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Interest groups often make their preferences known on cases before the U.S. Supreme Court via amicus curiae briefs. In evaluating the case and related arguments, we posit that judges take into account more than just the number of supporters for the liberal and conservative positions. Specifically, judges’ decisions may also reflect the relative power of the groups. We use network position to measure interest group power in U.S. Supreme Court cases from 1946 to 2001. We find that the effect of interest group power is minimal in times of heavily advantaged cases. However, when the two sides of a case are approximately equal in the number of briefs, such power is a valuable signal to judges. We also show that justice ideology moderates the effect of liberal interest group power. The results corroborate previous findings on the influence of amicus curiae briefs and add a nuanced understanding of the conditions under which the quality and reputation of interest groups matter, not just the quantity.

The actual impact of judicial decisions often depends on the behavior of executive and legislative bodies that implement the rulings. Consequently, when a court hears a case involving the interests of those controlling the executive and legislative institutions, those interests can threaten to obstruct the court's intended outcome. In this paper, we evaluate whether and to what extent such constraints shape judicial rulings. Specifically, we examine how threats of noncompliance and legislative override influence decisions by the European Court of Justice (ECJ). Based on a statistical analysis of a novel dataset of ECJ rulings, we find that the preferences of member-state governments—whose interests are central to threats of noncompliance and override—have a systematic and substantively important impact on ECJ decisions.

To understand and assess the impact that the law has on judicial decision-making on the U.S. Supreme Court, one must disentangle the effects of law and policy preferences. In this paper, we elaborate the fundamental character of this challenge, and then present a novel approach to measuring the effect - if any - of the law on justices' decisions. Key to our approach is the use of positions taken by political actors outside of the court who put less emphasis on legal considerations. The positions taken by these actors allow us to pin down policy elements of voting. We use these elements to identify statistically the effects of legal forces including adherence to precedent, judicial restraint in the form of deference to Congress and a strict interpretation of the First Amendment's protection of speech clause that may guide judicial decision-making. The evidence suggests that legal factors play an important role and that their effects vary across the justices in interesting ways.

This case study of late-nineteenth century federal courts in the United States sheds light on two seemingly unrelated questions of general interest to political scientists: What tools are available to party leaders who seek to institutionalize their policy agendas or insulate those agendas from electoral politics? and How do we account for expansions of judicial power? Using an historical–interpretive analysis of partisan agendas, party control of national institutions, congressional initiatives relating to federal courts, the appointment of federal judges, judicial decision making, and litigation patterns, I demonstrate that the increased power, jurisdiction, and conservatism of federal courts during this period was a by-product of Republican Party efforts to promote and entrench a policy of economic nationalism during a time when that agenda was vulnerable to electoral politics. In addition to offering an innovative interpretation of these developments, I discuss the implications arising from this case study for our standard accounts of partisan politics, political development, and the determinants of judicial decision making.

In their 1993 article in this Review, William Mishler and Reginald Sheehan reported evidence of both direct and indirect impacts of public opinion on Supreme Court decisions. Helmut Norpoth and Jeffrey Segal offer a methodological critique and in their own reanalysis of the data find, contrary to Mishler and Sheehan, no evidence for a direct path of influence from public opinion to Court decisions. Instead, they find an abrupt-permanent shift of judicial behavior consistent with an indirect model of influence whereby popularly elected presidents, through new appointments, affect the ideological complexion of the Court. In response, Mishler and Sheehan defend the direct public opinion linkage originally noted, at both individual and aggregate level; respond to the methodological critique; and offer further statistical analysis to support the aggregate linkages.

How does the U.S. Supreme Court reach decisions? Since the 1940s, scholars have focused on two distinct explanations.The legal modelsuggests that the rule of law (stare decisis) is the key determinant. Theextralegalmodel posits that an array of sociological, psychological, and political factors produce judicial outcomes. To determine which model better accounted for judicial decisions, we used Supreme Court cases involving the imposition of the death penalty since 1972 and estimated and evaluated the models' success in accounting for decisional outcomes. Although both models performed quite satisfactorily, they possessed disturbing weaknesses. The legal perspective overpredicted liberal outcomes, the extralegal model conservative ones. Given these results, we tested another proposition, namely that extralegal and legal frameworks present codependent, not mutually exclusive, explanations of decision making. Based on these results, we offer an integrated model of Supreme Court decision making that contemplates a range of political and environmental forces and doctrinal constraints.

