.6\n\nSeldom\n\n8.5\n\nNever\n\n2.2\n\nDon\'t Know 7.6\nRefused\n\n0.1\n\nN=\n\n100%\n\nTable 2. Fairness of the Courts\n\nNC courts free from political\ninfluence\n\nJudges influenced by political\nparties\n\nJudges influenced by\nelections\n\nStrongly\n\n2.8%\n\n4.2%\n\n23.6%\n\nAgree\n\n14.3%\n\n51.7%\n\n51.8%\n\nDisagree\n\n44.7%\n\n16.3%\n\n16.2%\n\nStrongly\nDisagree\n\n31.0%\n\n2.5%\n\n1.8%\n\nDon\'t Know\n\n7.1%\n\n5.1%\n\n6.2%\n\nRefuse\n\n0.1%\n\n0.2%\n\n0.5%\n\nTable 3. Political Influences on the Courts and Judges\n\nA large proportion of respondents, nearly 42 percent, felt that people only sometimes receive a\nfair outcome in state courts (see table 2). Forty percent of respondents felt that people always (3.1\npercent) or usually (36.9 percent) receive a fair outcome. Only about 2 percent of respondents said\nthat people never get a fair outcome. However, when asked how the courts treat various groups,\nvery different opinions emerged (see table 3). Approximately 76 percent of respondents believe\nthat people without legal representation are treated worse by the courts. Low-income people\nwere also seen as likely to receive unfair treatment (64 percent). Over half of those surveyed (53\npercent) said non-English-speaking individuals were generally treated worse by courts. Forty-six\npercent of respondents believe African Americans are treated worse. Very few respondents believe\nthat whites (4.1 percent) or wealthy individuals (1.6 percent) are treated worse by the courts. In\nfact, most respondents (51 percent) said the wealthy receive \xe2\x80\x9cfar\xe2\x80\x9d better treatment in the courts.\n\nPublic Attitudes toward State Courts | 729\n\n\x0cGroup\n\n% Saying Group is Treated (Somewhat or Far) Worse\n\nPeople without a Lawyer\n\n76.2%\n\nLow-income People\n\n63.8\n\nNon-English Speaking People\n\n53.4\n\nAfrican Americans\n\n46.2\n\nHispanics\n\n45.6\n\nMiddle Class/Working Class People 16.9\nWhite People\n\n4.1\n\nWealthy People\n\n1.6\n\nTable 4. Group Treatment by the Courts\n\nRespondents were also asked about how politics influence judges\xe2\x80\x99 decisions in North Carolina.\nThey were asked if they agree or disagree that courts were free from political influence, that\njudges were influenced by political parties, and that judges were influenced by running for\nreelection (see table 4). Just over 75 percent of respondents disagreed or strongly disagreed that\ncourts were free from political influence. Seventy-five percent also agreed (somewhat or strongly)\nthat judges are influenced by political parties. Similarly, just over 75 percent agreed that judges are\ninfluenced by having to run for reelection.\nIt may be surprising that a survey can find that most residents not only have confidence in state\ncourts but also believe the courts treat certain groups unequally and that judges are influenced\nby political forces. Prior research has also found similar contradictions in public attitudes toward\nthe courts (Dougherty, Lindquist and Bradbury 2006; Silbey 1981). One reason for this is the\ncomplexity of public opinion. As noted earlier, the public can have diffuse support for the courts,\nwhere citizens are aware of the important role that courts play in our political systems. The public\ncan also have more specific opinions about certain actions, policies, and even candidates. A citizen\nmay not like a particular governor or a president, but she may have faith in the executive branch to\nfunction appropriately. Similarly, the public may be very aware that courts do not always produce\nfair outcomes but at the same time are relieved that the courts and the legal system are there to\ndeal with local and state problems and disputes and respect the difficult job that judges do.\nThe above tables and results present a simple univariate analysis of the public attitudes toward\nstate courts in North Carolina. Univariate analyses are useful for presenting a broad picture of\npublic opinion; however, further analysis is required to better understand public opinion. In the\nnext section, we will present findings from several ordered logistic regression models to explore\nmore carefully how and why respondents have different attitudes toward the courts.\n\n730 | Public Attitudes toward State Courts\n\n\x0cRegression Analysis: Examining Public Attitudes toward State\nCourts\nIn this section, we will use some of the survey questions discussed above as dependent variables\nin a series of regression models. These measures are all ordinal measures, meaning they measure\nattitudes using an ordered ranking, such as a four-point scale ranging from strongly agree to\nstrongly disagree or a five-point scale ranging from far better to far worse. Because these\nmeasures are ordinal, an ordered logistic regression is used. In the following regression models,\nthese measures (dependent variables) are regressed on a set of independent variables, which are\ndiscussed below. These independent variables are used to explain the variation in public attitudes\ntoward state courts.\nWhen deciding which independent variables may explain public attitudes, researchers often turn\nto different theories and models developed by prior scholars. A review of prior studies on public\nopinion of political institutions points to the following variables as important in understanding\nopinions toward state courts: respondent\xe2\x80\x99s race, political party and ideology, age, gender,\neducation level, prior experience with the courts, and knowledge of the courts. In addition, to\nthese commonly used independent variables, this study will include a variable that also indicates\nif a respondent lives in a rural county.\nRace of the Respondent: Race is one of the most studied variables when examining attitudes\ntoward the legal system. Minority groups often have different experiences and perceptions of\nthe role of courts and how courts apply the law across individuals from different ethnic and\nracial backgrounds. Much of the literature in the field of criminal justice has adopted a conflict\nperspective on the role of the criminal justice system in society. This perspective argues that laws,\nlaw enforcement, and the courts have been used to control subordinate/minority groups who\nare perceived to be a threat (Fernandez and Bowman 2004). Thus many studies have found that\nminorities are more distrustful of and less confident in the courts and law enforcement agencies\n(Berthelot, et al. 2018; Overby, et al. 2005). Here, we predict that African Americans, all things being\nequal, will have less positive attitudes toward state courts than whites.\nKnowledge of the Court: One might expect that more knowledge about the courts would make\nit easier for citizens to evaluate the judicial system and its performance. However, Harris (1993)\nnotes that many citizens probably obtain their knowledge of the courts through the media\xe2\x80\x94mostly\nlikely from television news and even crime dramas (Johnston and Bartels 2010; Rottman 2015; Selya\n1996). As the media and TV shows tend to focus on more controversial behavior, more knowledge\nof the courts may actually result in less trust in the legal system (Daniels 1973; Olson and Huth\n1998).\n\nPublic Attitudes toward State Courts | 731\n\n\x0cIn this study, we measure knowledge through a survey item that asks respondents, \xe2\x80\x9cHow much\nwould you say you know about the courts in North Carolina? A lot, some, a little, or nothing at all?\xe2\x80\x9d\nA dichotomous independent variable was created where respondents who self-reported that they\nhad a lot or some knowledge of the courts are coded as 1, and those respondents who reported\nthat they had little or no knowledge were coded as 0. There are problems in relying on selfreported levels of knowledge. Some respondents may be embarrassed to admit they know little\nabout a subject matter; however, the survey found that over 40 percent of those surveyed said they\nhad little to no knowledge about state courts.\nExperience with the Courts: Several studies test the independent effects of personal experience\nin the court system. It is difficult to predict how experience with the court may influence one\xe2\x80\x99s\nattitude. The court system works in a complex way, and participants may leave the courtroom\nfeeling far from satisfied (Walker, Richardson, Denyer and Williams 1972). Some studies have found\nthat prior experience with the courts is strongly associated with perceptions of the court (Kritzer\nand Voelker 1998). In fact, Walker (1977, 11\xe2\x80\x9312) found that prior interaction with the court was\na stronger predictor of support than income, age, or even race. Others have found that prior\nexperiences with courts had little or no correlation with an individual\xe2\x80\x99s support for the courts\n(Buckler, Cullen and Unnever 2007). Other studies have found that certain types of interactions\ncan influence one\xe2\x80\x99s attitude toward the courts positively or negatively. Boyum (1992) found that\njury duty in California was associated with increased levels of support for the courts. Benesh and\nHowell (2001) and Wenzel, Bowler, and Lanoue (2003) found that defendants were less supportive\nof the courts. In this study, we use two dichotomous variables, one that measured respondent\xe2\x80\x99s\njury service and one that measured respondent\xe2\x80\x99s status as a party to a case.\nEducation Level: Education is included in almost all studies of public attitudes toward state\ncourts because it is likely associated with a variety of other important underlying characteristics,\nincluding social status and knowledge of the court system. More educated residents will likely\nhave more information about the legal system and the performance of courts. More educated\nrespondents are also more likely to be concerned about inequalities in the political system (McCall\nand Kenworthy 2009). Education is measured using a dummy variable that indicates whether a\nrespondent has a college or graduate or professional degree (coded as 1) or not (coded as 0).\nParty Identification and Ideology: Although it may seem intuitive that ideology and partisanship\nare related to attitudes toward the courts, several studies found no correlation between court\nsupport and ideology or partisanship. Caldeira and Gibson (1992) argue that since most measures\nof support for the courts measure diffuse support, and diffuse support is so widespread across\ndifferent individuals, ideology should not be related to such measures. Perhaps this is the reason\nmost studies examining public opinion on state courts do not include an ideology measure in their\nanalysis. Instead, most studies use party identification. Scholars may believe that partisanship is\nmore important to understanding public opinion of the courts because the selection of judges\n732 | Public Attitudes toward State Courts\n\n\x0chas become such a partisan issue among politicians and elected officials (Bonica and Sen 2017).\nResearch has suggested that Democrats have a more favorable opinion of the US Supreme Court\nthan Republicans, and this may hold true for state courts as well (Cann and Yates 2008).\nIt should be noted that party identification is often correlated with ideology, but in the South,\nthere are still conservative Democrats who have not switched over to the Republican Party. These\nDemocrats are often called Dixiecrats. Because of this, we include two dichotomous variables\nthat indicate whether a respondent is a self-identified Democrat or a Republican, and we include\na scale to measure self-reported ideology that ranges from 1 (extremely liberal) to 7 (extremely\nconservative).\nSex: On average, survey research has shown that men and women differ on a wide range of\npolitical attitudes. Kelleher and Wolak (2007) found that women were typically more confident\nin state courts then men; however, Cann and Yates (2008) found that women had less support\nfor courts than men. One might theorize that Cann and Yates\xe2\x80\x99s finding that women were less\nsupportive of courts than men could be caused by women\xe2\x80\x99s greater concern with crime and their\nbelief that courts have in the past been too lenient on criminals (Myers 1996). In our study, we\ninclude a dichotomous independent variable where women are coded as 1 and men are coded as\n0.\nAge: Younger citizens tend to be more skeptical of government institutions than older citizens\n(Kelleher and Wolak 2007). There are a variety of reasons younger people have different attitudes\nthan older individuals. First, younger respondents have had less time to complete their education,\nsuggesting they may have less knowledge of court systems and their performance. Furthermore,\nyounger respondents are less likely to have had experience with the courts. In addition, younger\nrespondents tend to be more concerned with social justice issues (Overby, et al. 2004). We include\nage as an independent variable in each of the regression models.\nRural County: We include a county-level variable that indicates whether a respondent in our\n3\n\nsurvey lives in a rural county. Huckfeldt argued that \xe2\x80\x9cpolitical opinions and behavior of individuals\n\n3. When including a county-level measure (rather than an individual-level measure, such as race or\neducation), the assumption is that respondents within a county are more similar to one another than\nthey are to individuals in a different county. For example, in this study we believe that rural county\nresidents are more like each other than they are to people living in urban or suburban counties. In\nstatistical terms, this means that there are correlations between observations within counties\n(clusters), and this can create estimation problems when conducting a regression analysis. This can\nbe corrected by making adjustments when estimating the standard errors of the regression\ncoefficients. Many statistical software packages allow for estimating cluster-robust standard errors\nPublic Attitudes toward State Courts | 733\n\n\x0ccannot be understood separately from the environment within which they occur\xe2\x80\x9d (1987, 1). Glick\n(2004) suggests that courts in urban areas tend to deal with more serious and controversial cases\nthan courts in rural areas. In addition, rural courts have fewer judges, and there may be a better\nchance that the public is aware of who judicial candidates are in rural areas. McKenzie, Rugeley,\nBailey, and McKee (2017) also found that rural residents tended to know more about local courts\nand judges. For these reasons, we predict that respondents living in rural areas will tend to view\nthe state court system more favorably.