Policy Design and Implementation Effectiveness

This study examines the successful implementation of a major structural change in a county criminal court, an institution particularly resistant to change. Implementation effectiveness is mainly attributed to policy design factors, especially the establishment by "lop" slate Supreme Court officials of an institutional mechanism to implement their selected policy goals. Composed of hey county court participants at the "bottom," the mechanism facilitated lateral coordination among divergent interests by providing a forum for bargaining and the resolution of disputes. The bargaining entailed the distribution of benefits, as well as the externalization and redistribution of costs, arising from the structural changes.     

Explaining Supreme Court Policymaking in Civil Rights: The Influence of the Solicitor General, 1953–2002

What factors explain Supreme Court policymaking in civil rights cases? Despite the importance of this question of law and policy, few empirical studies have explored the problem on the area of racial and ethnic discrimination. This study seeks to fill this gap by assessing the importance of the solicitor general, the federal government's representative before the Supreme Court, as a litigant and in the filings of amicus curiae briefs. The findings confirm that the solicitor general's presence in civil rights cases does matter when explaining whether the Supreme Court reaches a liberal or conservative outcome. This research demonstrates the significance of executive‐judicial interaction in explaining Supreme Court policymaking in civil rights cases.     

The Judicial Bookshelf

“The good that Presidents do is often interred with their Administrations. It is their choice of Supreme Court Justices that lives after them.” ¹ This was the assessment offered by one leading opinion journal more than seven decades ago, after President Franklin D. Roosevelt nominated Professor Felix Frankfurter to the Supreme Court to fill the opening occasioned by the death of Justice Benjamin N. Cardozo. Because vacancies on the Court not only are infrequent but also occur at irregular intervals, the comment illustrates the reality that selection of Justices is among the most important and consequential responsibilities that fall to any chief executive.     

The Marginality Hypothesis and Supreme Court Confirmation Votes in the Senate

Studies of Supreme Court confirmations have found that a senator's vote is primarily determined by his or her ideological proximity to a nominee and that nominee's objective qualifications. This literature does not account for the extent to which a senator's electoral safety may enhance or mitigate the effects of ideology or qualifications. We argue that senators from less competitive states are more likely to eschew a nominee's qualifications in favor of their own ideological preferences. By analyzing roll call data on confirmation votes from Byron White to Elena Kagan, we support this argument and add an intriguing new piece to the puzzle underlying the changing dynamics of Senate confirmation voting.     

The Development of the Supreme Court Practice of Calling for the Views of the Solicitor General

"When the Supreme Court invites you, that's the equivalent of a royal command. An invitation from the Supreme Court just can't be rejected." ¹ The guest most frequently invited to the Supreme Court is the Solicitor General. Even before the practice of the Supreme Court calling for the views of the Solicitor General process developed, the Court occasionally invited the Solicitor General to participate as amicus in important cases by submitting a brief and/or participating in oral arguments before the Court. ² As then–Solicitor General Simon E. Sobeloff remarked to then–Attorney General Herbert Brownell in a 1954 letter about the landmark school desegregation cases, "The Supreme Court has expressly extended an invitation to the United States to participate in the reargument. While this by no means compels participation, such an invitation is not to be lightly declined." ³     

The Judicial Bookshelf

Standard nomenclature in Supreme Court literature contrasts the "old Court" and the "new Court" (or, sometimes, the "modern Court"). By most accounts, the dividing line between the two falls during the years 1937–1940, when the nation witnessed a judicial and constitutional revolution. The proverbial "irresistible force" (in the form of President Franklin Roosevelt's New Deal program to cope with the Great Depression) met the "immovable object" (in the guise of the Supreme Court under the leadership of Chief Justice Charles Evans Hughes that, for a short time, stymied many of the President's initiatives). The result was Roosevelt's audacious assault on the Court through the Court-packing plan and the hasty change of mind by Hughes and Justice Owen J. Roberts that gave Roosevelt the five sure votes he needed so that his agenda could receive the constitutional stamp of approval. This flip-flop was promptly followed by the Court's adoption of a new agenda for itself, one that elevated civil liberties into a preferred position in the hierarchy of constitutional values and demoted property interests, which heretofore had been accorded heightened judicial protection.     

"The Defendant Has Seemed to Live a Charmed Life": Hopt v. Utah: Territorial Justice, The Supreme Court of the United States, and Late Nineteenth-Century Death Penalty Jurisprudence

On March 7, 1887, the Supreme Court of the United States decided Fred Hopt's fourth appeal to that Court. The Utah Territory murderer's conviction had been reversed three times over seven years-his "charmed life"-but this time both his luck and his legal argument had run out: his fourth conviction was upheld. Justice Stephen J. Field dismissed Hopt's four major claims: that several members of the jury were improperly seated in spite of bias; that a doctor's evidence of cause of death was beyond the scope of his expertise; that the trial judge's "reasonable doubt" jury instruction was inadequate; and that the prosecutor's reference to the "many times the case had been before the courts" was prejudicial. Five months later, on August 11, Hopt was executed by a firing squad in the yard of the Utah Penitentiary. Hopt was only one of over two thousand convicted criminals, mostly murderers, who were legally executed in the United States in the two decades between 1880 and 1900. However, his defense team of court-appointed Salt Lake City lawyers had kept him alive for seven years. During that time he had four jury trials, four appeals to the Supreme Court of Utah Territory, and four appeals to the Supreme Court of the United States. He is the only death penalty litigant ever to be the subject of four full opinions of the Supreme Court of the United States.     

