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Abstract:During a Democratic presidential primary debate, then-candidate Joe Biden exclaimed “I’m looking forward to making sure there’s a Black woman on the Supreme Court to make sure we in fact get everyone represented.” Recent United States election cycles continue to bring record gains for women in Congress and state legislative bodies. However, women, particularly women of color, remain woefully underrepresented in the federal judicial hierarchy and across state judiciaries. Despite their growing representation, women jurists face unique challenges in terms of candidate emergence and evaluation. This article discusses factors that promote, and hinder, the descriptive representation—the degree to which representatives reflect demographic characteristics and experiences of their electors—of women across the federal and state judiciary. As Biden’s quote illustrates, those with appointive authority can help move judicial diversity forward; however, structural and institutional blockages at all stages of the legal career pipeline continue to obstruct true judicial gender parity.

ABSTRACTWhen ruling on executive power challenges, judges will exhibit increased deference if faced with the threat of retaliation or non-enforcement from the executive. However, in cases involving executive power, legislatures play a key role in determining whether judges rule against the executive. When equipped with a legislative “ally” the threat of executive retaliation decreases, thus reducing the necessity of strategic behavior on the part of judges, particularly judges whose preferences diverge from the executive. Using an original dataset of cases involving challenges to state executive power between 1980 and 2010, I find that preference congruence with the state legislature affects whether judges defer to executive power. However, the effect of a legislative ally depends on the ideological distance between the judge and the executive. Although many separation of power analyses focus on the conflict between legislatures and courts, legislatures can assist in facilitating judicial independence when courts monitor executive power.

Do judges defer to executives with increased institutional control over the executive branch? Administrative agencies play a key role in the policy implementation process. Executives could view aggressive judicial review of executive branch activity as a threat to executive power and negatively respond to perceived judicial intrusions. Governors across the country possess varying amounts of institutional authority over the agencies that comprise their states’ executive branches. For example, in many states, executive branch officials are elected by the public or appointed by someone other than the governor. Increased fragmentation increases the difficulty of centralized management and decreases gubernatorial influence over the executive branch. I examine whether state supreme courts defer more to agencies in states where governors have more formal control over the executive branch. I find that state supreme courts are more likely to rule in favor of state administrative agencies in states where the governor has increased appointment power and increased power to review agency rulemaking.