The Decline of Supreme Court Deference to the President
Lee Epstein & Eric Posner
University of Chicago Working Paper, March 2017
According to entrenched conventional wisdom, the president enjoys considerable advantages over other litigants in the Supreme Court. Because of the central role of the presidency in the U.S. government, and the expertise and experience of the Solicitor General's office, the president usually wins. However, a new analysis of the data reveals that the conventional wisdom is out of date. The historical dominance of the president in the Supreme Court reached its apex in the Reagan administration, which won nearly 80% of the cases, and has declined steadily since then. In the Obama administration, the presidency suffered its worst win rate, barely 50%. After documenting this trend, we discuss possible explanations. We find evidence that the trend may be due to growing self-assertion of the Court and the development of a specialized private Supreme Court bar. We find no evidence for two other possible explanations - that the trend is due to greater executive overreaching than in the past, or ideological disagreements between the Court and the presidency.
Justice, Interrupted: The Effect of Gender, Ideology and Seniority at Supreme Court Oral Arguments
Tonja Jacobi & Dylan Schweers
Virginia Law Review, forthcoming
Oral arguments at the Supreme Court are important - they affect case outcomes and constitute the only opportunity for outsiders to directly witness the behavior of the justices of the highest court. This Article studies how the justices compete to have influence at oral argument, by examining the extent to which the Justices interrupt each other; it also scrutinizes how advocates interrupt the Justices, contrary to the rules of the Court. We find that judicial interactions at oral argument are highly gendered, with women being interrupted at disproportionate rates by their male colleagues, as well as by male advocates. Oral argument interruptions are also highly ideological, not only because ideological foes interrupt each other far more than ideological allies do, but we show that conservatives interrupt liberals more frequently than vice versa. Seniority also has some influence on oral arguments, but primarily through the female justices learning over time how to behave more like male justices, avoiding traditionally female linguistic framing in order to reduce the extent to which they are dominated by the men. We use two separate databases to examine how robust these findings are: a publicly available database of Roberts Court oral arguments, and another that we created, providing in-depth analysis of the 1990, 2002, and 2015 Terms. This latter data allows us to see whether the same patterns held when there were one, two, and three female justices on the Court, respectively. These two sets of analyses allow us to show that the effects of gender, ideology, and seniority on interruptions have occurred fairly consistently over time. It also reveals that the increase in interruptions over time is not a product of Justice Scalia's particularly disruptive style, as some have theorized, nor of the political polarization in the country generally arising from the 1994 Republican Revolution. We also find some evidence that judicial divisions based on legal methodology, as well as ideology, lead to greater interruptions.
Emotional Arousal Predicts Voting on the U.S. Supreme Court
Bryce Dietrich, Ryan Enos & Maya Sen
Harvard Working Paper, October 2016
Do Justices telegraph their preferences during oral arguments? We demonstrate that Justices implicitly reveal their leanings during oral arguments, even before arguments and deliberations have concluded. Specifically, we extract the emotional content of over 3,000 hours of audio recordings spanning 30 years of oral arguments before the Court. Using only the level of emotional arousal in each of the Justices' voices during these arguments, as measured by their vocal pitch, we are able to accurately predict many of their eventual votes, while using none of the text or substantive content. These predictions are statistically and practically significant and robust to including a range of controls. Our findings suggest that mannerisms that may be subconscious, such as vocal pitch, carry information that basic legal, political, and textual information do not, and can be used to predict the decisions of even elite political actors.
Improving Supreme Court Forecasting Using Boosted Decision Trees
Aaron Kaufman, Peter Kraft & Maya Sen
Harvard Working Paper, February 2017
What predicts the behavior of Justices on the U.S. Supreme Court? Previous attempts to develop predictive models of Supreme Court behavior leave room for improvement, in large part because of challenges involved with incorporating all available case-specific factors. In this article, we address these issues using an AdaBoost decision tree regressor, a popular approach in machine learning that is relatively underused in political science. We couple this approach with a novel mixed data set of both oral arguments data as well as data on case-level attributes. As we show, our AdaBoosted approach substantially outperforms not only existing predictive models of Supreme Court outcomes but also the predictions of legal experts. Substantively, this suggests that combining both legal information and the information revealed by the Justices themselves in the months leading to the decision provide the best information. We conclude the article by discussing possible applications of the AdaBoost approach within the social sciences.
A general approach for predicting the behavior of the Supreme Court of the United States
Daniel Martin Katz, Michael Bommarito & Josh Blackman
PLoS ONE, April 2017
Building on developments in machine learning and prior work in the science of judicial prediction, we construct a model designed to predict the behavior of the Supreme Court of the United States in a generalized, out-of-sample context. To do so, we develop a time-evolving random forest classifier that leverages unique feature engineering to predict more than 240,000 justice votes and 28,000 cases outcomes over nearly two centuries (1816-2015). Using only data available prior to decision, our model outperforms null (baseline) models at both the justice and case level under both parametric and non-parametric tests. Over nearly two centuries, we achieve 70.2% accuracy at the case outcome level and 71.9% at the justice vote level. More recently, over the past century, we outperform an in-sample optimized null model by nearly 5%. Our performance is consistent with, and improves on the general level of prediction demonstrated by prior work; however, our model is distinctive because it can be applied out-of-sample to the entire past and future of the Court, not a single term. Our results represent an important advance for the science of quantitative legal prediction and portend a range of other potential applications.
