Order in the court

Kevin Lewis

March 26, 2012

The Psychological Origins of a Constitutional Revolution: The Supreme Court, Birth Order, and Nationalizing the Bill of Rights

Kevin McGuire
Political Research Quarterly, forthcoming

One of the most significant changes in American law was the application of the Bill of Rights to the states. Some members of the U.S. Supreme Court enthusiastically supported the doctrine of incorporation, while others actively opposed it. Why? Evolutionary psychology posits that birth order can explain support for radical change; older siblings identify with authority and resist changes in the rules, while laterborns defy authority and are willing to alter the status quo. Applying the birth order hypothesis to the Court, the author finds that the incorporation revolution was led by laterborns, even after taking account of justices' political preferences.


Umpires as Legal Realists

William Blake
PS: Political Science & Politics, April 2012, Pages 271-276

During his confirmation hearings, then-judge John Roberts analogized the role of a judge to the role of a baseball umpire. Roberts argued that umpires do not make the rules; they simply apply them. Legal scholars have criticized Roberts from a legal realist perspective because the analogy misconstrues the nature of judging as formalistic. I believe Roberts also misconstrued the nature of umpiring as formalistic. Like judges, umpires must rely on their experience, rather than logic, because the rules of baseball are sometimes incomplete, indeterminate, and contradictory. On occasion, umpires even ignore the rulebook (justifiably). The judges-as-umpires analogy thus illustrates the differences between legal formalism and legal realism in a way that students can more easily understand.


The Changing Politics of Supreme Court Confirmations

Scott Basinger & Maxwell Mak
American Politics Research, forthcoming

Senate voting on Supreme Court nominees offers a window into macro-political continuity and change. Clashes over confirmations once were reserved for a handful of exceptional cases, but recently have become the norm. Party cohesion in the Senate has also experienced a recent, rapid increase. An analysis of votes on 43 Supreme Court nominees reveals that senators polarize in response to rising levels of average party loyalty. The analysis further reveals that a senator who individually is more loyal to his or her party will be more likely to adopt an extreme position on confirmation, even after controlling for the effects of rising aggregate partisanship. Once the partisan trend is taken into account, our analysis contradicts the conventional wisdom that Robert Bork's nomination instituted a "regime change" with a lasting effect on Senate voting patterns.


Campaign Support, Conflicts of Interest, and Judicial Impartiality: Can Recusals Rescue the Legitimacy of Courts?

James Gibson & Gregory Caldeira
Journal of Politics, January 2012, Pages 18-34

This article investigates citizen perceptions of the impartiality and legitimacy of courts, focusing on a state (West Virginia) that has recently been a battleground for conflict over campaign support, perceived conflicts of interest, and loss of impartiality. We employ an experimental vignette embedded within a representative sample to test hypotheses about factors affecting perceived judicial impartiality. Perhaps not surprising is our finding that campaign contributions threaten the legitimacy of courts. More unexpected is evidence that contributions offered but rejected by the candidate have similar effects to contributions offered and accepted. And, although recusal can rehabilitate a court/judge to some degree, the effect of recusal is far from the complete restoration of the institution's impartiality and legitimacy. The processes by which citizens form and update their opinions of judges and courts seem to involve preexisting attitudes, normative expectations of judges, and perceptions of contextual factors associated with judicial decision making.


Do Reasons Matter? The Impact of Opinion Content on Supreme Court Legitimacy

Dion Farganis
Political Research Quarterly, March 2012, Pages 206-216

Is Supreme Court legitimacy affected by the way justices explain their decisions to the public? Existing work shows a link between legitimacy and case outcomes but often overlooks the impact of opinion content. Using a novel experimental design, the author measures the effect of three different types of judicial arguments on public support for the Court. The results suggest that the rationales used by justices in their opinions can affect institutional legitimacy, but to a lesser degree than conventional wisdom suggests. Taken together with other recent legitimacy research, these findings have important implications and set the stage for follow-up research.