The Judicial Bookshelf

Decisions by the Supreme Court that are accorded "landmark" status are chiefly remembered for their holdings and effects. Such cases are also typically linked to a particular era of judicial history, as Marbury v. Madison ¹ was to the Marshall Court and Jefferson's presidency, as Youngstown Sheet & Tube Co. v. Sawyer ² was to the Vinson Court and Truman's presidency, and as Miranda v. Arizona ³ was to the Warren Court and the tumultuous 1960s. But probably only serious students of the Court will recall that Marbury was decided in 1803, Youngstown in 1952, and Miranda in 1966. And fewer still will know, without first consulting a reference, that Marbury came down on February 24, the Steel Seizure Case on June 2, and Miranda on June 13. Scholars typically associate decisions with years, not the day of the month.     

Beginning to Write Separately: The Origins and Development of Concurring Judicial Opinions

While political scientists and legal academics have both evinced a “fascination with disagreement on courts,” ¹ this scholarly concentration on conflict rather than consensus has tended to focus on dissent and dissenting opinions. As far as we can tell, there is no authoritative history of concurring opinions in the U.S. Supreme Court. This article is a first effort to correct that oversight by examining developments and change in concurring behavior from the founding through the White Court (1921). This period covers the emergence of an institutionally independent national judicial branch and ends before the start of the modern, policy‐making Court era, which we argue begins with the Taft Court and the creation of a fully discretionary docket.     

Constructing British Authority in Australasia: Charles Cooper and the Legal Status of Aborigines in the South Australian Supreme Court,c. 1840–60

In 1840 the South Australian judge Charles Cooper wrote an opinion in which he suggested that Aborigines who had not been in contact with British settlers were not within the jurisdiction of the Supreme Court. The resulting controversy led the Colonial Office to clarify its view on the subjecthood of Aborigines within the colony and the colonial courts' jurisdiction over all subjects in the colony. The criminal jurisdiction of the Supreme Court over Aborigines became politically important because it raised wider questions of imperial authority and colonial policy. By placing Cooper's views in a broader Australasian perspective, the formation of Colonial Office policy and the distinctions between legal categories that informed that policy may be better appreciated. Cooper continued to question the general application of Supreme Court jurisdiction to Aborigines into the late 1840s. This caused a clash with Lieutenant-Governor Robe, who felt that any weakness in the formal authority or jurisdiction of the courts threatened the ability of the government to implement effective policies.     

A Transformed Triangle: Court, Congress, and Presidency in Civil Rights

The relative permeability of the three elements of a triangle-the Supreme Court, Congress, and the president-to civil rights interest groups has varied over time. For almost two decades after World War II, the Supreme Court was the groups' preferred arena because Congress was resistant and presidents could thus do little or were hesitant to act. For a brief time in the mid-1960s the president and Congress became supportive of civil rights groups' claims while the Court also remained accessible. Starting in the late 1960s executive and legislative support for civil rights moderated, with presidential support declining significantly in the 1980s. When the Supreme Court adopted that latter stance, Congress became the body through which to protect civil rights by reversing the Court's decisions. In this examination of the "transformed triangle" in civil rights policymaking, we look at this change over time and at "flip-flops" in litigation as one administration changes the position espoused by its predecessor, and we also give some attention to the Supreme Court's response to congressional reversal of its rulings.     

The Public Response to Controversial Supreme Court Decisions: The Insular Cases

In the Insular Cases, the Supreme Court established a new category of areas and persons coming under the sovereignty of the United States. Added to (1) the member states of the Union and (2) the existing territories (and states to be), was (3) territory "belonging to" the United States, but not a part of it. Justice Edward White proposed this doctrine—that territories were of two types, "incorporated" territories, those fit to be states, and non-incorporated territories, to be the property of the United States—in his concurring opinion in Downes v. Bidwell . ¹ Congress could govern these latter territories as it wished, subject to "fundamental" protections under the Constitution, those protecting individual liberties rather than those granting political participation.     