\n\nStatistical Findings: What Variables Explain Public Attitudes\ntoward State Courts?\nTable 5 shows the results of two ordered logistic regressions. Model 1 uses the dependent variable\nthat measures a respondent\xe2\x80\x99s \xe2\x80\x9cconfidence\xe2\x80\x9d in the North Carolina courts. The explanatory variables\nrace, knowledge of the courts, experience as a jury member, education, party identification, sex,\nage, and living in a rural county were not associated with confidence at a statistically significant\nlevel. One of the most interesting findings was that race was not associated with confidence in\nthe courts. This was somewhat surprising given that so many studies have found a correlation\nbetween race and public opinion toward the courts at both the federal and state levels. However,\nsome scholars have noted that blacks and whites generally have a basic level of diffuse support\nfor the courts\xe2\x80\x99 legitimacy and that differences only emerge when asking more specific courtperformance questions (Overby, et al. 2004).\n\nto adjust for clustering. All of the regression models in the next section are estimated using this\ntechnique.\n734 | Public Attitudes toward State Courts\n\n\x0cIndependent\nVariables\n\nDependent Variable - Model 1 - Confidence in State\nCourts - Not at all Confident to Very Confident\n\nDependent Variable - Model 2 - Fair\nOutcome in Court - Never to Always\n\nAge\n\n0.001\n(0.004)\n\n0.006+\n(0.004)\n\nWhite\n\n0.461\n(0.416)\n\n0.965***\n(-0.279)\n\nBlack\n\n-0.046\n(0.364)\n\n0.123\n(0.312)\n\nFemale\n\n-0.120\n(0.115)\n\n-0.279***\n(0.107)\n\nIdeology (7\npoint scale)\n\n0.115***\n(0.044)\n\n0.089*\n(0.044)\n\nDemocrat\n\n0.060\n(0.158)\n\n0.222+\n(0.131)\n\nRepublican\n\n-0.097\n(0.119)\n\n0.132\n(0.141)\n\nCollege\n\n0.166\n(0.154)\n\n0.450***\n(0.146)\n\nJury\nExperience\n\n-0.010\n(0.171)\n\n0.046\n(0.117)\n\nDefendant\nor Plaintiff\n\n-0.650***\n(0.156)\n\n-0.492***\n(0.145)\n\nKnowledge\nof Courts\n\n0.131\n(0.114)\n\n-0.019\n(0.136)\n\nRural\nCounty\n\n-0.054\n(0.151)\n\n-0.167\n(0.152)\n\nN (# of\n1011\nrespondents)\n\n1133\n\n# Countries\n\n89\n\n91\n\n0.021\n\n0.041\n\n2\n\nPseudo R\n\nTable 5. Ordered Logistic Regression\n+p<0.10, *p<0.05, **p<0.01, ***p<0.001\n\nOnly two independent variables in model 1 were associated with confidence in state courts. A\nrespondent\xe2\x80\x99s ideology was positively associated with the dependent variable. That means that\nrespondents with higher scores in our seven-point scale (more conservative) tended to have more\nconfidence in the courts in North Carolina. This is an interesting finding, since prior studies have\nfound that conservatives tend to be less trusting of the government and especially of the US\nSupreme Court (Cook and Gronke 2005). Yet conservatives in our sample were more confident in\nstate courts than liberals.\nPublic Attitudes toward State Courts | 735\n\n\x0cNo other study we reviewed found such a finding, for the most part because studies did not\ntypically include ideology as an independent variable when examining public attitudes toward\nstate courts. Our study shows that for North Carolina, ideology is an important variable in\nunderstanding support for state courts. Curry and Romano (2018) suggest that ideology and\nideological cues help create a connection between the courts and the public and help increase\naccountability.\nOur regression models also include variables measuring prior experience with the courts. Like\nother studies, such as Benesh and Howell (2001) and Wenzel, Bowler, and Lanoue (2003), our\nstudy found that individuals who have experience as a defendant or a plaintiff tended to have less\nconfidence in the courts. Unlike Boyum (1992), who found that jury duty in California was linked\nto increased levels of support for the courts, we found no relationship between jury duty and\nconfidence in the courts in North Carolina.\nModel 2 uses the same independent variables to explain variation in perceptions of fairness in\nthe North Carolina court system. Respondents were asked, \xe2\x80\x9cHow often do people receive fair\noutcomes when they deal with the courts? Always, usually, sometimes, seldom, or never?\xe2\x80\x9d This\ndependent variable is not as commonly used by scholars as the \xe2\x80\x9cconfidence\xe2\x80\x9d question. This\n\xe2\x80\x9cfairness\xe2\x80\x9d variable measures more specific support for courts. The results for model 2 are different\nfrom model 1 and show that whites are more likely to believe the courts usually treat people fairly.\nRace was not an important factor in explaining general confidence in courts in model 1, but race\ndoes matter when looking at a more specific question about court performance. This supports\nfindings from prior research in Mississippi by Overby et al. (2004), which found that race mattered\nfor specific support but not for diffuse support for courts. Conservatives also tended to believe\ncourts produced fair outcomes. Similarly, more-educated respondents were also more likely to\nbelieve the courts were fair. Women were more likely to believe that state courts seldom treat\npeople fair; so were people who had been a defendant or a plaintiff in a courtroom.\nIt is important to know that women, African Americans, and residents with prior experience with\nthe courts were more likely to believe the courts were not always fair. When different groups\nof residents have different levels of trust in the courts, it calls into question whether courts are\nserving all interests and individuals in society. Even if these differences in trust are unfounded,\nsuch beliefs may diminish the legitimacy of the courts.\n\n736 | Public Attitudes toward State Courts\n\n\x0cIndependent\nVariable\n\nDependent Variables\n- Far Worse (1) to Far\nBetter (5) - Model 3 Low Income\n\nDependent Variables Far Worse (1) to Far\nBetter (5) - Model 4 African Americans\n\nDependent\nVariables - Far\nWorse (1) to Far\nBetter (5) - Model 5\n- Whites\n\nDependent Variables\n- Far Worse (1) to Far\nBetter (5) - Model 6 Hispanics\n\nAge\n\n0.002\n(0.003)\n\n0.002\n(0.003)\n\n-0.001\n(0.003)\n\n0.009*\n(0.004)\n\nWhite\n\n0.426\n(0.303)\n\n0.209\n(0.315)\n\n-0.650*\n(0.295)\n\n-0.057\n(0.329)\n\nBlack\n\n-0.690+\n(0.390)\n\n-0.744*\n(0.338)\n\n0.739**\n(0.279)\n\n-0.331\n(0.375)\n\nFemale\n\n-0.065\n(0.122)\n\n-0.137\n(0.124)\n\n-0.154\n(0.116)\n\n-0.299*\n(0.146)\n\nIdeology (7\npoint scale)\n\n0.224***\n(0.038)\n\n0.294***\n(0.037)\n\n0.290***\n(0.037)\n\n0.237***\n(0.039)\n\nDemocrat\n\n-0.072\n(0.168)\n\n-0.111\n(0.155)\n\n0.188\n(0.153)\n\n0.006\n(0.133)\n\nRepublican\n\n0.082\n(0.136)\n\n0.207\n(0.133)\n\n0.003\n(0.160)\n\n0.204\n(0.136)\n\nCollege\n\n-0.263**\n(0.092)\n\n-0.613***\n(0.113)\n\n0.211+\n(0.119)\n\n0.425***\n(0.121)\n\nJury\nexperience\n\n-0.065\n(0.114)\n\n-0.216\n(0.161)\n\n-0.177+\n(0.102)\n\n-0.015\n(0.112)\n\nDefendant\nor Plaintiff\n\n-0.421**\n(0.144)\n\n-0.216\n(0.161)\n\n-0.267*\n(0.116)\n\n-0.138\n(0.118)\n\nKnowledge\nof Courts\n\n0.135\n(0.108)\n\n-0.031\n(0.116)\n\n-0.165\n(0.144)\n\n0.027\n(0.133)\n\nLive in Rural\nCounty\n\n0.589***\n(0.155)\n\n0.423**\n(0.140)\n\n-0.473***\n(0.133)\n\n0.609***\n(0.158)\n\nN (# of\n1051\nrespondents)\n\n1043\n\n1049\n\n980\n\n# of\ncountries\n\n91\n\n91\n\n90\n\n87\n\n0.06\n\n0.077\n\n0.09\n\n0.05\n\n2\n\nPseudo R\n\nTable 6. Ordered Logistic Regression - Court Treatment of Groups\n+p<0.10, *p<0.05, **p<0.01, ***p<0.001\n\nTable 6 presents the results of a set of ordered logistic regression models that use dependent\nvariables that measure the beliefs about how state courts treat specific groups. These dependent\nvariables are based on a survey item that asks respondents to evaluate if a particular group\nreceives far better, somewhat better, the same, somewhat worse, or far worse treatment in the\nPublic Attitudes toward State Courts | 737\n\n\x0cstate courts. The most consistent finding was how ideology was related to perceptions of court\ntreatment of different groups. Conservatives were more likely to believe the courts treat lowincome people, African Americans, and Hispanics better and were more likely to believe that\nwhites were treated worse. This is not necessarily a surprising finding, but it is an important\nfinding because very few studies on state courts use ideology as an independent variable.\nLiving in a rural county was also consistently associated with the four dependent variables. Like\nconservative respondents, respondents living in rural counties were more likely to believe the\ncourts treat low-income people, African Americans, and Hispanics better and treat whites worse.\nThis means that even when controlling for a respondent\xe2\x80\x99s race, ideology, partisan identification,\nand other characteristics (independent variables), we found that individuals living in a rural county\ntend to evaluate North Carolina courts very differently. These regional and geographic differences\nare highly relevant in state politics and the state court system. Elected officials, including judges,\nare elected within certain districts. Differences between rural and urban counties might produce\ndistrict elections that select very different judges and may produce different outcomes (Fernandez\nand Bowman 2004). Furthermore, when district lines are redrawn every ten years, officials may\nattempt to engage in gerrymandering to influence electoral outcomes.\nRace was found to be associated with beliefs about group treatment. As we predicted, African\nAmerican respondents were more likely to believe whites were treated better and that blacks were\ntreated worse. The education level of a respondent was also associated with different perceptions\nof court treatment of groups. College-educated respondents were more likely to say that lowincome people, African Americans, and Hispanics are treated worse by courts. This is perhaps\nbecause college-educated individuals are more likely to have learned about racial disparities in the\ncriminal justice system.\nPeople with experience as a defendant in court were also more likely to believe courts treat\nlow-income defendants worse but were also more likely to believe whites were treated worse\nas well. Not all studies have found that prior experience with the courts matters. For example,\nBerthelot, McNeal, and Baldwin (2018) found that experience with the courts did not have a\nstatistically significant relationship with attitudes toward state courts. Our study highlights how\nit is important to differentiate between types of experience, since jury duty is very different from\nbeing a defendant or a plaintiff in court.\nIn table 6, age and sex (being identified as female) were only found to be associated with beliefs\nabout court treatment of Hispanics (see model 6). Older respondents tended to believe Hispanics\nwere treated better, compared to younger respondents. Women tended to feel the opposite,\nbelieving that Hispanics are treated worse by the courts in North Carolina. Although modest in\nsize, the Hispanic population in southern states is seeing some of the fastest growth (Fernandez\nand Dempsey 2017). Race relationships in the South have generally focused on white-and-black\n\n738 | Public Attitudes toward State Courts\n\n\x0cdynamics. Future research in southern state politics will need to examine public attitudes toward\nthe growing Hispanic population (Peralta and Larkin 2011).\nAs noted earlier, most surveys ask questions that provide respondents with an ordered set of\nchoices for a response: strongly agree, agree, and so on. This type of ordinal measure requires\nspecial regression models for analysis, but the coefficients produced by ordered logistic\nregression are not easily interpreted outside of looking at statistical significance and the sign,\nwhich indicate whether the independent variable is positively or negatively related to the\ndependent variable. To better understand the relationship between the independent variables and\nthe dependent variable (public attitudes toward the state courts), researchers often compute the\nprobabilities of observing a specific value of the dependent variables (e.g., strongly disagree) given\na set of values for the independent variables.\nFor example, using the logistic regression coefficients in model 4 in table 6, we can calculate the\nprobability that a person says courts treat blacks far worse given that the respondent is a male\nwho considers himself neither black nor white but some other race, is fifty-three years of age (the\naverage in the sample), has not graduated college, is moderate in ideology (value 4), is neither a\nDemocrat nor a Republican (e.g., Independent), has never served on a jury or been a plaintiff or\ndefendant in court, and lives in a suburban or urban county. The probability of answering \xe2\x80\x9cfar\nworse\xe2\x80\x9d for the hypothetical respondent is 0.13, or 13 percent. This is presented in table 7 under\nthe \xe2\x80\x9cOverall Probability.\xe2\x80\x9d We can then change one of the values of an independent variable (e.g.,\nbeing black) and recalculate the probabilities of giving the same answer (blacks are treated far\nworse). Table 7 presents these calculated probabilities along with predicted probabilities when\nmaking the hypothetical respondent above white, then a rural resident, then a college-educated\nindividual, and then extremely conservative. These probabilities tell us that being black increases\nthe probability of answering \xe2\x80\x9cfar worse\xe2\x80\x9d by about 0.10, and graduating college increases the\nprobability by 0.08, and moving from a moderate ideology to an extremely conservative ideology\ndecreases the probability by about \xe2\x88\x920.07.