The Role of Case Complexity in Judicial Decision Making

Laura Moyer
Law & Policy, forthcoming

The literature on ideology and decision making offers conflicting expectations about how judges' ideology should affect their votes in cases that raise many legal issues. Using cases from the U.S. courts of appeals, I examine the strength of ideology as a predictor of sincere voting in single and multi-issue cases, and test whether the same effect for ideology can be seen for liberal and conservative judges. For all judges, ideology yields a larger effect as the number of issues increases; however, conservative judges are much more likely than liberal judges to cast sincere votes at all levels of complexity.


Racial/Ethnic Differentials in Sentencing to Incarceration

William Bales & Alex Piquero
Justice Quarterly, forthcoming

Few criminological topics are as controversial as the relationships between race, ethnicity, crime, and criminal justice outcomes - especially incarceration. This paper assesses whether Blacks and Hispanics are disadvantaged at the sentencing phase of the justice system and whether the findings depend on the use of traditional regression-based methods to control for legally relevant variables vs. the use of precision matching methods, which attend to potential sample selection bias that occurs when there are not exact matches for those sentenced to incarceration and non-incarceration. Analysis of the population of Florida offenders from 1994 to 2006 using both methodologies indicates that Black offenders continue to be disproportionately incarcerated compared to White or Hispanic offenders, and that Hispanic offenders were slightly more likely than White offenders to be incarcerated.


A Fair and Impartial Jury? The Role of Age in Jury Selection and Trial Outcomes

Shamena Anwar, Patrick Bayer & Randi Hjalmarsson
NBER Working Paper, March 2012

This paper uses data from over 700 felony trials in Sarasota and Lake Counties in Florida from 2000-2010 to examine the role of age in jury selection and trial outcomes. The results of the analysis imply that prosecutors are more likely to use their peremptory challenges to exclude younger members of the jury pool, while defense attorneys exclude older potential jurors. Having established that age has an important role in jury selection, the paper employs a research design that isolates the effect of the random variation in the age composition of the pool of eligible jurors called for jury duty to examine the causal impact of age on trial outcomes. Consistent with the jury selection patterns, the empirical evidence implies that older jurors are indeed more likely to convict. These results are robust to the inclusion of a broad set of controls for the racial and gender composition of the jury and a series of county, time, and judge fixed effects; almost identical effects are estimated separately for each county. These findings have implications for the role that the institution of peremptory challenges has on a defendant's right to a fair trial and to an eligible citizen's rights to serve on a jury.


Witnesses in Action: The Effect of Physical Exertion on Recall and Recognition

Lorraine Hope et al.
Psychological Science, forthcoming

Understanding memory performance under different operational conditions is critical in many occupational settings. To examine the effect of physical exertion on memory for a witnessed event, we placed two groups of law-enforcement officers in a live, occupationally relevant scenario. One group had previously completed a high-intensity physical-assault exercise, and the other had not. Participants who completed the assault exercise showed impaired recall and recognition performance compared with the control group. Specifically, they provided significantly less accurate information concerning critical and incidental target individuals encountered during the scenario, recalled less briefing information, and provided fewer briefing updates than control participants did. Exertion was also associated with reduced accuracy in identifying the critical target from a lineup. These results support arousal-based competition accounts proposing differential allocation of resources under physiological arousal. These novel findings relating to eyewitness memory performance have important implications for victims, ordinary citizens who become witnesses, and witnesses in policing, military, and related operational contexts.