Tools for identifying partisan gerrymandering with an application to congressional districting in Pennsylvania

In League of Women Voters v. Commonwealth of Pennsylvania (2018) the Pennsylvania Supreme Court struck down as a “severe and durable” partisan gerrymander the congressional map drawn by Republicans in 2011 and used in elections from 2012-2016. It did so entirely on state law grounds after a three-judge federal court had rejected issuing a preliminary injunction against the plan. After Pennsylvania failed to enact a lawful remedy plan of its own (due to total disagreement as to how to proceed between the newly elected Democratic governor and the still Republican-controlled legislature), the Court then ordered into place for the 2018 election a map of its own drawn for it by a court-appointed consultant. In a split court, the Court map was endorsed only by judges with Democratic affiliations. Here we compare the 2011 and 2018 congressional maps in terms of a variety of proposed metrics for detecting partisan gerrymandering. We also examine the remedy map proposed by a group of Republican legislators and that proposed by the Democratic governor. We conclude that the 2011 map was a blatant and undisguised pro-Republican gerrymander. Moreover, the remedy map proposed by Republican legislators was a covert pro-Republican gerrymander (what we refer to as a “stealth gerrymander”). The Democratic governor's proposed plan cannot be classified as a pro-Democratic gerrymander and indeed has, if anything, a slight pro-Republican tilt. The 2018 court-drawn remedial map, by all measures, was not a gerrymander.     

Punctuated Equilibrium and the Supreme Court

In the legislative and executive branches, policy scholars have used punctuated equilibrium (PE) theory to describe and explain patterns of change. However, there has been little examination of how PE might apply to courts and legal policy change. This article addresses that gap by providing evidence that legal policy change—here conceptualized as changes in what precedents the Supreme Court most often cites—is governed by PE theory. After making a prima facie case for the applicability of PE theory to the Court, I leverage network rankings of Supreme Court decisions to create a proxy for legal policy change that improves on existing measures. Using both a stochastic process model and an analysis of the punctuations the measure uncovers, I find strong evidence of PE processes.     

JURY DECISION MAKING MODELS AND THE SUPREME COURT: THE JURY CASES FROM WILLIAMS v. FLORIDA TO BALLEW v. GEORGIA*

This article analyzes recent U.S. Supreme Court decisions in cases relating to the size and unanimity of juries as an example of the use (and abuse) of social science by the Court in the realm of policy analysis. The four cases reviewed “cast an unflattering light on the U.S. Supreme Court's ability to integrate social science findings into public law.”     

Historical Consensual Norms in the High Court

There is a substantial political-science literature that discusses the notion of consensual norms in the US Supreme Court. Most of this literature assumes that consensual norms exist, rather than proving their existence. Caldeira and Zorn ( American Journal of Political Science 42: 874-902, 1998) use the method of cointegration developed in econometric time-series analysis to prove the existence of a single consensual norm in the US Supreme Court. This study applies cointegration analysis to historical time-series data on dissenting and single judgments to examine whether there is a single consensual norm in the High Court of Australia. The study finds that a single consensual norm does not underlie decision making in the High Court. This result is explained on the basis that the institutions underpinning decision making and the approach to decision making are different between the Australian High Court and the US Supreme Court.     

Public Opinion and Policymaking in the States: The Case of Post-Roe Abortion Policy

Whether public opinion should be expected to play a role in the shaping of abortion legislation in the states is a debatable question. Representation is a difficult task, especially if legislators receive mixed cues from the public, activists, and the political parties. In this study, we find that grass-roots activism and public opinion tend to match, and both are reflected in state abortion policy. In addition, more Pro-Life policies are found in states with a tradition of conservative policies in other areas, Republican majorities in the state legislature, more Catholic residents, and fewer women legislators. These patterns hold true for a composite index of abortion policies and for the specific policy area of government funding of abortions. Slightly different patterns occur for parental consent laws, though these statutes also tend to reflect general preferences on abortion and interest group activity in a state.     

Justice Sandra Day O'Connor: The Framers' "First Woman"

Sandra Day O'Connor's appointment to the Supreme Court was a historic stride in American women's slow but determined march towards full equality. At our nation's birth, Abigail Adams urged her husband and other members of the Continental Congress to "Remember the Ladies" in their new government. ¹ "We know better than to repeal our Masculine systems," John Adams replied only half jokingly. ² More than two centuries would pass before a woman donned Supreme Court robes to help interpret the United States Constitution.     

The Judicial Bookshelf

"In law, also, men make a difference," ¹ counseled Felix Frankfurter the year before his appointment to the Supreme Court. Frankfurter highlighted one of the three critical components of judicial decision-making in constitutional law: alongside the text of the Constitution itself and the cases that pose various questions for decision are the women and men who answer those questions. Those answers, as Frankfurter believed, are invariably influenced by the values Justices bring with them to the Bench. Yet he was expressing no newfound truth, but an awareness that had been apparent for a long time. "Impressed with a conviction that the true administration of justice is the firmest pillar of good government," President George Washington wrote future Attorney General Edmund Randolph in 1789, "I have considered the first arrangement of the judicial department as essential to the happiness of our country and the stability of its political system." To be sure, the Court's role in the political system was unclear, but Washington realized the impact the Court might have in the young Republic. This required, he told Randolph, "the selection of the fittest characters to expound the laws and dispense justice." ² And as he filled the six seats Congress had authorized for the Supreme Court, the first President made sure that each nominee was a strong supporter of the new Constitution.     

The Judicial Bookshelf

Laments about federal judges, Supreme Court Justices in particular, are nearly as old as the Republic. Those who say otherwise perhaps have either poor memories or a need to read more history. True, the Court has not been continuously caught up in strife, but controversies have occurred often enough to make Court-bashing a routine part of American political life.