The Least Dangerous Branch

Kevin Lewis

December 17, 2009

The Supreme Court and Issue Attention: The Case of Homosexuality

Joseph Daniel Ura
Political Communication, October 2009, Pages 430-446

Previous studies have shown that a small number of Supreme Court decisions that "rearrange[d] the...distribution of political benefits" have drawn the media's attention to the underlying issues involved in those cases. This article provides an additional test of that empirical claim, examining the effects of the Supreme Court's gay rights cases on media coverage of homosexuality from 1990 to 2005. The data indicate that Supreme Court decisions that expanded the scope of gay rights increased coverage of homosexuality in both The New York Times and USA Today, while cases that affirmed the existing scope of gay rights had no such effect.


Originalism in a Digital Age: An Inquiry into the Right to Bear Arms

Nathan Kozuskanich
Journal of the Early Republic, Winter 2009, Pages 585-606

The recent Washington, D.C., gun case, District of Columbia v. Heller, brought the question of the meaning of the Second Amendment before the U.S. Supreme Court for the first time in almost 70 years. Both the majority and minority opinions attempt to lay claim to original intent, with history playing a leading role. Both opinions, and particularly Scalia's majority opinion, lack a coherent historical methodology. This article explores a new avenue of research: comprehensive digital archives with keyword search capabilities. Such archives introduce thousands of new documents to the debate and help scholars to recover the usage and meaning of key constitutional phrases like "bear arms." These digital databases reveal the limitations of the individual and collective rights paradigms that have dominated debate over the Second Amendment, because both are unable to account for the civic responsibility of owning and bearing arms that is evident in the documents. Understanding that "bearing arms" meant fulfilling one's duty as a citizen to the common defense can account for personal firearm ownership while realizing that those arms were subject to robust regulation. Although digital research cannot be a substitute for traditional historical methods, it can give legal scholars access to a wealth of resources that have been relatively unused in constitutional research. Indeed, an historical focus on context and change over time can complement the legal focus on structure and precedent. Rather than move away from context, as the Heller decision encourages, digital research can restore originalist scholarship to its historical roots.


Law Versus Ideology: The Supreme Court and the Use of Legislative History

David Law & David Zaring
William & Mary Law Review, forthcoming

Much of the social science literature on judicial behavior has focused on the impact of ideology on how judges vote. For the most part, however, legal scholars have been reluctant to embrace empirical scholarship that fails to address the impact of legal constraints and the means by which judges reason their way to particular outcomes. This Article attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court's use of a particular interpretive technique - namely, the use of legislative history to determine the purpose and meaning of a statute. We analyzed every opinion in every Supreme Court statutory interpretation case from 1953 through 2006 that involved a frequently interpreted federal statute. We also collected original data on the characteristics of each statute, including its age, length, complexity, obscurity, and the number of times that it had been amended. We then used logit regression analysis to evaluate the impact of these characteristics, as well as the ideological tilt of the justices and their opinions, on the likelihood that a justice would cite legislative history in a given opinion. We find overall that the use of legislative history is driven by a combination of legal and ideological factors. On the whole, the legal variables have a significantly larger impact on the likelihood of legislative history usage than the ideological variables, but the impact of the ideological variables cannot be dismissed. Statutes that are longer or more complex increase the likelihood of legislative history usage, whereas frequent amendment of a statute decreases that likelihood. The age of the statute also matters, but its effect is neither linear nor monotonic: very new and very old statutes are more likely to elicit legislative history usage than statutes of intermediate age. Majority opinions are significantly more likely to cite legislative history than dissenting opinions, which are in turn more than twice as likely to cite legislative history as concurring opinions. The evidence also suggests that the use of legislative history by one justice prompts other justices to respond in kind with legislative history arguments of their own. With respect to the impact of ideological factors, liberal justices are generally more likely than conservative justices to cite legislative history. We found no support, however, for the proposition that justices use legislative history instrumentally in order to reach their ideologically preferred outcomes: legislative history usage does not affect the likelihood that a justice will arrive at his or her preferred outcome. Moreover, contrary to what some scholars have suggested, we also found no evidence that Justice Scalia has persuaded other justices to refrain from citing legislative history in their own opinions. Rather, the decline in the overall use of legislative history since the mid-1980s reflects a rightward shift in the ideological composition of the Court, as liberal justices who were inclined to cite legislative history have been replaced by conservative justices who are not inclined to do so.