Action Alters Object Identification: Wielding a Gun Increases the Bias to See Guns

Jessica Witt & James Brockmole
Journal of Experimental Psychology: Human Perception and Performance, forthcoming

Stereotypes, expectations, and emotions influence an observer's ability to detect and categorize objects as guns. In light of recent work in action-perception interactions, however, there is another, unexplored, factor that may be critical: The action choices available to the perceiver. In five experiments, participants determined whether another person was holding a gun or a neutral object. Critically, the participant did this while holding and responding with either a gun or a neutral object. Responding with a gun biased observers to report "gun present" more than did responding with a ball. Thus, by virtue of affording a perceiver the opportunity to use a gun, he or she was more likely to classify objects in a scene as a gun and, as a result, to engage in threat-induced behavior (raising a firearm to shoot). In addition to theoretical implications for event perception and object identification, these findings have practical implications for law enforcement and public safety.


Interrogation-Related Regulatory Decline: Ego Depletion, Failures of Self-Regulation, and the Decision to Confess

Deborah Davis & Richard Leo
Psychology, Public Policy, and Law, forthcoming

As reflected in rulings ranging from trial courts to the U.S. Supreme Court, our judiciary commonly views as "voluntary," and admits into evidence, interrogation-induced confessions obtained under conditions entailing stressors sufficient to severely compromise or eliminate the rational decision making capacities and self-regulation abilities necessary to justify such a view. Such decisions reflect, and sometimes explicitly state, assumptions soundly contradicted by science regarding the capacity of normal suspects lacking mental defect to withstand such stressors as severe fatigue, sleep deprivation, emotional distress - and aversive interrogation length, tactics and circumstances - and nevertheless resist the powerful pressures of the interrogation to self-incriminate. Notwithstanding excessive length and other severe interrogation-related stressors and tactics demonstrably associated with elicitation of false confessions, judges overwhelmingly admit confessions into evidence and juries overwhelmingly convict. In this review, we introduce the concept of "interrogation-related regulatory decline" (IRRD) - or decline in the self-regulation abilities necessary to resist the forces of influence inherent to interrogation. We review scientific evidence of the unexpected ease with which self-regulation abilities can be significantly compromised, with the hope that this evidence can (a) encourage more evidence-based objectivity, realism, clarity and specificity in the criteria for assessing voluntariness underlying admissibility decisions, (b) promote reforms aimed at prevention of interrogation practices entailing substantial risk of severe IRRD, and (c) encourage more scholarly research on acute sources of interrogative suggestibility.


Interrogational Torture: Or How Good Guys Get Bad Information with Ugly Methods

John Schiemann
Political Research Quarterly, March 2012, Pages 3-19

Debate about the sources of intelligence leading to bin Laden's location has revived the question as to whether interrogational torture is effective. Answering this question is a necessary - if not sufficient - condition for any justification of interrogational torture. Given the impossibility of approaching the question empirically, I address it theoretically, asking whether the use of torture to extract information satisfies reasonable expectations about reliability of information as well as normative constraints on the frequency and intensity of torture. I find that although information from interrogational torture is unreliable, it is likely to be used frequently and harshly.


Prosecution of Adult Sexual Assault Cases: A Longitudinal Analysis of the Impact of a Sexual Assault Nurse Examiner Program

Rebecca Campbell, Debra Patterson & Deborah Bybee
Violence Against Women, February 2012, Pages 223-244

Most sexual assaults are never reported to law enforcement, and even among reported cases, most will never be successfully prosecuted. This reality has been a long-standing source of frustration for survivors, victim advocates, as well as members of the criminal justice system. To address this problem, communities throughout the United States have implemented multidisciplinary response interventions to improve post-assault care for victims and increase reporting and prosecution rates. One such model is the Sexual Assault Nurse Examiner (SANE) program, whereby specially trained nurses (rather than hospital emergency department [ED] physicians) provide comprehensive psychological, medical, and forensic services for sexual assault victims. The purpose of this study was to examine whether adult sexual assault cases were more likely to be investigated and prosecuted after the implementation of a SANE program within a large Midwestern county. A quasi-experimental design was used to compare criminal justice system case progression pre-SANE to post-SANE. Results from longitudinal multilevel ordinal regression modeling revealed that case progression through the criminal justice system significantly increased pre- to post-SANE: more cases reached the "final" stages of prosecution (i.e., conviction at trial and/or guilty plea bargains) post-SANE. These findings are robust after accounting for changes in operation at the focal county prosecutors' office and seasonal variation in rape reporting. Implications for policy and practice are discussed.