\nVariable\n\nChange in\nValue\n\nFar\nWorse\n\nSomewhat\nWorse\n\nThe\nSame\n\nSomewhat\nBetter\n\nFar\nBetter\n\nOverall\nProbabilities\n\n-\n\n0.130\n\n0.344\n\n0.391\n\n0.117\n\n0.019\n\nTable 7a. Change in Probabilities Given a Change in Value for a Specific Independent Variable\n\nBlack\n\n0 to 1 .102\n\n.074\n\nWhite\n\n0 to 1 -.025\n\n-.028 .030\n\nRural\n\n0 to 1 -.040 -.061\n\nCollege 0 to 1 -.071\n\n-.128\n\n-.110 -.057 .010\n.019\n\n.004\n\n.043\n\n.048\n\n.010\n\n060\n\n.113\n\n.026\nPublic Attitudes toward State Courts | 739\n\n\x0cTable 7b. Marginal Effects on the Probabilities of Beliefs about Court Treatment of Blacks (using Coefficients in Model\n4 in Table 6)\n\nIn addition, we can plot the change in the predicted probabilities for all the values in the ideology\nmeasure ranging from 1 (extremely liberal) to 7 (extremely conservative) to visualize how this\nimportant variable is related to public attitudes toward the courts. Figure 1 shows how ideology\ninfluences the probability of answering that African Americans are treated worse by the state\ncourts. The figure presents results for both college-educated and non-college-educated\nrespondents. Ideology is clearly related to beliefs of how state courts treat blacks. Liberal\nrespondents are more likely to say blacks are treated worse. Furthermore, we can see how a\ncollege education also influences attitudes; however, the differences between college-educated\nand non-college-educated respondents are less visible once a respondent is extremely\nconservative. Extremely conservative respondents tend to have similar perceptions of how blacks\nare treated whether they have a college degree or not.\n\nFigure 1. Predictive Margins for Beliefs How Blacks are Treated\n\nDiscussion\nAccording to Olson and Huth (1998), public opinion regarding state courts has been of low interest\nto most pollsters. That is unfortunate given the influence courts have on the lives of citizens.\n\n740 | Public Attitudes toward State Courts\n\n\x0cPublic opinion research is valued because surveys help promote democracy and accountability by\nproviding \xe2\x80\x9csystematic information on the preferences of the citizenry\xe2\x80\x9d (Asher 2012, 26).\nThe earliest survey that asked about state courts was conducted in the 1970s and found that the\npublic was not very satisfied with the courts (Rottman 2015). Similarly, many legal experts in the\n1960s saw state courts as slow and inefficient and saw many state court judges as unqualified\n(Hall 1999). But starting in the 1970s, state and local courts became consolidated, better funded,\nand better managed. Hall argues that most state courts have been transformed into \xe2\x80\x9chighly\nprofessionalized institutions\xe2\x80\x9d (1999, 114).\nThis study finds that the public is not unsatisfied with the state courts in North Carolina and\nthat the public sees state courts in a more positive light than the media, the federal government\nin general, the US Supreme Court, and even local public schools. These findings do not seem to\nsupport arguments that \xe2\x80\x9ca crisis of public confidence in the American judicial system is at hand\xe2\x80\x9d\n(Selya 1996, 909). Having said that, the findings do show that the public believes the courts do not\nalways treat people fairly. Although most respondents, regardless of background, have a general\nlevel of confidence in state courts, respondents are also keenly aware that not all groups are\ntreated fairly by the courts. The contradiction in having confidence in political institutions but also\nunderstanding that these political institutions are influenced by politics and other external forces\nis perhaps a reflection of the pragmatic approach many citizens have to our democratic system.\nThere is broad support for our political institutions even though we know they are imperfect.\nThese contradictions and the complexity of public attitudes toward the legal system can only be\nfleshed out when several different types of questions are used to measure the public\xe2\x80\x99s perceptions\nof political institutions. Many studies have found that voters tend not to have much confidence\nin Congress, but they typically have favorable opinions of their representatives in Congress.\nDougherty, Lindquist, and Bradbury (2006) found that different independent variables were\nassociated with different measures of support for courts in Georgia. A measure that simply asks\nrespondents about confidence in the courts might only measure the public\xe2\x80\x99s overall respect and\ndeference to the legal system. General questions of confidence do not capture the real differences\nin opinions that some groups have about the actions and behaviors of state courts. For example,\nOverby et al. (2004) found that blacks and whites in Mississippi had similar assessments of state\ncourts when asked about diffuse support for the courts.\nHowever, the similarities between blacks and whites disappear when specific questions are asked\nabout how courts actually work and perform. In our survey, white and black respondents were\nvery similar when it comes to confidence in state courts in North Carolina but were very different\nwhen asked about fair treatment by the courts. Therefore, it is not surprising that we found very\ndifferent results when we examined attitudes toward confidence in the courts, fairness of the\ncourts, and how courts treat different groups. Specific question wording in a survey item captures\nhow respondents evaluate state courts in different ways. Understanding how different groups\nPublic Attitudes toward State Courts | 741\n\n\x0cview the fairness of the legal system is critical in helping keep the courts accountable to all its\ncitizens and ensuring that court rulings are seen as legitimate by all groups.\nNo single study can capture all the factors that influence a person\xe2\x80\x99s opinion about a court system.\nIn our study, we found that ideology was one of the most consistent predictors of attitudes toward\nthe court. This is not surprising given that political science often defines ideology as a set of\ncore beliefs and principles about how politics and government should work (Knight 2006). It is\nsurprising how few studies include ideology in the statistical models used to examine opinions\non state courts. Our review of prior studies also found that few studies examine how a person\xe2\x80\x99s\nenvironment may influence his or her beliefs about courts. We found that individuals living in\nrural counties have different perceptions of the courts. Even when controlling for ideology, rural\nresidents are more likely to believe that people of low income, blacks, and Hispanics are treated\nbetter in the courts and whites are treated worse. This finding highlights the importance of where\npeople live in understanding public opinion. As Lyndon Johnson once said, \xe2\x80\x9cTell me where a man\ncomes from, how long he went to school, and where he worships on Sundays, and I\xe2\x80\x99ll tell you his\npolitical opinions\xe2\x80\x9d (Morone and Kersh 2019, 206). Other environmental variables can be included\nin future research, including county crime rates, median income of a county, or the percent of a\ncounty population that is African American or Latino.\nAs noted, there is plenty of room for more research on state courts. The prominence and influence\nof state courts is expanding. Individuals living in the United States are governed and protected by\na system of dual constitutionalism. Their rights are protected by both the US Constitution and the\nconstitution of the state in which they reside. Recent decades have seen a new judicial federalism\nwhere state courts are increasingly using state laws and state constitutions to determine the\ndegree to which individual rights and liberties are protected\xe2\x80\x94and even to secure rights not\narticulated by the US Constitution (Tarr 1996).\nFurthermore, state courts have seen important changes in their organization and how judges are\nselected. Just in North Carolina in the past ten years, the selection of judges has changed from\npartisan, to nonpartisan, and then back to partisan elections. What kind of effect has this had on\npublic perceptions of the state courts? Around the country, more women and minorities have been\nelected or appointed to judicial positions in state courts. How has this diversity in the court system\ninfluenced public perceptions?\nHow the public perceives the courts is an important field of study given the growing caseload\nstate courts manage. As Kelleher and Wolak argue, \xe2\x80\x9ctrust and confidence in government is\nconsequential. People are more likely to comply with laws when they have confidence in\ngovernment\xe2\x80\x9d (2007, 707). Public confidence is perhaps even more important for the courts because\nthey often lack enforcement powers. As Alexander Hamilton wrote in Federalist 78 in reference to\nthe federal judiciary, the courts have \xe2\x80\x9cno influence over either the sword or the purse. . . . It may\ntruly be said to have neither FORCE nor WILL, but merely judgment.\xe2\x80\x9d This applies to state courts\n742 | Public Attitudes toward State Courts\n\n\x0cas well, who often rely on their perceived legitimacy in hopes that other branches of government\nand the public abide by their rulings.\n\nAppendix: Survey Question Wording\nIntroductory statement. Now I would like to ask you some questions about the North Carolina\ncourt system. This system includes the state supreme court, court of appeals, superior courts, and\ndistrict courts.\nConfidence in institutions. First, I\xe2\x80\x99d like to know how much confidence you have in the following\npublic institutions using the scale of very confident, somewhat confident, not very confident, or\nnot at all confident. In general, how would you rate your confidence in the following (institutions\nrotated randomly): your local public schools, your local police or sheriff, the media, the US\nSupreme Court, the federal government in Washington, the North Carolina state courts?\nFairness of courts. How often do people receive fair outcomes when they deal with the courts?\nAlways, usually, sometimes, seldom, or never?\nKnowledge of courts. How much would you say you know about the courts in North Carolina? A\nlot, some, a little, or nothing at all?\nExperience with courts. I\xe2\x80\x99d like to ask you some questions about your personal experiences\nwith the North Carolina state court system (jury question is first; defendant/plaintiff and testify\nrotated randomly): Have you ever served on a jury? Have you ever been a defendant or a plaintiff\nin a court case? Have you ever testified as a witness in a court proceeding?\nTreatment of different groups. I would like to read you a short list of groups of people. For each,\nplease tell me if you think the group receives far better, somewhat better, the same, somewhat\nworse, or far worse treatment in the state courts (groups rotated randomly): low-income people,\nmiddle-class/working-class people, wealthy people, people who have no lawyer representing\nthem, non-English-speaking people, white people, African Americans, Hispanics.\nPolitical influence on courts. Do you strongly agree, agree, disagree, or strongly disagree with\nthe following statements (statements rotated randomly): North Carolina courts are free from\npolitical influences, judges\xe2\x80\x99 decisions are influenced by political parties, and judges\xe2\x80\x99 decisions are\ninfluenced by the fact they must run for election.\nDemographic Questions\nPublic Attitudes toward State Courts | 743\n\n\x0c\xe2\x80\xa2 Race. For statistical purposes only, could you please tell me your race or ethnic background?\n\xe2\x80\xa2 Party ID. Generally speaking, do you usually think of yourself as a Democrat, Republican,\nIndependent, or something else?\n\xe2\x80\xa2 Ideology. When it comes to politics, do you usually think of yourself as liberal, moderate,\nconservative, or haven\xe2\x80\x99t you thought much about this?\n\xe2\x80\xa2 Education. How much school have you completed?\n\xe2\x80\xa2 Age. Do you mind if I ask how old you are (continuous variable recoded for presentation)?\n\xe2\x80\xa2 Gender. Was the respondent male or female (determined by the interviewer)?\nThe full list of survey items and their results and cross tabulations can be found at\nhttps://www.elon.edu/u/elon-poll/wp-content/uploads/sites/819/2019/02/\n111915_ElonPoll_CourtsReport.pdf\n\nReferences\nAsher, Herbert. 2012. Polling and the Public. What Every Citizen Should Know. 8th edition.\nWashington D.C., CQ Press. (\xe2\x86\xb5 Return)\nBerkson, Larry C. 1980. \xe2\x80\x9cJudicial Selection in the United States: A Special Report.\xe2\x80\x9d Judicature 64:\n176\xe2\x80\x93193. Updated by Rachel Caufield and Malia Reddick (2010). (\xe2\x86\xb5 Return)\nBerlin, Michael M. 2013. \xe2\x80\x9cCourts.\xe2\x80\x9d In Encyclopedia of Street Crime in America, ed. Jeffrey Ross,\n92\xe2\x80\x9396. Los Angeles: Sage Publications. (\xe2\x86\xb5 Return)\nBenesh, Sara C. 2006. \xe2\x80\x9cUnderstanding Public Confidence in American Courts.\xe2\x80\x9d Journal of Politics\n68 (3): 697\xe2\x80\x93707. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nBenesh, Sara C., and Susan E. Howell. 2001. \xe2\x80\x9cConfidence in the Courts: A Comparison of Users and\nNon\xe2\x80\x90Users.\xe2\x80\x9d Behavioral Sciences & the Law 19 (2): 199\xe2\x80\x93214. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nBerthelot, Emily R., Brittani A. McNeal, and Julie Marie Baldwin. 2018. \xe2\x80\x9cRelationships between\nAgency-Specific Contact, Victimization Type, and Trust and Confidence in the Police and\nCourts.\xe2\x80\x9d American Journal of Criminal Justice 43(4): 768\xe2\x80\x93791. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3)\n\n744 | Public Attitudes toward State Courts\n\n\x0cBonica, Adam, and Maya Sen. 2017. \xe2\x80\x9cThe Politics of Selecting the Bench from the Bar: The Legal\nProfession and Partisan Incentives to Introduce Ideology into Judicial Selection.\xe2\x80\x9d The Journal of\nLaw and Economics 60 (4): 559\xe2\x80\x93595. (\xe2\x86\xb5 Return)\nBoyum, Keith O. 1992. \xe2\x80\x9cWhat Is Known About General Citizen Attitudes and Knowledge About the\nCourts.\xe2\x80\x9d Report to the Judicial Council of California. San Francisco: Administrative Office of the\nCourts of California. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nBrennan, William J. 1966. \xe2\x80\x9cState Supreme Court Judges versus United States Supreme Court\nJustice: A Change in Function and Perspective.\xe2\x80\x9d University of Florida Law Review 29: 225\xe2\x80\x93237. (\xe2\x86\xb5\nReturn)\nBuckler, Kevin, Francis T. Cullen, and James D. Unnever. 