Cognitive Dissonance on the U.S. Supreme Court

Paul Collins
Political Research Quarterly, forthcoming

This research examines the applicability of cognitive dissonance theory to explain a judge's decision to author or join a separate opinion. The author proposes that, when a judge casts a counterattitudinal vote, that judge will endeavor to reduce the aversive consequences of being viewed as an inconsistent decision maker by justifying his or her attitudinally incongruent vote choice to the public in a separate opinion. The author tests this possibility by examining U.S. Supreme Court justices' decisions to author or join concurring and dissenting opinions during the 1946 to 2001 terms. The empirical results provide qualified support for the use of separate opinions as dissonance reduction mechanisms, suggesting that dissonance theory both is applicable to the actions of elite decision makers and enjoys validity outside of a laboratory setting.


The Value of Information in the Court - Get it Right, Keep it Tight

Matias Iaryczower & Matthew Shum
Caltech Working Paper, October 2009

We estimate an equilibrium model of decision-making in the US Supreme Court which takes into account both private information and ideological differences between justices. We present a measure of the value of information in the court. Our measure is the probability that a justice votes differently that what she would have voted for in the absence of case specific information. We show that in roughly 44% of cases, justices' initial leanings - based on their priors and ideological biases - are changed by justices' personal assessments of the case. The results suggest a sizeable value of information. We evaluate the performance of the Court in different issues and time periods, and use counterfactual simulations to draw implications for institutional design.


Strategic Statutory Interpretation by Administrative Agencies

Yehonatan Givati
American Law and Economics Review, forthcoming

Many statutes are administered by administrative agencies. This paper shows that, when interpreting an ambiguous statute, administrative agencies choose between two strategies of statutory interpretation: the risky strategy, a relatively aggressive interpretation that provokes an appeal by the firm; and the safe strategy, a relatively nonaggressive interpretation that the firm complies with. The paper also shows that a change in the level of judicial deference may result in a shift from the risky strategy to the safe one, or vice versa. Therefore, contrary to the commonly held view, an increase in the level of judicial deference may result in agencies choosing a less aggressive statutory interpretation, and in more court decisions reversing agencies' statutory interpretation.


The Depreciation of Precedent on the U.S. Supreme Court

Ryan Black & James Spriggs
Washington University Working Paper, June 2009

An enduring piece of legal wisdom contends both that the value of court opinions depreciates as they age and that a variety of factors lead some cases to depreciate faster than others. We systematically test these expectations by examining the rate at which U.S. Supreme Court precedents depreciate between the 1946 and 2004 Terms. Our statistical results indicate, first, that a precedent's age has the most pronounced influence of any variable on depreciation, and, second, that almost none of the other factors appreciably affect depreciation. There is only one exception to this latter conclusion, and the "history" of a case, as observed through the patterns in previous case citations, influences depreciation. But, even the strength of that relationship substantially depends on the age of a case. Third, we show studies overestimate the effect of nearly every variable previously used to explain case citations because those variables become less influential as cases age.


Politics, Pragmatism, and Departures from the U.S. Courts of Appeals, 1954-2004

Richard Vining
Social Science Quarterly, December 2009, Pages 834-853

Objective: This article uses Cox proportional hazards models to explain departures from the U.S. Courts of Appeals from 1954-2004. I argue that reforms to pension eligibility and financial incentives in 1984 extended opportunities for voluntary departures and strategic behavior, and that reasons for quitting (whether political, personal, or institutional) differed among types of departures and over time.

Methods: The data represent all judge-years from 1954-2004. Both the full period and 1954-1983 and 1984-2004 subperiods are examined.

Results: The effects of political factors are limited to partial retirements and suggest judges' recognition of contentious confirmation politics since the 1980s. Personal and institutional variables dominate outright departures.

Conclusions: Explanations for departures from the circuit bench differ both by type and over time. Scholars and policymakers should refine arguments regarding judicial turnover and its causes.

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