Packing the Court

Kevin Lewis

June 17, 2022

Political Context, White House Centralization, and the Timing of Presidential Nominations to the Federal Courts
Justin Pottle & Jon Rogowski
Presidential Studies Quarterly, forthcoming 

Judicial nominations offer presidents one of their most important and enduring sources of influence. Studying all vacancies in federal district courts from 1961 to 2018, we show that presidents announce nominations to vacant judgeships at systematically faster rates in districts that provided greater electoral support. This pattern emerged most clearly in the last four decades and has strengthened over time. Additional evidence illustrates how presidential nomination strategies have distributional consequences for the courts' institutional capacity. Our results provide suggestive evidence about how the centralization of presidential decision making affects nominations to the federal courts and highlight a mechanism through which the president can influence the institutional capacity of adjoining branches of government. 

Bound by Bostock: The effect of policies on attitudes
Cameron Deal
Economics Letters, forthcoming

Do laws affect attitudes? Traditional models of policy creation emphasize how public opinion shapes policy but isolating the effect of one on the other is empirically challenging. The unexpected and exogenous nature of the Bostock v. Clayton County Supreme Court decision, which banned employment discrimination for LGBT (Lesbian, Gay, Bisexual, and Transgender) people, lends credibility to the notion of isolating the effect of policies on attitudes. Additionally, the Bostock decision affects labor market policy, while prior work on the relationship between policies and attitudes has primarily examined changes in social policy. I use the Supreme Court's ruling in Bostock, paired with state variation in LGBT employment protections to estimate difference-in-differences and event study models to demonstrate that states that were "bound by Bostock" experienced a reduction in unfavorable attitudes towards LGBT people, supporting a legitimacy model of policy effects on attitudes. Finally, I examine heterogeneity in effects and find suggestive evidence that those who are interested in government, are male, or are Republican drive effects. 

Appellate court assignments as a natural experiment: Gender panel effects in sex discrimination cases
Robert Erikson
Journal of Empirical Legal Studies, June 2022, Pages 423-446

This paper argues that estimating causal effects on US Appellate Court panels can be advanced by analyzing the data as a series of natural experiments, fully exploiting the as-if random assignment of judges to cases. As a template, this paper reanalyzes Boyd et al.'s data on sex-discrimination cases. The question is the impact on the votes by male judges from having a female judge on their panel. Leverage from as-if random assignment can be exploited only by restricting comparisons of treatments cases (in the example, female co-panelist) exclusively to control cases (all-male panels) from the same period and time period from which the treatment cases are drawn. With as-if random assignment reducing the possibility of a biased estimate, the results confirms a gender panel effect similar in size to the claim by Boyd et al. Restricting comparisons to within the same circuit and time period further advances understanding of the causal mechanism. When male or female judges side with female plaintiffs, the females are more persuasive at swaying the votes of their male co-panelists' votes. 

Race, gender, and place: How judicial identity and local context shape anti-discrimination decisions
Christopher Kleps
Law & Society Review, June 2022, Pages 188-212

While federal anti-employment discrimination laws have helped diminish inequality at work, discrimination persists, in part perhaps due to unequal handling of equal employment lawsuits. Prior research demonstrates that the definition of discrimination can vary based on local normative ideas, while another line shows that a judge's race or gender can shape how related lawsuits are handled. In this article, I draw on a set of EEOC workplace discrimination cases prosecuted in Federal Court and combine it with locality data, to analyze: (1) the impact of local context, specifically rurality, local political context, and southerness and; (2) how judges' race and gender interact with the local cultural-milieu. Findings reveal that plaintiffs of colour in race discrimination cases fair worse in rural courts or before white judges. Meanwhile, white judges in conservative areas are more defendant friendly than those in more liberal areas. Black judges, in comparison, are more plaintiff friendly in conservative areas when compared to black judges in more liberal areas. While female judges are generally more plaintiff friendly than male judges in sex cases, location has no discernible effect.