2007. \xe2\x80\x9cCitizen Assessment of Local\nCriminal Courts: Does Fairness Matter?\xe2\x80\x9d Journal of Criminal Justice 35(5): 524\xe2\x80\x93536. (\xe2\x86\xb5 Return 1)\n(\xe2\x86\xb5 Return 2)\nCaldeira, Gregory A. 1991. \xe2\x80\x9cCourts and Public Opinion,\xe2\x80\x9d in The American Courts: A Critical\nAssessment, eds. John Gates and Charles Johnson, 303\xe2\x80\x93334. Washington, DC: Congressional\nQuarterly. (\xe2\x86\xb5 Return)\nCaldeira, Gregory A., and James L. Gibson. 1992. \xe2\x80\x9cThe Etiology of Public Support for the Supreme\nCourt.\xe2\x80\x9d American Journal of Political Science, 36(3): 635\xe2\x80\x93664. 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(\xe2\x86\xb5\nReturn)\nCurry, Todd A., and Michael K. Romano. 2018. \xe2\x80\x9cIdeological Congruity on State Supreme Courts.\xe2\x80\x9d\nJustice System Journal 39 (2): 139\xe2\x80\x93154. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3)\nDolbeare, Kenneth M. 1976. Trial Courts in Urban Politics: State Court Policy Impact and Functions\nin a Local Political System. New York: John Wiley & Sons. (\xe2\x86\xb5 Return)\nPublic Attitudes toward State Courts | 745\n\n\x0cDougherty, George W., Stefanie A. Lindquist, and Mark D. Bradbury. 2006. \xe2\x80\x9cEvaluating\nPerformance in State Judicial Institutions: Trust and Confidence in the Georgia Judiciary.\xe2\x80\x9d State\nand Local Government Review 38 (3): 176\xe2\x80\x93190. 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Caldeira, and Lester Kenyatta Spence. 2003. \xe2\x80\x9cThe Supreme Court and\nthe US Presidential Election of 2000: Wounds, Self-Inflicted or Otherwise?\xe2\x80\x9d British Journal of\nPolitical Science 33 (4): 535\xe2\x80\x93556. (\xe2\x86\xb5 Return)\nGlick, Henry R. 2004. \xe2\x80\x9cCourts: Politics and the Judicial Process.\xe2\x80\x9d In Politics in the American States: A\nComparative Analysis, 8th edition, eds. Virginia Gray and Russel Hanson, 232\xe2\x80\x93260. Washington,\nDC: CQ Press. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nHall, Melinda G. 1999. \xe2\x80\x9cState Judicial Politics: Rules, Structures, and the Political Game.\xe2\x80\x9d In\nAmerican State and Local Politics: Directions for the 21st Century, eds. Ronald Weber and Paul\nBrace, 114\xe2\x80\x93138. New York: Chatham House. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3)\nHarris, David A. 1993. \xe2\x80\x9cThe Appearance of Justice: Court TV, Conventional Television, and Public\nUnderstanding of the Criminal Justice System.\xe2\x80\x9d Arizona Law Review 35 (4): 785-837. (\xe2\x86\xb5 Return)\nHuckfeldt, R., & Sprague, J. (1987). Networks in Context: The Social Flow of Political Information.\nThe American Political Science Review, 81(4), 1197-1216. doi:10.2307/1962585 (\xe2\x86\xb5 Return)\nHusser, Jason A., and Kenneth Fernandez. 2016. \xe2\x80\x9cGay Marriage Tends to be More Popular than\nSame-Sex Marriage.\xe2\x80\x9d Survey Practice 9 (3): 1\xe2\x80\x938. (\xe2\x86\xb5 Return)\nJohnston, Christopher D., and Brandon L. Bartels. 2010. \xe2\x80\x9cSensationalism and Sobriety: Differential\nMedia Exposure and Attitudes toward American Courts.\xe2\x80\x9d Public Opinion Quarterly 74 (2):\n260\xe2\x80\x93285. (\xe2\x86\xb5 Return)\nKastellec, Jonathan P. 2018. \xe2\x80\x9cHow Courts Structure State-Level Representation.\xe2\x80\x9d State Politics &\nPolicy Quarterly 18 (1): 27\xe2\x80\x9360. (\xe2\x86\xb5 Return)\nKelleher, Christine A., and Jennifer Wolak. 2007. \xe2\x80\x9cExplaining Public Confidence in the Branches\n746 | Public Attitudes toward State Courts\n\n\x0cof State Government.\xe2\x80\x9d Political Research Quarterly 60 (4): 707\xe2\x80\x93721. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5\nReturn 3)\nKnight, Kathleen. 2006. \xe2\x80\x9cTransformations of the Concept of Ideology in the Twentieth Century.\xe2\x80\x9d\nAmerican Political Science Review 100 (4): 619\xe2\x80\x93626. (\xe2\x86\xb5 Return)\nKritzer, Herbert M., and John Voelker. 1998. \xe2\x80\x9cFamiliarity Breeds Respect-How Wisconsin Citizens\nView Their Courts.\xe2\x80\x9d Judicature 82: 59\xe2\x80\x9364. (\xe2\x86\xb5 Return)\nMcCall, Leslie, and Lane Kenworthy. 2009. \xe2\x80\x9cAmericans\xe2\x80\x99 Social Policy Preferences in the Era of\nRising Inequality.\xe2\x80\x9d Perspectives on Politics 7 (3): 459\xe2\x80\x93484. (\xe2\x86\xb5 Return)\nMcKenzie, Mark J., Cynthia R. Rugeley, Daniel B. Bailey, and Seth C. McKee. 2017. \xe2\x80\x9cAmericans\xe2\x80\x99\nKnowledge of Their Local Judges.\xe2\x80\x9d Political Behavior 39 (2): 259\xe2\x80\x93277. (\xe2\x86\xb5 Return)\nMyers, Laura B. 1996. \xe2\x80\x9cBringing the Offender to Heel: Views on the Criminal Courts.\xe2\x80\x9d In Americans\nView Crime and Justice: A National Public Opinion Survey, eds. Timothy Flanagan and Dennis\nLongmire, 46\xe2\x80\x9361. Thousand Oaks, CA: Sage Publications. (\xe2\x86\xb5 Return)\nMorone, James A., and Rogan Kersh. 2019. By the People: Debating American Government, 4th\nedition. New York, NY: Oxford University Press. (\xe2\x86\xb5 Return)\nNational Center for State Courts. 2016. \xe2\x80\x9cNational Overview\xe2\x80\x9d Court Statistics Project.\nhttp://www.courtstatistics.org/NCSC-Analysis/National-Overview.aspx (\xe2\x86\xb5 Return)\nNational Center for State Courts. 2018. Annual Report. Williamsburg, VA: National Center for State\nCourts. http://www.ncsc.org (\xe2\x86\xb5 Return)\nNicholson-Crotty, Sean, and Kenneth J. Meier. 2002. \xe2\x80\x9cSize doesn\xe2\x80\x99t matter: In defense of singlestate studies.\xe2\x80\x9d State Politics & Policy Quarterly 2 (4): 411\xe2\x80\x93422. (\xe2\x86\xb5 Return)\nO\xe2\x80\x99Donnell, Guillermo A. 2004. \xe2\x80\x9cWhy the Rule of Law Matters.\xe2\x80\x9d Journal of Democracy 15 (4): 32\xe2\x80\x9346.\n(\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nOlson, Susan M., and David A. Huth. 1998. \xe2\x80\x9cExplaining Public Attitudes toward Local Courts.\xe2\x80\x9d The\nJustice System Journal 20 (1): 41\xe2\x80\x9361. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3) (\xe2\x86\xb5 Return 4) (\xe2\x86\xb5 Return\n5) (\xe2\x86\xb5 Return 6) (\xe2\x86\xb5 Return 7)\nOverby, L. Marvin, Robert D. Brown, John M. Bruce, Charles E. Smith Jr, and John W. Winkle III.\n2004. \xe2\x80\x9cJustice in Black and White: Race, Perceptions of Fairness, and Diffuse Support for the\nJudicial System in a Southern State.\xe2\x80\x9d Justice System Journal 25 (2): 159\xe2\x80\x93182. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return\n2) (\xe2\x86\xb5 Return 3) (\xe2\x86\xb5 Return 4) (\xe2\x86\xb5 Return 5)\n\nPublic Attitudes toward State Courts | 747\n\n\x0cOverby, L. Marvin, Robert Brown, John Bruce, Charles Smith, & John Winkle III. (2005). Race,\nPolitical Empowerment, and Minority Perceptions of Judicial Fairness. Social Science Quarterly,\n86(2), 444-462. Retrieved February 6, 2020, from www.jstor.org/stable/42956073 (\xe2\x86\xb5 Return)\nPeralta, J. Salvador, and George R. Larkin. 2011. \xe2\x80\x9cCounting Those Who Count: The Impact of Latino\nPopulation Growth on Redistricting in Southern States.\xe2\x80\x9d PS: Political Science and Politics 44 (3):\n552\xe2\x80\x9361. (\xe2\x86\xb5 Return)\nRottman, David, B. 2015. \xe2\x80\x9cWho Trusts the Trial Courts, To What Extent, and Why?\xe2\x80\x9d In Motivating\nCooperation and Compliance with Authority, eds. Brian Bornstein and Alan Tomkins, 117\xe2\x80\x93144.\nCham, Switzerland: Springer. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3) (\xe2\x86\xb5 Return 4)\nSelya, Bruce M. 1996. \xe2\x80\x9cThe Confidence Game: Public Perceptions of the Judiciary.\xe2\x80\x9d New England\nLaw Review 30: 909\xe2\x80\x93918. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nSilbey, Susan S. 1981. \xe2\x80\x9cMaking Sense of the Lower Courts.\xe2\x80\x9d Justice System Journal 6 (1): 13\xe2\x80\x9327. (\xe2\x86\xb5\nReturn 1) (\xe2\x86\xb5 Return 2)\nTarr, G. Alan. 1996. \xe2\x80\x9cNew Judicial Federalism in Perspective.\xe2\x80\x9d Notre Dame Law Review 72 (4):\n1097\xe2\x80\x931118. (\xe2\x86\xb5 Return)\nTroutman, Brian P. 2007. \xe2\x80\x9cParty Over-The Politics of North Carolina\xe2\x80\x99s Nonpartisan Judicial\nElections.\xe2\x80\x9d North Carolina Law Review 86 (6): 1762\xe2\x80\x931795. (\xe2\x86\xb5 Return)\nTyler, Tom R. and Edgar Allen Lind (1988). Critical issues in social justice. The social psychology of\nprocedural justice. Plenum Press. (\xe2\x86\xb5 Return)\nUnited States Courts. 2016. \xe2\x80\x9cJudicial Business.\xe2\x80\x9d https://www.uscourts.gov/statistics-reports/\njudicial-business-2016 (\xe2\x86\xb5 Return)\nVercellotti, Timothy. 2008. \xe2\x80\x9cHow Southern is the Old North State?: Public Opinion in North\nCarolina.\xe2\x80\x9d The New Politics of North Carolina, eds. Christopher Cooper and H. Gibbs Knotts,\n38\xe2\x80\x9360. Chapel Hill: University of North Carolina Press. (\xe2\x86\xb5 Return)\nWalker, Darlene. 1977. \xe2\x80\x9cCitizen Contact and Legal System Support.\xe2\x80\x9d Social Science Quarterly 58 (1):\n3\xe2\x80\x9314. (\xe2\x86\xb5 Return 1) (\xe2\x86\xb5 Return 2)\nWalker, Darlene, Richard J. Richardson, Thomas Denyer, and Oliver Williams. 1972. \xe2\x80\x9cContact and\nSupport: An Empirical Assessment of Public Attitudes toward the Police and the Courts.\xe2\x80\x9d North\nCarolina Law Review 51 (1): 43\xe2\x80\x9379. (\xe2\x86\xb5 Return)\nWenzel, James P., Shaun Bowler, and David J. Lanoue. 2003. \xe2\x80\x9cThe Sources of Public Confidence in\n\n748 | Public Attitudes toward State Courts\n\n\x0cState Courts: Experience and Institutions.\xe2\x80\x9d American Politics Research 31 (2): 191\xe2\x80\x93211. (\xe2\x86\xb5 Return 1)\n(\xe2\x86\xb5 Return 2) (\xe2\x86\xb5 Return 3) (\xe2\x86\xb5 Return 4)\nYates, Jeff. 2009. \xe2\x80\x9cOn the Future of State Courts Research.\xe2\x80\x9d Justice System Journal 30 (3): 302-306.\n(\xe2\x86\xb5 Return)\n\nClass Activities\nActivity 1\nResearch how the judges for the state supreme court in your state are selected. Describe how\nthese judges are selected. Are they elected through a nonpartisan election, are they appointed by\nthe governor, or are they selected through another method? How long is a state supreme court\njudge\xe2\x80\x99s term (e.g., four years)? Are there limits on the number of terms they can serve?\n\nRegardless of how your state selects judges, which method do you think is best in choosing judges\nfor state courts? Should the executive (e.g., the governor of a state) appoint state judges? Should an\nappointed panel of lawyers and nonlawyers make judicial recommendations? Should voters choose\nwho is best to serve as a state judge? If a state elects its judges, should those elections be partisan\n(a candidate\xe2\x80\x99s political party affiliations listed on the ballot) or should they be nonpartisan (no\nparty affiliations listed on the ballot)? Explain your answer.\n\nActivity 2\nUsing the internet, find a recent survey that asked respondents about their feelings or opinions\nabout courts. Provide the following information:\n1. What is the name of the organization that conducted or sponsored the survey?\n2. When was the survey conducted (provide specific date range surveys were collected)?\n3. What geographic area did the survey cover (e.g., the entire United States, a single state such\nas California)?\n4. What was the sample size of the survey (how many people did they reach)?\nPublic Attitudes toward State Courts | 749\n\n\x0c5. What was one of the questions they asked about courts?\n6. What do you think was the most interesting finding from the survey?\n\n750 | Public Attitudes toward State Courts\n\n\x0c30. Does the US Supreme Court Respond\nto Public Opinion?\nBEN JOHNSON AND LOGAN STROTHER\n\nDoes the Supreme Court respond to public opinion when it decides cases? This question has\nbeen the subject of much debate since the nation\xe2\x80\x99s founding, and it is still important today. A\nnonresponsive Court that imposes its policy preferences on the nation raises concerns about\nthe \xe2\x80\x9ccountermajoritarian difficulty\xe2\x80\x9d\xe2\x80\x94why should an unelected institution get to make binding\ndecisions in a democracy (Bickel 1962)? On the other hand, a responsive Court may not sufficiently\nprotect minority rights in the face of shifting majorities. This is one of the traditional defenses of\njudicial independence\xe2\x80\x94the inverse of \xe2\x80\x9cresponsiveness\xe2\x80\x9d: a court that is beholden to the public or\nthe legislature cannot be reasonably expected to neutrally enforce the rule of law (Breyer 1995).\nAlexander Hamilton put it this way in Federalist, no. 78:\n\nThe complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a\nlimited Constitution, I understand one which contains certain specified exceptions to the legislative\nauthority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like.\nLimitations of this kind can be preserved in practice no other way than through the medium of courts of\njustice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.\nWithout this, all the reservations of particular rights or privileges would amount to nothing.\n(Federalist, no. 78)\n\nThis question of judicial responsiveness is especially important as the Supreme Court plays an\nincreasingly prominent policy-making role in an era of intense partisan polarization (Lee 2015;\nKeck 2014).\nThe normative importance of this question aside, whether the Supreme Court responds to public\nopinion is an empirical question. Getting the answer to this empirical question right tells us\nwhich normative problem we face. For a long time, scholars have presented consistent empirical\nevidence that the Court does, in fact, track the public. In contrast, as we show below, these\nearlier studies consistently reported such a finding because they did not carefully inspect their\ndata and drew erroneous conclusions based on a time-bound finding. There is actually no good\nempirical evidence that the Supreme Court systematically responds to the will of the people.\nDoes the US Supreme Court Respond to Public Opinion? | 751\n\n\x0cWhile our analysis here certainly cannot (nor does it try to) prove that justices never care about the\npublic\xe2\x80\x99s preferences, we find no evidence to support the alternative proposition, that the Court\nconsistently responds to public opinion.\n\nWhy Would the Supreme Court Respond to the Public?