Do Law Clerks Influence Voting on the Supreme Court?
Adam Bonica et al.
Stanford Working Paper, February 2017
We study the influence of law clerks on judicial voting by Supreme Court justices. We exploit the timing of the clerkship hiring process to link variation in clerk ideology to variation in whether a justice casts a liberal or conservative vote. To measure clerk ideology, we match clerks to their political campaign contributions disclosed to the Federal Election Commission. We document a positive and statistically significant effect of clerk ideology on judicial voting. Our results suggest that moving from moderate liberal clerks (with ideology in the 25th percentile of U.S. donors) to moderate conservative clerks (with ideology in the 75th percentile of U.S. donors) would increase a justice's conservative voting rate by about 5% each term. We find larger effects in cases that are higher profile, cases that are legally significant, and cases in which the justices are more evenly divided. We interpret our results as providing suggestive evidence that clerk influence operates through persuasion rather than delegation of decision-making responsibility.
The Influence of Legislative Reappointment on State Supreme Court Decision-Making
State Politics & Policy Quarterly, forthcoming
Most state supreme court justices have time-bound terms that require them to be reappointed or reelected after a certain amount of time. In three American states, South Carolina, Vermont, and Virginia, the legislature has the sole power to retain justices. Legislatures, and their specialized judiciary committees, are well positioned to monitor judicial behavior and can reject retention for justices who are unacceptable. This turns the legislature's oversight authority into influence over policy making by justices who still need to be reappointed to additional terms. But some justices (co-partisans) are insulated from this influence by their connections to the majority party, which substantially increases the likelihood of their retention. I show that, between 1995 and 2014, justices appointed by the minority party who were eligible for a new term voted more in line with the preferences of their legislature than those who were no longer eligible for a new term due to mandatory or voluntary retirement. No similar effect is found among appointees of the majority party. To support my argument that it is the legislature's reappointment authority that gives them this power, I conduct a placebo test to show that governors in these states enjoy no comparable influence on reappointment-seeking justices. This legislative influence represents a substantial limitation on judicial independence.
Public Mood, Previous Electoral Experience, and Responsiveness Among Federal Circuit Court Judges
Ryan Owens & Patrick Wohlfarth
American Politics Research, forthcoming
Whether public opinion influences federal judges is a question that has long motivated - but often eluded - scholars. In this article, we examine two related questions: First, whether federal circuit court judges respond to circuit-level public opinion and, second, whether judges with extensive past elected political experience are even more responsive. The data show that circuit judges indeed respond to public opinion. The results also suggest that judges with greater past elected political experience may be more responsive. The results have implications for democratic control of the unelected judiciary, and suggest that appointing judges with electoral experience could, for better or worse, lead to a more majoritarian judiciary.
The Legal Academy's Ideological Uniformity
Adam Bonica et al.
Stanford Working Paper, April 2017
We compare the ideological balance of the legal academy to the ideological balance of the legal profession. To do so, we match professors listed in the Association of American Law Schools Directory of Law Teachers and lawyers listed in the Martindale-Hubbell directory to a measure of political ideology based on political donations. We find that 15% of law professors, compared to 35% of lawyers, are conservative. After controlling for individual characteristics, however, this 20 percentage point ideological gap narrows to around 13 percentage points. We argue that this ideological uniformity marginalizes law professors, but that it may not be possible to improve the ideological balance of the legal academy without sacrificing other values.
Lobbying Justice(s)? Exploring the Nature of Amici Influence in State Supreme Court Decision Making
Jenna Becker Kane
State Politics & Policy Quarterly, forthcoming
Most studies of amicus influence in both federal and state courts assume that the information provided in these briefs is the mechanism through which amici influence court outcomes. However, the question of how individual state supreme court judges respond to this third-party information and whether or not judicial responses are conditioned by differing methods of judicial retention is rarely theorized. Using social-psychological theories of confirmation bias and motivated reasoning, this article investigates how ideological predispositions and electoral institutions structure the responsiveness of state high-court judges to amicus brief information. Utilizing an original dataset of more than 14,000 votes of state high-court judges across three distinct areas of law, this article tests competing theories of amicus influence to determine how state high-court judges utilize amicus information to render judicial decisions. Results are generally supportive of the informational theory of amicus influence in complex areas of law. However, a conditioning relationship of retention method suggests that competitive elections may alter the mechanism of amicus brief influence such that judicial responsiveness to third-party briefs is more closely tied to the reelection and campaign fundraising considerations of individual judges in politically contentious areas of law.
Snap Judgment: Implicit Perceptions of a (Political) Court
Thomas Hansford, Chanita Intawan & Stephen Nicholson
Political Behavior, forthcoming
Do people fundamentally perceive the Supreme Court as a political institution? Despite the central importance of this question to theories of public evaluations of the Court and its decisions, it remains largely unanswered. To this end, we develop a new, implicit measure of political perceptions of the Court. This new measure relies on a categorization task wherein respondents quickly associate political or non-political attributes with the Supreme Court relative to institutions that are high or low in politicization. We find that the public implicitly perceives the Court as less political than Congress (high politicization) and more political than traffic court (low politicization) and that this measure is distinct from self-reported (explicit) perceptions of politicization. Finally, we find that implicit perceptions have a distinct effect on predicting diffuse support for the court and specific support for one of two Court decisions.