Submerged Independent Agencies
Brian Feinstein & Jennifer Nou
University of Pennsylvania Law Review, forthcoming

Independent agencies are in the judicial crosshairs. Scholars criticize their efficacy - while still puzzling over how to define the form. By and large, this attention focuses on the top of the agency hierarchy, the extent to which agency heads are insulated from presidential control. What this perspective misses, however, is that power is also exercised by tenure-protected civil servants below. This phenomenon exists not because Congress has delegated them authority, but because executive branch actors have. Consequently, there exists another species of independent agency that requires a reckoning: call them "submerged independent agencies." These entities are "agencies" because they wield discretionary governmental authority. They are "independent" because they are headed by career staff removable only for cause. And they are "submerged" in that they are relatively unknown to scholars, judges, and sometimes even agency heads themselves. This Article introduces the concept of submerged independent agencies, sheds light on their scope, and reflects upon the resulting normative implications. Using over forty years of data drawn from the Federal Register, the analysis reveals that when political appointees delegate their statutory authority, the majority of these powers go to civil servants rather than fellow appointees. Once granted, they are rarely revoked. This behavior appears to be driven by strategic political considerations. For example, subdelegations to civil servants in executive agencies occur more frequently during the midnight period before a presidential transition - perhaps indicating an effort to entrench preferences. In addition, subdelegation may be less common during periods of divided party control between the presidency and House. This behavior may reflect an attempt to avoid provoking congressional ire by reassigning powers that Congress had bestowed on others. These findings raise several legal and normative concerns. Many submerged independent agencies are vulnerable to constitutional challenge and raise difficult statutory questions. Whether the phenomenon is ultimately desirable for the administrative state is an open, empirical question. On the one hand, subdelegations raise the prospect of agency burrowing and entrenchment, and thus diminish political accountability. On the other hand, they can foster expertise and reduce ossification by dispersing decision-making authority within an agency. Accordingly, we consider various institutional mechanisms to help political actors navigate these tradeoffs, such as processes for reviewing actions taken pursuant to delegated authority; regular sunsets of such authority; and a more robust process of revisiting subdelegations during presidential transitions.

Political Ideology and Judicial Administration: Evidence from the COVID-19 Pandemic
Adam Chilton et al.
University of Chicago Working Paper, May 2022 

We investigate whether political ideology affects the administration of the judiciary in an area with strong political valiance: setting courthouse policies during the COVID-19 pandemic. We do so using novel data on judicial orders and a new identification strategy that leverages three features of the federal judiciary: many states have multiple judicial districts, many districts have courthouses in multiple cities, and randomness in the partisan affiliation of the chief judges from the rules governing the appointment of a chief in a district. Our research design isolates the effect of chief ideology using placebo tests that difference out unobserved district-level effects from the effects of the ideology of the actual chief judge. We find strong evidence that political ideology influenced management of the judiciary during the pandemic: Republican-appointed chief judges were less likely to require masks to be worn but more likely to suspend in-person trials.

Estimating eviction prevalence across the United States
Ashley Gromis et al.
Proceedings of the National Academy of Sciences, 24 May 2022

Drawing on 99.9 million court records, we construct national estimates of the annual prevalence of eviction filings and households threatened with eviction in the United States. Using Bayesian hierarchical modeling, we reconcile data from multiple sources to create comprehensive estimates permitting comparisons of eviction filing risk within and between states. This method indicates that relying solely on court-issued data undercounts eviction filings by approximately 1 million cases a year due to omission of counties for which these data cannot be obtained. In an average year between 2000 and 2018, landlords filed more than 3.6 million eviction cases, resulting in almost 7% of renting households facing an eviction lawsuit. During this time, the number of eviction filings nationally increased by 21.5%; however, an expanding renter population has outpaced the growth in filings, resulting in declining filing rates in recent years. Nationwide data reveal stark disparities in eviction filing rates between states that are not explained by variation in sociodemographic composition. Rather, regression discontinuity models indicate a robust association between a simple housing policy - requiring landlords to provide notice to tenants prior to filing an eviction case for nonpayment of rent - and the county-level eviction filing rate, demonstrating that larger structural factors, including state-level landlord-tenant law, could play an important role in shaping risk of receiving an eviction filing. We make aggregated data publicly available to serve as a tool for researchers, policymakers, and members of the public to examine the prevalence, causes, and consequences of eviction lawsuits.