\nBecause the Framers viewed judicial independence as crucial to the rule of law, they wrote several\nstructural protections for judicial independence into the Constitution. Supreme Court justices are\nappointed rather than elected, and they enjoy lifetime tenure (with the historically rare exception\nof removal via impeachment). Congress can alter the Court\xe2\x80\x99s jurisdiction, effectively preventing it\nfrom deciding certain cases, but it cannot force the Court to decide cases in any particular way.\nBy all appearances, justices take this structural separation from the public quite seriously. When\ngiving speeches and interviews, justices routinely argue that a fundamental purpose of the\nSupreme Court is to have a neutral decision-maker that can stand above the fray of partisan\npolitics (Glennon and Strother 2019; Strother and Glennon 2021). Take Justice Jackson\xe2\x80\x99s famous\nline from his opinion in West Virginia Board of Education v. Barnette: \xe2\x80\x9cThe very purpose of the\nBill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to\nplace them beyond the reach of majorities\xe2\x80\x9d (West Virginia Board of Education v. Barnette 1943, 638).\nMuch more recently, Justice Sotomayor voiced a similar view, but in even stronger terms, in an\ninterview on The Daily Show. When asked by John Stewart whether she or the Supreme Court\nconsiders public opinion when deciding cases, Sotomayor answered, \xe2\x80\x9cNo, I don\xe2\x80\x99t think there\xe2\x80\x99s a\n1\n\njudge on my Court and a judge that I\xe2\x80\x99ve met, actually, who responds to public opinion.\xe2\x80\x9d These\nsentiments are supported by the fact that public opinion is rarely mentioned in Supreme Court\nopinions (Marshall 1989).\nDespite these strong institutional protections for judicial independence, many studies in political\nscience have argued that the Supreme Court is in fact influenced by public opinion (Mishler\nand Sheehan 1993; Flemming and Wood 1997; McGuire and Stimson 2004; Giles, Blackstone, and\nVining 2008; Epstein and Martin 2010; Casillas, Enns, and Wohlfarth 2011; Hall 2014; Bryan and\nKromphardt 2016; Hall 2018; Black, Owens, Wedeking, and Wohlfarth 2020). Given the discussion\nabove about judicial independence and structural separation, this consistent finding in the\nliterature is striking. How can this be?\n\n1. Sonia Sotomayor, interview by John Stewart, The Daily Show, January 21, 2013, https://www.cc.com/\nvideo/a1f1ob/the-daily-show-with-jon-stewart-exclusive-sonia-sotomayor-extended-interviewpt-3.\n752 | Does the US Supreme Court Respond to Public Opinion?\n\n\x0cScholars have offered three main theories to try to explain this apparent relationship between\npublic preference and Court outputs. First is the Dahlian, or \xe2\x80\x9cRegime,\xe2\x80\x9d theory of judicial\nresponsiveness, which holds that each new Supreme Court justice is a creature of the dominant\ngoverning coalition that appointed her, because justices are nominated, vetted, and confirmed by\nthe coalition in power (Dahl 1957). On this view, the fact that justices are nominated and confirmed\nby elected officeholders is sufficient to moor the judiciary to the public will.\nThe second theory is commonly known as \xe2\x80\x9cdrift,\xe2\x80\x9d which holds that justices\xe2\x80\x99 preferences change\nover time. The basic idea here is that as time passes fashions evolve and people change, and\nbecause justices are people, they may well move along with the general public (Giles, Blackstone,\nand Vining 2008). Note that both of these theories concern indirect responsiveness, where the\nrelationship between public preferences and the Court\xe2\x80\x99s outputs are incidental, as opposed to\nintentional.\nThe third theory, in contrast, concerns direct responsiveness, wherein the justices are thought\nto be consciously considering and responding to the will of the people. This theory is known as\n\xe2\x80\x9cstrategic institutional maintenance,\xe2\x80\x9d and it holds that justices respond to the public to protect the\nCourt\xe2\x80\x99s institutional power and legitimacy (Casillas, Enns, and Wohlfarth 2011; Hall 2014). The basic\nidea is that if the Court bucks the public too often or too much, the public will lose confidence in\nthe Court. This would weaken the Court\xe2\x80\x99s ability to act effectively in the American political system,\nas the Court relies on its public legitimacy for the efficacy of its decisions (Hall 2014; Strother\n2019). That is, outside actors are less apt to comply with decisions handed down by an unpopular\nCourt (Hall 2011).\nEven among those who contend that the Court directly responds to the public, however, there is\nmuch disagreement as to how and why it does so (Epstein and Martin 2010; Johnson and Strother\n2021). The relationship has typically been found to be small (e.g., Stimson et al. 1995), except when\nit is large (McGuire and Stimson 2004); contemporaneous (Collins and Cooper 2016), except when\nit requires a significant time-lag (Mishler and Sheehan 1993); that it exists in all issue areas (Bryan\nand Kromphardt 2016), unless it exists only a few (Link 2015). There is considerable agreement that\ncase salience is a key mediating variable, but wide disagreement over how salience conditions the\nrelationship between public opinion and Court outputs. For example, Casillas, Enns, and Wohlfarth\n(2011) find that the Court is responsive to the public in nonsalient cases, but not in salient cases,\nwhile Hall (2014) and Bryan and Kromphardt (2016) find that the Court is responsive to the public\nin salient cases but not the nonsalient ones. To further complicate matters, Collins and Cooper\n(2016) argue that the Court responds to the public in both very high and very low salience cases,\nbut not to cases in the midrange of salience. These things, of course, cannot all be true.\nOur goal here is to clear up these assorted disagreements and confusions in the literature. To do\nso, we go back to the fundamentals of empirical best practice. We look closely at the data and walk\n\nDoes the US Supreme Court Respond to Public Opinion? | 753\n\n\x0cstep by step through the analytic process. In doing so, we aim to cut through the noise and do\njustice to this fundamentally important question in American politics.\n\nResearch Approach\nThe wide array of divergent empirical findings in the direct responsiveness literature is especially\npuzzling given that studies rely on the same data and measures to capture key concepts. This\nstate of affairs indicates that the contrasting findings are most likely attributable to modeling\nchoices; that is, to different functional forms and different sets of control variables. And to be\nsure, the cutting edge in the literature is typified by complex models with many right-hand-side\nvariables and, frequently, interaction terms. Put more simply, most of the models in this literature\nare extremely complex\xe2\x80\x94but the complexity is not always well justified, and the possible problems\nthese complexities can create are not often carefully checked. Sophisticated though they may be,\nthese models point us in different directions rather than illuminate a clear path forward.\nWe believe if the Supreme Court responds to public opinion, then evidence of that relationship\nshould appear in the simplest of models\xe2\x80\x94in the cross-tabs, so to speak. That is, if there is a real\nrelationship between public opinion and Supreme Court outputs, it should be evident before we\nbegin to add variables to the right-hand side of the equation (Achen 2005; Achen 2002; Lenz\nand Sahn 2020). For these reasons, we will seek evidence of this crucially important theoretical\nrelationship in parsimonious models, beginning with minimal specifications, and working outward\nfrom there. This approach will allow us to cut through the noise\xe2\x80\x94that is, the array of divergent\nfindings in the existing literature\xe2\x80\x94and build a solid base for empirical generalization.\nMany researchers wrongly assume that adding additional covariates to a statistical model of\nobservational data poses no harm. In reality, however, adding covariates can introduce a variety\nof biases, including amplification bias, posttreatment bias, and collider bias, among other ills\n(Montgomery, Nyhan, and Torres 2018; Lenz and Sahn 2020).\n\n2\n\nTo address these potential\n\nproblems, and to advance the cause of transparent science, Lenz and Sahn (2020) argue that\n3\n\nresearchers should present the minimal specification of their models. And in cases where\n\n2. These assorted biases can cause you to draw faulty inferences from your analyses.\n3. Minimal specifications have to be balanced against concerns of omitted variable bias\xe2\x80\x94that is, bias\nthat comes from correlation between the dependent variable, one or more independent variables,\nand the error term. Such bias arises in practice when a model when a determinant of the DV is\nomitted from the model. To address this, we discuss what we call the minimal theoretically justified\n754 | Does the US Supreme Court Respond to Public Opinion?\n\n\x0cstatistical significance relies on the inclusion of covariates, researchers should very clearly justify\neach covariate\xe2\x80\x99s inclusion and assess the robustness of the relationship against an array of model\nspecifications.\nTo summarize, best practices in empirical examination of observational data require us (1) to\nbegin with and to report minimally specified models\xe2\x80\x94that is, models only capturing the core\nnecessary variables of interest\xe2\x80\x94(2) to use only theoretically sound variables; and (3) to examine\nand validate any findings in all relevant subsets of the data. Scholars of judicial politics should\ntake these fundamental points of empirical practice seriously. For this reason, we take a step back\nfrom the cutting edge of research on this topic\xe2\x80\x94that is, from the tendency to assume that the\npresumed relationship between public opinion and the Supreme Court requires \xe2\x80\x9csophisticated\xe2\x80\x9d\nmodels with many (many) covariates to be observed\xe2\x80\x94and instead return to basics: Are there\nmeaningful correlations between public mood and the Supreme Court\xe2\x80\x99s outputs? And by the same\ntoken, we will add covariates piecemeal, and only when doing so is clearly justified on theoretical\ngrounds, and we will assess the robustness of our findings across a range of measures.\nTo be clear, the following analyses cannot possibly prove (or disprove) a causal relationship\nbetween public opinion and judicial outputs. This is because we have only observational data,\nand there is no institutional variation or differential \xe2\x80\x9ctreatment\xe2\x80\x9d to exploit that would allow us\nto do sound causal inference. Instead, we are addressing a more conservative question\xe2\x80\x94but one\nthat actually fits the data: do Supreme Court outputs correlate with public mood? This is a\nmore conservative question in the sense that many relationships (even important ones) are not\ncausal. Therefore, if we find strong evidence of a correlation between public opinion and Supreme\nCourt decisions, that would establish a meaningful correlation, though not necessarily a causal\nrelationship. If, on the other hand, we do not find good evidence of a correlation, then it is much\nharder, if not impossible, to sustain a theory of a causal relationship between public preferences\nand judicial decisions. Answering this question\xe2\x80\x94and doing so well\xe2\x80\x94is important, then, because\ndoing so will provide a solid foundation for further work on this important topic.\n\nAnalysis\nWe address this question using the same data and basic approaches that we find throughout\nthe literature. Like all studies in this literature, we draw on the Supreme Court Database to\nspecify the dependent variable\xe2\x80\x94case outcomes\xe2\x80\x94with liberal outcomes coded as one (1) and\n\nmodel in the sections below. See Clarke (2005) for discussion on dealing with omitted variable bias\nin empirical practice.\nDoes the US Supreme Court Respond to Public Opinion? | 755\n\n\x0c4\n\nconservative outcomes as zero (0). To capture our key independent variable, public opinion,\nwe use Stimson\xe2\x80\x99s (1999) \xe2\x80\x9cpublic mood\xe2\x80\x9d measure (hereafter, \xe2\x80\x9cmood\xe2\x80\x9d). The mood measure aims to\ncapture what Stimson calls \xe2\x80\x9cpolicy mood,\xe2\x80\x9d which is an estimate of the aggregate liberalism of\nthe American public\xe2\x80\x99s policy preferences derived from mass responses to thousands of survey\nquestions. We begin with only these two variables to specify minimal models, as discussed above.\nOther theoretically justified variables will be considered and added below; we discuss these as we\nget to them.\nBefore we go any further, we discuss two possible empirical strategies. Researchers should make\ninformed judgments about the data-generating process(es) underlying their data. In this case, we\nhave to think about the nature of our two key variables: Supreme Court decisions and public\nmood. A key question we have to answer is whether we think our observations of these variables\nare independent over time. In other words, is every term (or case) at the Supreme Court largely\nindependent of the term(s) before it? Is public opinion this month closely related to public opinion\nlast month? And so on. If we think the observations on these variables are closely related to past\nobservations of the same variable (we call this autocorrelation), then we need to adopt a \xe2\x80\x9ctimeseries\xe2\x80\x9d research strategy. On the other hand, if we think our observations are largely independent\nof one another, we would opt for a \xe2\x80\x9ccross-sectional\xe2\x80\x9d research design. In this body of research,\nscholars have been pretty divided as to the best approach, with numerous cross-sectional (e.g.,\nEpstein and Martin 2010; Hall 2014) and time-series (e.g., Casillas, Enns, and Wohlfarth 2011; Collins\nand Cooper 2016) studies. Since our goals are to (1) show there is no good evidence that the Court\nfollows public mood, and (2) to explain how earlier studies mistakenly found such a relationship,\nwe\xe2\x80\x99ll demonstrate both approaches in the following sections.