Consensus, Disorder, and Ideology on the Supreme Court

Paul Edelman, David Klein & Stefanie Lindquist
Journal of Empirical Legal Studies, March 2012, Pages 129-148

Ideological models are widely accepted as the basis for many academic studies of the Supreme Court because of their power in predicting the justices' decision-making behavior. Not all votes are easily explained or well predicted by attitudes, however. Consensus in Supreme Court voting, particularly the extreme consensus of unanimity, has often puzzled Court observers who adhere to ideological accounts of judicial decision making. Are consensus and (ultimately) unanimity driven by extreme factual scenarios or extreme lower court rulings such that even the most liberal and most conservative justice can agree on the case disposition? Or are they driven by other, nonattitudinal influences on judicial decisions? In this article, we rely on a measure of deviations from expected ideological patterns in the justices' voting to assess whether ideological models provide an adequate explanation of consensus on the Court. We find that case factors that predict voting disorder also predict consensus. Based on that finding, we conclude that consensus on the Court cannot be explained by ideology alone; rather, it often results from ideology being outweighed by other influences on justices' decisions.


Dissensual Decision Making: Revisiting the Demise of Consensual Norms within the U.S. Supreme Court

Marcus Hendershot et al.
Political Research Quarterly, forthcoming

This analysis seeks to understand the decline of Supreme Court consensual norms often attributed to the failed leadership of Chief Justice Stone. A new unit of analysis - justice-level dissent and concurrence rates - supports an alternative view of observed increases in dissensual decision making. When these measures are estimated with time-series techniques, results offer evidence of multiple changepoints in this norm of the Court that both lead and lag Stone's elevation. Broader contextual explanations related to the alteration of the Court's discretionary issue agenda and its ideological and demographic composition also contribute to fractures in the once-unanimous voting coalitions.


Repeatability and Reproducibility of Decisions by Latent Fingerprint Examiners

Bradford Ulery et al.
PLoS ONE, March 2012

The interpretation of forensic fingerprint evidence relies on the expertise of latent print examiners. We tested latent print examiners on the extent to which they reached consistent decisions. This study assessed intra-examiner repeatability by retesting 72 examiners on comparisons of latent and exemplar fingerprints, after an interval of approximately seven months; each examiner was reassigned 25 image pairs for comparison, out of total pool of 744 image pairs. We compare these repeatability results with reproducibility (inter-examiner) results derived from our previous study. Examiners repeated 89.1% of their individualization decisions, and 90.1% of their exclusion decisions; most of the changed decisions resulted in inconclusive decisions. Repeatability of comparison decisions (individualization, exclusion, inconclusive) was 90.0% for mated pairs, and 85.9% for nonmated pairs. Repeatability and reproducibility were notably lower for comparisons assessed by the examiners as "difficult" than for "easy" or "moderate" comparisons, indicating that examiners' assessments of difficulty may be useful for quality assurance. No false positive errors were repeated (n = 4); 30% of false negative errors were repeated. One percent of latent value decisions were completely reversed (no value even for exclusion vs. of value for individualization). Most of the inter- and intra-examiner variability concerned whether the examiners considered the information available to be sufficient to reach a conclusion; this variability was concentrated on specific image pairs such that repeatability and reproducibility were very high on some comparisons and very low on others. Much of the variability appears to be due to making categorical decisions in borderline cases.


from the


A weekly newsletter with free essays from past issues of National Affairs and The Public Interest that shed light on the week's pressing issues.


to your National Affairs subscriber account.

Already a subscriber? Activate your account.


Unlimited access to intelligent essays on the nation’s affairs.

Subscribe to National Affairs.