Political Hearings Reinforce Legal Norms: Confirmation Hearings and Views of the United States Supreme Court
Christopher Krewson
Political Research Quarterly, forthcoming

Does the political nature of modern judicial confirmation hearings lead the public to think of the Supreme Court as a political body? Some political actors inevitably attack the institution during a confirmation hearing - which should lead to a decrease in support for it - but they attack the Court for acting extra-judicially. More generally, confirmation hearings send the American public an important and universal message: that the Supreme Court at least ought to be a legal institution. Based on original panel data closely surrounding the confirmation hearings of Supreme Court nominee Amy Coney Barrett, I find that confirmation hearings lead the public to place greater value on the non-political characteristics of a judge. While Supreme Court legitimacy reduced among Democrats over the course of the hearings, all respondents (including Democrats) became more likely to emphasize the importance of the legal qualities in a judge. For Democrats, the data suggests these two processes (reduced legitimacy and increased emphasis on a judge's legal characteristics) worked independently. For Republicans - and consistent with positivity bias theory - enhanced legitimacy was predicted by a decrease in focus on the political aspects of a judge over the course of the confirmation hearing.

Motivated Reasoning and Attitudes Towards Supreme Court Confirmation Hearings: Evidence from Five Nominations and an Experiment
Alex Badas
Political Research Quarterly, forthcoming

Relying on theories of motivated reasoning, I hypothesize that individuals who favor a nominee will prefer a legalistic confirmation hearing, while those who oppose a nominee will prefer a politicized confirmation hearing. Analyzing survey data from five recent nominees and a survey experiment, I find support for this hypothesis. The results have implications for how the public interacts with the nature of the Court's hybrid institutional structure. Specifically, I argue the results support the notion that the public engages in a political calculation when making judgements about the Court. When it serves their preferences, people will view the Court as a legalistic institution; however, when individuals believe there is an advantage in viewing the Court as a political institution, they are more likely to desire the Court to be evaluated in political ways.

Comparing witness performance in the field versus the lab: How real-world conditions affect eyewitness decision-making
Mitchell Eisen et al.
Law and Human Behavior, June 2022, Pages 175-188

Participants (N = 719) witnessed the theft of a laptop computer and were asked to identify a suspect from a live show up, a photographic show up, or a photographic lineup administered under either field or lab conditions. In the field condition, uniformed officers functioned as experimenters and participants were immersed in what they were led to believe was an actual police investigation. In the lab condition, participants were debriefed before the identification procedure that the theft was staged for research purposes and that their identifications were being made as part of a study on eyewitness memory.

As predicted, witnesses were overconfident in their show up identifications made under field but not lab conditions, and high-confidence identifications were more likely to be correct when using lineups compared with show ups. Also as expected, field conditions led witnesses to lower their criterion for choosing with show ups regardless of culprit presence. However, the opposite was true for lineups, such that field conditions resulted in witnesses raising their criterion for choosing.

State versus federal wiretap orders: A look at the data
Jason Chan, Jin-Hyuk Kim & Liad Wagman
International Review of Law and Economics, June 2022

Federal and state law enforcement interceptions of communications, as authorized by the Electronic Communications Privacy Act and analogous state laws, are contingent on obtaining a court order. We investigate how wiretap orders have been utilized in narcotics cases across the federal and state court systems. We characterize a sorting mechanism that is consistent with our data and empirical findings, whereby federal wiretap orders trade off prosecution outcomes and crime deterrence more quickly than state wiretap orders. We also find that the intensity of surveillance in most states and years is at the lower end of the enforcement-deterrence trade-off, reflecting the high cost of running wiretap operations.


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