\n\nCross-Sectional Approach\nWe start with the cross-sectional approach. Doing so raises another question, though\xe2\x80\x94what is the\nappropriate unit of analysis? That is, what are the units we should be studying? In this research\napplication, the units could be individual justices\xe2\x80\x99 votes in cases, Supreme Court decisions, or even\nthe term-level aggregate liberalism (i.e., the proportion of the cases in a given term decided in the\nliberal direction). And again, studies abound at all of these units of analysis. For that reason, we\nwill demonstrate the application of the best practices at both the term level and the decision level.\nWe will move stepwise through the analysis, following best practices. If we find evidence of a\n\n4. Note that this means when we aggregate to the term level, as we do in some of the analyses below,\nthat higher values will correspond to more liberal terms, and low values to more conservative terms.\n756 | Does the US Supreme Court Respond to Public Opinion?\n\n\x0crelationship we will rigorously interrogate it by seeing whether it exists in all subsets of the data\n(to establish that it is not an artifact), and then by seeing whether it persists when we begin to\nadd control variables to the right-hand side of the model. If the relationship persists in all the\nsubsets and in the presence of theoretically justified control variables, only then will we say that\nthe relationship is \xe2\x80\x9crobust\xe2\x80\x9d\xe2\x80\x94and therefore that it should be believed to be true.\nWe begin our analysis (as all data analysis should begin) by visually inspecting our data. In figure 1,\nwe scatter the proportion of the Court\xe2\x80\x99s decisions in a given term that was decided in the liberal\ndirection (\xe2\x80\x9cCourt Liberalism\xe2\x80\x9d) against public liberalism (\xe2\x80\x9cMood\xe2\x80\x9d), with both variables on the same\nscale. This simple exercise tells us something important: public mood varies extraordinarily little\n(from a low of 0.528 to a high of 0.722) over our entire period of study, 1952\xe2\x80\x932018, while the liberal\nbent in the Court\xe2\x80\x99s outputs varies quite a bit (low of 0.348, high of 0.801).\n\nFigure 1. Scatter plot of court liberalism versus\npublic liberalism (mood), by term\n\nTo begin the analysis in earnest, we present the cross-tabs, so to speak, of the term-level\ncorrelation that motivated this entire line of research. The subplot at the top left of figure 2 plots\nthe share of cases decided in the liberal direction (as coded in the Supreme Court database) each\nterm against the general liberal mood for that year for the period from 1952 through 2018. This\npanel shows the strong relationship between public mood and Court output that drives previous\nstudies. Indeed, in a linear probability model, a one percentage point increase in public liberalism\ncorrelates with an equal increase in the percentage of cases decided in the liberal direction, with\na p-value of 0.001.\nFinding a \xe2\x80\x9csignificant\xe2\x80\x9d correlation in the data does not end the inquiry, however. We next seek\nDoes the US Supreme Court Respond to Public Opinion? | 757\n\n\x0cto validate this empirical observation by examining the relationship within subsets of the data, as\nsuggested by Achen (2002). The findings are presented in the remainder of figure 2. These plots\npresent the term-level correlations within each Chief Justice era. If there is a relationship between\nthe Court\xe2\x80\x94as an institution\xe2\x80\x94and public opinion, there should be a consistent relationship across\nChief eras. However, the Chief-era plots give the lie to this expectation. The Warren Court shows a\npositive (but marginally insignificant, p = 0.073) relationship, the Rehnquist Court exhibits a weakly\npositive (and marginally significant, p = 0.041) effect, the Burger Court is essentially flat (p = 0.516),\nand Roberts shows a significant negative correlation (p = 0.034) between public mood and case\noutcomes, which is entirely antithetical to the strategic institutional maintenance perspective.\n\nFigure 2. Assessing the correlations between term-level outputs and mood\n\nFinally, because our Chief Era analyses suggest the clearest relationship during the Warren Court\nyears, we next aggregate all the post\xe2\x80\x93Warren eras (i.e., 1968\xe2\x80\x932018) in order to see whether there\nhas been any meaningful correlation between public preferences and Court outputs over the last\nfifty years. The subplot at the bottom right of figure 2 clearly shows that the appearance of a\nmeaningful relationship between mass public opinion and Court output is a function of the Warren\nCourt: the best fit line for the post-Warren period is essentially flat (p = 0.67). This suggests that\n758 | Does the US Supreme Court Respond to Public Opinion?\n\n\x0cthe relationship suggested by the \xe2\x80\x9cAll Terms\xe2\x80\x9d panel is not robust. It also suggests a good test for\nmodels built on institutional maintenance theory: do their results stand up in the post-Warren\nera?\nSeveral scholars have pointed out that term-level analyses are by their nature quite coarse, and\nnecessarily ignore a myriad of potentially relevant case-level factors (e.g., Epstein and Martin\n2010). Thus we turn now to a case-level (but still cross-sectional) analysis.\nWe estimate a series of linear probability models where the outcome is the direction of the\nCourt\xe2\x80\x99s decision (1 is liberal, 0 is conservative). The key independent variable is, as above, mood.\nHere we also add some case-specific information: salience. Salience is a latent quality of interest\nthat concerns both how \xe2\x80\x9cimportant\xe2\x80\x9d a case is, and how much attention it receives, in some\ncombination. Recall from above that most proponents of strategic institutional maintenance\ntheory argue that salience is a key variable\xe2\x80\x94even if they disagree about the nature of the\nrelationship. The idea is that the salience of a case conditions how justices will act, how likely they\nare to care what the public thinks with regards to that case. To capture salience, we use data from\nClark, Lax, and Rice (2011), which measures media coverage of cases in three newspapers before\nthe decision is rendered (see Strother 2019; Johnson and Strother 2021).\nWe estimate a series of models in order to ease the interpretation of the key relationship of\ninterest. Here, each model takes the basic form:\n\ndecisionDirection ~ \xce\xb21Mood + \xce\xb22MidSalience + \xce\xb23LowSalience + \xce\xb24Mood \xc3\x97 MidSalience + \xce\xb25Mood \xc3\x97\nLowSalience + \xce\xb1 + \xce\xb5\n\nIn each model, we are interested in the coefficient \xce\xb21. In the example model just above, \xce\xb21 is the\n5\n\ntotal effect of mood in high salience cases. To capture the total effect for midsalience cases,\nwe replace MidSalience with HighSalience in the model; for low-salience cases, we swap out\nLowSalience for HighSalience. We estimate these models for the full dataset, and then as above,\nfor each Chief Justice era, and then for the post-Warren period.\nFigure 3 depicts the findings graphically (we only show the key variable of interest, mood, for\nthe sake of presentation). These figures are coefficient plots, which plot the point estimate\n(the shape) and the 95 percent confidence interval (the bars) for each model. If the error bars\ndo not cross zero (the thick vertical line) then we would say the relationship is \xe2\x80\x9cstatistically\nsignificant\xe2\x80\x9d at the conventional p < 0.05 level. If the error bars do include the vertical zero-line,\n\n5. The \xce\xb1 is a constant (or \xe2\x80\x9cintercept\xe2\x80\x9d) term and \xce\xb5 is the error term.\nDoes the US Supreme Court Respond to Public Opinion? | 759\n\n\x0chowever, then we would say the relationship cannot be distinguished from zero (or that it is not\nstatistically significant). The subplot at the top left again is consistent with the typical finding\nin the literature, of salience in high and low salience cases showing up as highly statistically\nsignificant. However, when we check in the subsets of the data, we see tremendous heterogeneity.\nThe model for the Warren Court era shows across-the-board correlations, with the strongest\nrelationship appearing in midsalience cases. In the Burger era, we find no evidence of correlation\nin high or low salience cases, but a significant negative correlation appears in cases of midsalience.\nThe Rehnquist Court looks much more like what the strategic institutional maintenance theorists\nwould suggest, though the relationship is only modestly significant. The Roberts Era again bucks\nthe trend, with significant negative correlations in high and midsalience cases, and a negative\nthough marginally insignificant correlation in low salience cases. There is no theory of Supreme\nCourt responsiveness that would purport to predict this odd array of findings. Institutional\nMaintenance Theory, specifically, would predict a consistent pattern in every era over time. The\ndata do not support this expectation. Finally, we again estimate the model considering the full\npost-Warren period (presented in the subplot at bottom right) and find tight nulls in all three\nlevels of salience.\n\n6\n\n6. In Johnson and Strother (2021) we show that this (non)pattern holds when we control for Supreme\nCourt ideology, and when we focus on the subset of the Court\xe2\x80\x99s decisions reversing lower Court\ndecisions. Adding ideology to the model described above (i.e., inserting the term \xce\xb26Ideology) brings\nus to what might be thought of as the \xe2\x80\x9ctheoretical\xe2\x80\x9d minimal model, because it is the minimally\nspecified model that accounts for all theoretically relevant variables\xe2\x80\x94since virtually all judicial\npolitics scholars agree that justice ideology shapes Supreme Court decision-making. In Johnson and\nStrother (2021) we show that all the analyses we describe here hold true when we account for this\ntheoretically important variable.\n760 | Does the US Supreme Court Respond to Public Opinion?\n\n\x0cFigure 3. Case-level analysis of the relationship between Supreme Court decisions and public mood\nNote: Point estimates with 95% confidence intervals. In all subplots, the circle (\xe2\x97\x8b) at top denotes Mood in high\nsalience cases, the square (\xe2\x96\xa1) at center denotes Mood in medium salience cases, and the diamond (\xe2\x97\x8a) at bottom\ndenotes Mood in low salience cases.\n\nIn summary, we find no evidence to support the claim that the Supreme Court is responsive\nto public opinion in these cross-sectional analyses. Contrary to many existing studies, we find\nno significant correlation between public mood and the Court\xe2\x80\x99s term-level outputs (i.e., the\nproportion of decisions in a given term rendered in the liberal direction) or at the level of\nindividual decisions. This finding remains when we consider the potential mediating variable,\nsalience. It seems likely that prior studies have reached errant conclusions because they did not\nconsider how the correlations they observed might be time bound. That is, those findings are\nalmost certainly driven by the Warren Court and not reflective of a larger pattern in the data. Or\nto put it a little differently, there is no evidence that the \xe2\x80\x9crelationship\xe2\x80\x9d identified in the literature,\nand shown here in our \xe2\x80\x9cAll Terms\xe2\x80\x9d analyses, is robust and meaningful.\n\nDoes the US Supreme Court Respond to Public Opinion? | 761\n\n\x0cTime-Series Approach\nOf course, it is possible that this cross-sectional approach is not the best one to identify the\nrelationship of interest. Many studies in this literature have taken a time-series approach (e.g.,\nMishler and Sheehan 1993; Casillas, Enns, and Wohlfarth 2011; Collins and Cooper 2016). Timeseries approaches allow us to consider time trends in the relationship, the possibility that the\nCourt responds after a lag (as opposed to contemporaneously), and the like. For these reasons,\nthe next portion of our analysis takes time seriously. First, as above, we simply plot the data and\nvisually inspect it. Figure 4 plots both public mood and Supreme Court liberalism against time.\nAgain, we see that there is far more variation in Court outputs than in public liberalism\xe2\x80\x94but the\neyeball test suggests that the two may move somewhat in concert. And note the especially tight\napparent correlation during the Warren Court (1954\xe2\x80\x9368).\n\nFigure 4. Time-series plot of court liberalism versus public liberalism (mood), by term\n\nFrom here, we move on to more exacting tests than the eye can perform. We estimate a series of\ngeneral error correction models, where the outcome is term-level Court liberalism, and the key\nindependent variables capture public mood\xe2\x80\x94both contemporaneous and lagged. Additionally, we\ncontrol for Supreme Court ideology, as justices\xe2\x80\x99 tendency to vote ideologically is among the most\nwell-established in all of judicial politics (Segal and Spaeth 2002). In doing so, we are estimating\nwhat you can think of as the minimum theoretically justified model. We specify Supreme Court\nideology in these models using the Segal-Cover score of the median justice on the Court for a\n762 | Does the US Supreme Court Respond to Public Opinion?\n\n\x0cgiven term (Segal Cover 1989). Finally, the model includes the \xe2\x80\x9cerror correction rate\xe2\x80\x9d (the lag of\nthe dependent variable) on the right-hand side of the equation. The outputs of these models are\npresented graphically in figure 5. We first estimate the model for all the Court terms in our dataset.\nAs the figure shows, when considering the full time range, we find that \xe2\x80\x9clagged\xe2\x80\x9d (i.e., last year\xe2\x80\x99s)\npublic mood correlates significantly with Court liberalism. Building on our analyses above, though,\nwe next consider whether this correlation holds when we exclude the Warren Court. The model\nfor the post-Warren years provides no evidence of a correlation between mood and Court outputs.\nAs such, these time-series analyses are consistent with the cross-sectional analysis presented\nabove; there is nothing to see after the Warren era. We have found no solid evidence that the Court\nresponds to public opinion.\n\nFigure 5. Time-series analysis of court liberalism\nNote: Point estimates with 95% confidence intervals.\n\nConclusion\nThe Constitution creates strong protections for judicial independence. By design, tenure during\ngood behavior, salary protection, and the appointments process all insulate the judiciary from\npublic pressure. Given the structural protections guarding the Supreme Court, it would be\nsurprising if the Court did, in fact, follow the public. An important question in judicial politics\nscholarship, then, is whether these constitutional protections are \xe2\x80\x9cworking.\xe2\x80\x9d The answer to this\n\nDoes the US Supreme Court Respond to Public Opinion? | 763\n\n\x0cquestion points us to which normative question we face: can the Court be democratically\nlegitimate? If the Court follows the public, can it effectively protect minorities?\nMany scholars contend that constitutional protections for judicial independence have not\ninsulated the Court from the public. That is, they reject a strong account of judicial independence\nand contend that despite the Court\xe2\x80\x99s structural protections, the justices hew to the public will\nto protect their institutional legitimacy. These theories have been supported by a large number\nof studies reporting significant correlations between the liberal tendencies of the public and\nSupreme Court decisions. The regularity of these findings has established something of a\nconsensus that public opinion directly influences Court\xe2\x80\x99s work. If these scholars are right, the\nconcern that the Court may not be able to protect the rights of unpopular minorities against\nmajoritarian abuse is legitimated.\nBy going back to the basics\xe2\x80\x94looking carefully at the data, checking in the subsets, assessing\nrobustness, and so on\xe2\x80\x94we show here that there is actually very little evidence that the Supreme\nCourt, as an institution, responds to public preferences. That is, our empirical results show that\nthere is no solid empirical basis for the common claim that the Court follows public opinion\xe2\x80\x94at\nleast over the last fifty years.\n\n7\n\nReferences\nAchen, Christopher H. 2005. \xe2\x80\x9cLet\xe2\x80\x99s Put Garbage-Can Regressions and Garbage-Can Probits Where\nThey Belong.\xe2\x80\x9d Conflict Management and Peace Science 22 (4): 327\xe2\x80\x9339.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2002. \xe2\x80\x9cToward a New Political Methodology: Microfoundations and ART.\xe2\x80\x9d Annual Review of\nPolitical Science 5:423\xe2\x80\x9350.\nBickel, Alexander M. 1962. The Least Dangerous Branch: The Supreme Court at the Bar of Politics.\nNew Haven, CT: Yale University Press.\n\n7. In other work, we show that this is true across three units of analysis, a variety of measures of public\npreferences and case salience, and among the subset of cases in which the Court reversed lower\ncourt decisions. Replications of prior studies further reinforce these conclusions. See Johnson and\nStrother (2021).\n764 | Does the US Supreme Court Respond to Public Opinion?\n\n\x0cBlack, Ryan C., Ryan J. Owens, Justin Wedeking, and Patrick C. Wohlfarth. 2020. The Conscientious\nJustice. Cambridge: Cambridge University Press.\nBreyer, Stephen G. 1995. \xe2\x80\x9cJudicial Independence in the United States.\xe2\x80\x9d St. Louis University Law\nJournal 40:989.\nBryan, Amanda C., and Christopher D. Kromphardt. 2016. \xe2\x80\x9cPublic Opinion, Public Support, and\nCounter-Attitudinal Voting on the US Supreme Court.\xe2\x80\x9d Justice System Journal 37 (4): 298\xe2\x80\x93317.\nCasillas, Christopher, Peter K. Enns, and Patrick C. Wohlfarth. 2011. \xe2\x80\x9cHow Public Opinion\nConstrains the US Supreme Court.\xe2\x80\x9d American Journal of Political Science 55 (1): 74\xe2\x80\x9388.\nClark, Tom S., Jeffrey R. 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Martin. 2010. \xe2\x80\x9cDoes Public Opinion Influence the Supreme Court?\nPossibly Yes (but We\xe2\x80\x99re Not Sure Why).\xe2\x80\x9d University of Pennsylvania Journal of Constitutional Law\n13 (2): 263\xe2\x80\x9381.\nEpstein, Lee, and Jeffrey A. Segal. 2000. \xe2\x80\x9cMeasuring Issue Salience.\xe2\x80\x9d American Journal of Political\nScience 44 (1): 66\xe2\x80\x9383.\nFlemming, Roy B., and B. Dan Wood. 1997. \xe2\x80\x9cThe Public and the Supreme Court: Individual Justice\nResponsiveness to American Policy Moods.\xe2\x80\x9d American Journal of Political Science 41 (2): 468\xe2\x80\x9398.\nGiles, Michael W., Bethany Blackstone, and Richard L. Vining. 2008. \xe2\x80\x9cThe Supreme Court in\nAmerican Democracy: Unraveling the Linkages between Public Opinion and Judicial Decision\nMaking.\xe2\x80\x9d Journal of Politics 70 (2): 293\xe2\x80\x93306.\nGlennon, Colin, and Logan Strother. 2019. \xe2\x80\x9cThe Maintenance of Institutional Legitimacy in\nSupreme Court Justices\xe2\x80\x99 Public Rhetoric.\xe2\x80\x9d Journal of Law and Courts 7 (2): 241\xe2\x80\x9361.\nHall, Matthew E. K. 2011. The Nature of Supreme Court Power. Cambridge: Cambridge University\nPress.\n\nDoes the US Supreme Court Respond to Public Opinion? | 765\n\n\x0c\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2014. \xe2\x80\x9cThe Semiconstrained Court: Public Opinion, the Separation of Powers, and the\nU.S. Supreme Court\xe2\x80\x99s Fear of Nonimplementation.\xe2\x80\x9d American Journal of Political Science 58 (2):\n352\xe2\x80\x9366.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2018. What Justices Want: Goals and Personality on the U.S. Supreme Court. Cambridge:\nCambridge University Press. Hamilton, Alexander. 1788. The Federalist, no. 78.\nJohnson, Ben, and Logan Strother. 2021. \xe2\x80\x9cThe Supreme Court\xe2\x80\x99s (Surprising?) Indifference to Public\nOpinion.\xe2\x80\x9d Political Research Quarterly 74 (1): 18\xe2\x80\x9334.\nKeck, Thomas M. 2014. Judicial Politics in Polarized Times. Chicago: University of Chicago Press.\nLee, Frances E. 2015. \xe2\x80\x9cHow Party Polarization Affects Governance.\xe2\x80\x9d Annual Review of Political\nScience 18:261\xe2\x80\x9382.\nLenz, Gabriel, and Alexander Sahn. 2020. \xe2\x80\x9cAchieving Statistical Significance with Control Variables\nand without Transparency.\xe2\x80\x9d Political Analysis, November 16, 2020. https://doi.org/10.1017/\npan.2020.31.\nMarshall, Thomas R. 1989. Public Opinion and the Supreme Court. UK: Unwin-Hyman.\nMcGuire, Kevin T., and James A. Stimson. 2004. \xe2\x80\x9cThe Least Dangerous Branch Revisited: New\nEvidence on Supreme Court Responsiveness to Public Preferences.\xe2\x80\x9d Journal of Politics 66 (4):\n1018\xe2\x80\x9335.\nMishler, William, and Reginald S. Sheehan. 1993. \xe2\x80\x9cThe Supreme Court as a Countermajoritarian\nInstitution? The Impact of Public Opinion on Supreme Court Decisions.\xe2\x80\x9d American Political\nScience Review 87 (1): 87\xe2\x80\x93101.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 1996. \xe2\x80\x9cPublic Opinion, the Attitudinal Model, and Supreme Court Decision Making: A MicroAnalytic Perspective.\xe2\x80\x9d Journal of Politics 59 (4): 1114\xe2\x80\x9342.\nMontgomery, Jacob M., Brendan Nyhan, and Michelle Torres. 2018. \xe2\x80\x9cHow Conditioning on\nPosttreatment Variables Can Ruin Your Experiment and What to Do About It.\xe2\x80\x9d American Journal\nof Political Science 62 (3): 760\xe2\x80\x9375.\nSegal, Jeffrey A., and Albert D. Cover. 1989. \xe2\x80\x9cIdeological Values and the Votes of US Supreme Court\nJustices.\xe2\x80\x9d American Political Science Review 83 (2): 557\xe2\x80\x9365.\nSegal, Jeffrey A., and Harold J. Spaeth. 2002. The Supreme Court and the Attitudinal Model Revisited.\nCambridge: Cambridge University Press.\nSpaeth, Harold J., Lee Epstein, et al. 2019. Supreme Court Database, Version 2019 Release 1.\nhttp://Supremecourtdatabase.org.\n766 | Does the US Supreme Court Respond to Public Opinion?\n\n\x0cStimson, James A. 1999. Public Opinion in America: Moods, Cycles, and Swings. Boulder, CO:\nWestview.\nStimson, James A., Michael B. MacKuen, and Robert S. Erikson. 1995. \xe2\x80\x9cDynamic Representation.\xe2\x80\x9d\nAmerican Political Science Review 89 (3): 543\xe2\x80\x9365.\nStrother, Logan. 2017. \xe2\x80\x9cHow Expected Political and Legal Impact Drive Media Coverage of Supreme\nCourt Cases.\xe2\x80\x9d Political Communication 34 (3): 571\xe2\x80\x9389.\n\xe2\x80\x94\xe2\x80\x94\xe2\x80\x94. 2019. \xe2\x80\x9cCase Salience and the Influence of External Constraints on the Supreme Court.\xe2\x80\x9d\nJournal of Law and Courts 7 (1): 129\xe2\x80\x9347.\nStrother, Logan, and Colin Glennon. 2021. \xe2\x80\x9cAn Experimental Investigation of the Effect of Supreme\nCourt Justices\xe2\x80\x99 Public Rhetoric on Judicial Legitimacy.\xe2\x80\x9d Law & Social Inquiry 46 (2): 435\xe2\x80\x9354.\nWest Virginia State Board of Education v Barnette 319 US 624 (1943).\n\nClass Activity: What\xe2\x80\x99s Wrong with the Warren Court?\nIn the chapter, we argued that there is no good evidence that the Supreme Court, as an institution,\nresponds to public opinion and that prior studies have erroneously concluded the opposite\nbecause of a correlation driven by the Warren Court (recall especially figure 2 and the associated\ndiscussion).\nBut this raises a new question: Was the Warren Court responsive to public opinion? It is possible,\nfor one reason or another\xe2\x80\x94perhaps the fact that Earl Warren himself was a prominent politician\nbefore joining the Court\xe2\x80\x94that the Warren Court was an outlier that did, in fact, care about the will\nof the people.\nAlternatively, it is possible that the Warren Court was simply a very liberal Court that happened to\nbe serving when the public was also very liberal. That is, that the liberalism of the Court and public\nare correlated, but not causally related.\nNote that this is an important empirical question. For this activity, your job is to try to answer that\nquestion: Was the Warren Court responsive to the public?\nTo answer the questions below, you first need to download R and RStudio. R is a powerful opensource program for statistics and data analysis. RStudio is free software that provides a niceDoes the US Supreme Court Respond to Public Opinion? | 767\n\n\x0clooking console for working in R. For information on installing R and RStudio in Windows or in Mac\nOS X see one of the following links:\n\xe2\x80\xa2 https://www.andrewheiss.com/blog/2012/04/17/install-r-rstudio-r-commanderwindows-osx/\n\xe2\x80\xa2 https://owi.usgs.gov/R/training-curriculum/installr/\n\xe2\x80\xa2 https://cran.r-project.org/doc/manuals/r-release/R-admin.html\nOnce you have R and RStudio installed on your computer, download and open the .R file\n(\xe2\x80\x9cWarren_PublicOpinion.R\xe2\x80\x9d) and the data file (\xe2\x80\x9cWarren_PublicOpinion.csv\xe2\x80\x9d) below. Note that you\nwill need to save the .R file and the data file in the same folder on your computer. Next, set the\nworking directory of your RStudio session to the folder where you saved the .R file and data file.\nTo do so, open RStudio, click \xe2\x80\x9csession\xe2\x80\x9d on the menu near the top of the screen, scroll down to \xe2\x80\x9cset\nworking directory,\xe2\x80\x9d and click \xe2\x80\x9cchoose directory\xe2\x80\x9d (i.e., Session > Set Working Directory > Choose\nDirectory).\nOnce the working directory is set, you can click and highlight sections of the code in the scripting\nwindow and click the \xe2\x80\x9crun\xe2\x80\x9d button in the top left section of the window. There are notes in the\ncode that will guide you through the exercise.\n\nQuestions\n1. Do you think the Warren Court was responsive to public opinion? Why or why not?\n2. Do you observe a constant relationship between opinion and outputs during the Warren\nyears?\n3. You identified an \xe2\x80\x9coutlier\xe2\x80\x9d year in the data. What do you think caused that one year to be so\ndifferent from all the other observations in the Warren era?\n\n768 | Does the US Supreme Court Respond to Public Opinion?\n\n\x0cPART V\n\nMEDIA\nStudying media coverage of courts and their decisions is a natural pursuit for students of the\njudiciary. Courts are passive institutions and judges generally do not hold press conferences, send\nout constituent mail or tweet. What most people know about courts and their work, then, is often\nfiltered through the lens of the media. Understanding the judiciary and its role in our society,\nthen, requires us also to understand how and why the media covers the courts. To this end,\nour volume has two contributions\xe2\x80\x94one that examines how the media covers the judiciary and\nthe potential fallout of that coverage and one that examines what the media chooses to cover,\nand how those choices may impede steps taken by the judiciary to become more open to media\ncoverage. First, Professor Douglas R. Rice examines whether coverage of the U.S. Supreme Court\nhas changed over time. Using an original dataset that includes newspaper coverage spanning over\nfifty years, Professor Rice employs machine learning and textual analysis to his research question.\nSpecifically, Professor Rice focuses on the coverage of conflict on the high court and finds that\nreporting of conflict has increased. Moreover, the increase in this type of coverage is echoed in\nthe declining public approval of the Court, escalating scholarly concerns regarding the declining\nlegitimacy of the U.S. Supreme Court. Second, Professors Joseph P. Bolton and Christopher D.\nKromphardt examine media requests for televising hearings of the Court of Appeals for the Ninth\nCircuit from 1991 through 2005. Assessing the requests of local and national media, allow Bolton\nand Kromphardt to investigate what drives coverage of oral arguments versus coverage of court\ndecisions. The analysis finds significant differences between local and national interest and some\ndivergence in factors that spur a request for coverage versus factors that yield coverage of a court\ndecision.\nRice, Douglas. \xe2\x80\x9cThe Language of Newspaper Coverage of the US Supreme Court.\xe2\x80\x9d\nBolton, Joseph P. and Christopher D. Kromphardt. \xe2\x80\x9cBlack Robes in the Limelight: News Values and\nRequests to Televise Oral Arguments in the Ninth Circuit Court of Appeals, 1991-2005.\xe2\x80\x9d\n\nMedia | 769\n\n\x0c31. The Language of Newspaper Coverage\nof the US Supreme Court\nDOUGLAS RICE\n\nA previous version of this paper was presented at the 2018 Conference of the Midwest Political\nScience Association, Chicago, IL, April 5th-8th, 2018.\nIn describing the work of media coverage of the Supreme Court, celebrated newspaper reporter\nLinda Greenhouse writes that the \xe2\x80\x9coverwhelming impression that journalism about the\nCourt\xe2\x80\x94including my own\xe2\x80\x94probably conveyed to the casual reader was of an institution locked\nin mortal combat, where sheer numbers rather than the force of argument or legal reasoning\ndetermined the result\xe2\x80\x9d (1996, 1551\xe2\x80\x9352). Greenhouse, notably, is considered one of the most levelheaded journalists covering the Court, most likely to present cases without the added dramatics\nof other reporters (Davis 1994; Solberg and Waltenburg 2014). In the context of a changing\nmedia environment and debate over the norms of coverage of the Supreme Court, Greenhouse\xe2\x80\x99s\nperspective suggests a Court that is increasingly discussed by the media in terms of dramatic\ndivisions.\nWhat does this dramatization of the Court\xe2\x80\x99s business mean for the public\xe2\x80\x99s approval of the\ninstitution? In this study, I seek to understand how and whether changes in conflict reporting\nrelate to (or reflect) the public\xe2\x80\x99s perception of the Court. Understanding this relationship is\nespecially important in light of recent declines in the public\xe2\x80\x99s approval of the US Supreme Court,\ndeclines that have sparked hot takes from pundits, a series of alarmist posts from Gallup and\nother polling organizations, and recent academic inquiries (e.g., Sinozich 2017) all examining the\ncauses and implications for the role of the Supreme Court in American politics. Studying coverage\nat all stages of the cases\xe2\x80\x94rather than simply coverage of the decisions\xe2\x80\x94and doing so across\nmultiple newspapers over an extended period of the Court\xe2\x80\x99s modern history, I provide evidence of\nchanges in the extent to which major national newspapers cover conflict between justices as well\nas conflict between the Court and other political institutions.\nThe results suggest that reporting on the Court has increasingly focused on conflict between the\njustices. Moreover, changes in the emphasis on this conflict closely mirror changes in the Court\xe2\x80\x99s\npublic approval, at least as captured by one prominent measure. These results fit with a body of\naccumulated experimental evidence suggesting that exposure to division on the Court influences\nperceptions of the Court in terms of both policy acceptance or compliance and institutional\nlegitimacy. In light of growing polarization on the Supreme Court, particularly following the\nconfirmation battles and controversy surrounding Merrick Garland, Neil Gorsuch, and Brett\n770 | Language of Newspaper Coverage of the US Supreme Court\n\n\x0cKavanaugh, the results offer evidence that the Court\xe2\x80\x99s reservoir of goodwill may be at risk of drying\nup.\n\nThe Court as a Story\nMedia coverage is notorious for its sensationalism; as the saying goes, \xe2\x80\x9cIf it bleeds, it leads.\xe2\x80\x9d Media\nselect and craft stories in order to attract audiences, as would be expected in an industry that\nrelies on readership and advertising dollars (e.g., Davis 1994; Zilis 2015). The Court\xe2\x80\x99s institutional\ncharacteristics, however, make it a difficult subject for the sort of dramatic storytelling likely\nto garner audiences. Access to the Court is limited, deliberations regularly occur out of sight,\nand decisions are released as lengthy opinions cloaked with legal justifications. Legal language is\ngenerally dense and understated, and the Court itself is cloaked in symbols suggesting an exclusive\nand particularly high-minded form of discussion and debate (Davis 1994, 2011).\nNevertheless, newspaper coverage of the Supreme Court is tasked with attracting audiences,\nwhich is achieved by \xe2\x80\x9cgenerating drama and emphasizing conflict\xe2\x80\x9d (Zilis 2015, 29). Disagreements\nbetween justices, between litigants, and between the Court and other political actors are\nemphasized. Some cases lend themselves to such framing\xe2\x80\x94for instance, the Obamacare\ndecision\xe2\x80\x94but the majority do not. Epstein and Segal (2000) find that only 15 percent of decisions\nreceive front-page coverage in the New York Times the day after the decision. Similarly, Clark,\nLax, and Rice (2015) demonstrate that coverage of cases across three major national newspapers\nexhibits strong positive skew, with most cases receiving no or very little coverage and a small\nnumber receiving extensive coverage throughout the life of the case on the Court\xe2\x80\x99s docket.\nThe upshot is that many of the Court\xe2\x80\x99s decisions are only minimally newsworthy in terms of\nwhat newspaper editors want, and those that are newsworthy present a distorted picture of the\nCourt\xe2\x80\x99s business (Solberg and Waltenburg 2014). Because so few cases receive media attention,\nmost rulings never influence the public\xe2\x80\x99s opinion of the Court, as the public is blissfully unaware of\nwhat the Court is doing (Marshall 1989; Franklin and Kosaki 1995; Zilis 2015). But where the media\xe2\x80\x99s\nattention does turn to the Court\xe2\x80\x99s activity, conflict and drama are more likely to be present (Zilis\n2015), and\xe2\x80\x94given the task of the reporter\xe2\x80\x94the conflict and drama are likely to be highlighted and\nemphasized.\nThe Court has seemed acutely aware of this potential, seeking to control its image, reliant as it\nis on its legitimacy. As one of the seminal works on the topic notes, as of the early 1990s, \xe2\x80\x9cthe\njustices have been stunningly successful in focusing the press\xe2\x80\x99 attention on those aspects of the\nCourt most beneficial to the achievement of the justices\xe2\x80\x99 objectives, both those in support of the\ninstitution and those that support them as individuals\xe2\x80\x9d (Davis 1994, 114).\nLanguage of Newspaper Coverage of the US Supreme Court | 771\n\n\x0cYet there is reason to believe the Court\xe2\x80\x99s ability to manage its public profile may have broken\ndown. The changing media environment has yielded a far different emphasis in coverage across all\nareas of American life, and the Court has not been immune to that trend. Increasingly, journalists\ntreat the Court as a political institution and the justices as political actors (Davis 2011; Solberg and\nWaltenburg 2014). Indeed, reporters covering the Court are aware of the changing environment.\nAs Davis notes, there is an ongoing dispute among journalists covering the Court about the proper\nmanner in which to discuss the institution and the decision-making process of the justices (Davis\n2011). Should reporters treat the Court as a political institution with political actors in the broader\npolitical debate, or should the justices be treated as altruistic actors seeking resolutions in the\nlaw?\nThe question becomes particularly important when one considers whether media coverage affects\npublic responses to the Court. Stated more simply, the question is whether coverage\xe2\x80\x94particularly\ncoverage focused on conflict\xe2\x80\x94matters. This question is rooted in a rich and developing literature\nthat has struggled to traverse the divide between the external validity of experimental results and\nunderstanding media coverage at scale. In one vein, work has looked to document the ability of the\nCourt to encourage support for public policies in both observational (Marshall 1989; Mondak 1994)\nand experimental (Zilis 2015) work. Importantly, experimental work has also demonstrated the\nimportance of the media in translating the Court\xe2\x80\x99s decisions for the public in terms of generating\nacceptance (Clawson and Waltenburg 2003).\nStill, acceptance of individual decisions is only a small part of\xe2\x80\x94and indeed, may be shaped by (Zilis\n2015)\xe2\x80\x94a more fundamental characteristic of the Court: its institutional legitimacy. The debate\nover the proper manner to discuss the Court traces directly to concerns about treating the Court\nin a way that reduces its legitimacy. On this question, recent experimental and survey research\nsuggest that responses to individual Court decisions or the perceived ideology of the Court may\ninfluence perceptions of the legitimacy of the institution under some conditions (Johnston and\nBartels 2010; Bartels and Johnston 2013; Zilis 2015). Lost in these studies, however, is how changes\nin the broad environment of news coverage relate to or affect the long-term changes in public\napproval. That is, to remain tractable, scholars have regularly relied on a relatively small fraction\nof media coverage for relatively short periods of time, have examined coverage only of a limited\nnumber of cases, or have examined only survey or experimental work.\nThus I build from this work and address two questions. First, I examine whether\xe2\x80\x94and if so,\nhow\xe2\x80\x94coverage of the Court has changed over time in terms of the conflictual content of\nnewspaper coverage. If media reports have dramatized action in the Court as \xe2\x80\x9cmortal combat\xe2\x80\x9d and\nexperimental work suggests that dramatization might matter for public approval of decisions and\nthe institution, it is imperative to understand how that dramatization in coverage has changed\nover time. Second, how does the reporting of conflict relate to public approval of the institution\nover time? While experimental work suggests that exposure to conflict in the Court may decrease\nsupport for the institution, it is unclear how externally valid the observed relationships are. By\n772 | Language of Newspaper Coverage of the US Supreme Court\n\n\x0cexamining a broad swath of media coverage in the media environment where dramatization is the\nmost modest, therefore, I gain leverage on differences in the broad exposure to discussions of\nconflict on the Court and thus its connection to public approval of the institution.\n\nTypes of Conflict\nI focus on two types of conflict present in newspaper coverage of Supreme Court cases: justice\nconflict, or the reporting of conflict between the justices, and political conflict, or the reporting\nof the Court\xe2\x80\x99s role in political conflicts, particularly as it pertains to conflict with Congress or\nthe president. While recognizing that the magnitude of conflict is variable across cases and\ndisagreements, in this study I define conflict as any indication of disagreement among justices or\nbetween the Court and other institutions. In the following two sections, I describe and address\nhow these types of conflict relate to the public approval of the institution.\n\nJustice Conflict\nOne of many stories to come out of the Court\xe2\x80\x99s decision in Brown v. Board of Education (1954)\ndetailed the process of uniting a dividing Court in the name of public perception. When the case\nwas first argued in 1952, the justices stood deeply divided (Klarman 2004). Then the chief justice at\nthe time, Vinson, suddenly passed away, leading to his replacement with Earl Warren. As Klarman\nillustrates in striking detail, Warren set about bringing the Court to a unanimous decision in order\nto secure the judgment against backlash. In this landmark case, we can see the belief\xe2\x80\x94held by the\njustices themselves\xe2\x80\x94that conflict among justices detracts from support for the decisions of the\nSupreme Court and potentially from support for the institution itself.\nIndeed, research provides some evidence this is the case. In experimental investigations, reporting\nunanimity was found to increase support for the Court\xe2\x80\x99s decisions (Zink, Spriggs, and Scott 2009).\nLikewise, Zilis (2015) argues and finds evidence to suggest that the media covers dissensual\xe2\x80\x94that\nis, divided\xe2\x80\x94cases more unfavorably than consensual decisions. In presenting conflicting views,\njustices potentially decrease support for the decision and their institution.\nIn all, justices seem aware\xe2\x80\x94and evidence suggests\xe2\x80\x94that explicit division might carry institutional\ncosts. Of course, it remains necessary that the public be aware of the division of opinion. To\nthis end, media reporting on the Court has expanded discussions of the political ideologies\nand motivations of the justices, explicitly focusing on their differences. As an example, consider\ncoverage of D.C. v. Heller (2008) in the Washington Post. The second sentence of the article states,\nLanguage of Newspaper Coverage of the US Supreme Court | 773\n\n\x0c\xe2\x80\x9cThe Court\xe2\x80\x99s landmark 5 to 4 decision split along ideological grounds,\xe2\x80\x9d while the author later states\neven more dramatically, \xe2\x80\x9cStevens and especially Scalia often made their points in caustic and\ndismissive language. Throughout his opinion, Scalia used terms such as \xe2\x80\x98frivolous\xe2\x80\x99 and \xe2\x80\x98absurdity\xe2\x80\x99\nto describe his opponents\xe2\x80\x99 legal reasoning. Stevens made his unhappiness known by reading parts\nof his dissent from the bench, and he pointedly recalled for his conservative colleagues Justice\nFelix Frankfurter, whom he called a \xe2\x80\x98true judicial conservative.\xe2\x80\x99\xe2\x80\x9d\nThis language is no aberration. One recent study finds that articles covering the Court\xe2\x80\x99s decisions\ngenerally devote very little space for the justifications, whether legal or political, offered by the\njustices for their decisions (Solberg and Waltenburg 2014). Yet the space devoted to ideological\njustifications has increased markedly from 1975 to 2009. This type of coverage emphasizes the\nideological positioning of justices relative to the Court\xe2\x80\x99s divisions (e.g., Roberts abandoning the\nconservatives in NFIB v. Sebelius) while dramatizing divisions on the Court\xe2\x80\x94for instance, a\n\xe2\x80\x9cblistering\xe2\x80\x9d dissenting opinion (Solberg and Waltenburg 2014, 4). The focus on ideological divisions\nmanifests in the tone of coverage, as conflicting coalitions that are ideologically homogenous\nreceive particularly negative coverage (Zilis 2015). The potential effect is magnified by polarized\nresponses to the Court\xe2\x80\x99s dissensual decisions; as Nicholson and Hansford (2014) find, providing the\npa
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