This article offers a measure of judicial legitimation of marginal religious groups in litigation involving the free exercise of religion clause of the First Amendment. Throughout the greater part of history, marginal religious faiths have found the path to acceptance filled with legal obstacles. Pfeffer (1974) noted that legitimation of marginal groups occurs either when the secular norms change or when such groups change their religious doctrines. The Pfeffer thesis is generally consistent with the sect-church continuum defined by sociologists of religion. In the research reported below, we examined an alternative thesis, namely that official legitimation by the judiciary of marginal religions is a function of their marginality. We compared the results of the universe of all reported state and federal judicial opinions from 1946 through 1956 and 1970 through 1980. We found substantial increases in the percentage of successfully litigated free exercise claims, and furthermore, that success in litigating these claims is closely associated with those factors that distinguish these groups as marginal.

I show the intimate connection between the actions of the justices and support for the Supreme Court during one of the most critical periods of U.S. political history, the four months of 1937 during which Franklin D. Roosevelt sought legislation to “pack” the high bench with friendly personnel. Over the period from 3 February through 10 June 1937, the Gallup Poll queried national samples on 18 separate occasions about FDR's plan. These observations constitute the core of my analyses. I demonstrate the crucial influence of judicial behavior and the mass media in shaping public opinion toward the Supreme Court. This research illuminates the dynamics of public support for the justices, contributes to a clearer understanding of an important historical episode, shows the considerable impact of the mass media on public attitudes toward the Court, and adds more evidence on the role of political events in the making of public opinion.

The psychometric model, developed by Glendon Schubert, is a widely accepted way of conceptualizing judicial decision making. It entails the representation of justices' ideal points in a multidimensional space. A vector (representing the ordering of the justices derived from scalogram analysis) is projected through this space to aid in interpreting the underlying attitudinal dimensions of interagreement. Despite the apparent rigor of this model it contains certain indeterminacies, as no mathematical procedure has been used to determine the location of the scale vectors. Consequently ad hoc. hand procedures which may yield suboptimal solutions have been developed.This article provides solutions for the problem of fitting scale vectors to multidimensional configurations. These solutions are developed for the problem where the scale analogue is treated at the measurement level of interval or ordinal values. In order to demonstrate the advantages of using these procedures, we undertake a reanalysis of Schubert's results (for which he used ad hoc procedures). In one-half of the cases analyzed, the results reported by Schubert are suboptimal when evaluated in terms of the coefficient he sought to maximize. The mathematical solutions and the associated computer programs give greater rigor to the psychometric model and provide a response to the criticism that scale fitting in the psychometric model is subjective and inconsistent with the premises of the behavioral approach to judicial decision making.

When comparing states in the United States, one finds little correlation between state opinion and party control of the state legislature or between party control and state policy. Although these low correlations seeming to indicate that partisan politics is irrelevant to the representation process, the opposite is true. State opinion influences the ideological positions of state parties, and parties' responsiveness to state opinion helps to determine their electoral success. Moreover, parties move toward the center once in office. For these reasons, state electoral politics is largely responsible for the correlation between state opinion and state policy.

Despite almost two decades of behavioral research, our models relating the key variables in judicial decision making are incomplete and inadequate. In particular, the impact of two widely used variables, judges' attitudes and role orientations, is poorly understood. While there appears to be a consensus that attitudes and role orientations are important predictors of behavior, no research has been successful in developing a comprehensive model capable of predicting judges' behaviors. This article's objective is the development of a single model incorporating attitudes, role orientations, and decision-making behavior. While attitudes and role orientations taken singly explain insignificant amounts of the variation in behavior, an interactive model of attitudes and role orientations is shown to be extremely useful for understanding behavior. Although this research focuses on the sentencing decisions of Iowa trial court judges, the proposed model is potentially applicable to all instances of decision making.

Since the writings of the judicial realists in the 1920's and 1930's almost all social scientists have accepted the concept that the judicial process is basically political. One line of reasoning points out that judges inevitably are policy makers because of their functions, such as constitutional and statutory interpretation. Politics is conflict among interests or values or demands, and any activity, including judicial decisions, which advantages one interest as opposed to others is political activity. Since judges decide cases involving interest conflicts, theirs is “interest activity not as a matter of choice but of function.” Robert H. Jackson made the point cogently when he argued that the “Supreme Court has, from the very nature of its functions, been deep in power politics …” Of the power of judicial review, he said, “The ultimate function of the Supreme Court is nothing less than the arbitration between fundamental and ever-present rival forces or trends in our organized society.” Although these remarks were addressed to the Supreme Court, they are true to a substantial degree of judicial power throughout the American system. Many of the conflicts adjudicated by the judiciary advance some interests or values and disadvantage others.At the same time that the judicial function has been recognized as political in its consequences, the process of judicial decision making has come to be viewed as involving wide opportunities for discretion by the judges. The mechanical theory of judging, enunciated most clearly by the late Justice Owen Roberts, is now generally in disrepute, and realists prefer to cite Charles Evans Hughes who stated “We are under the Constitution, but the Constitution is what the judges say it is.”

Several scholars within the public law field of political science have compiled data on differences in the backgrounds of American judges, but without attempting to correlate these characteristics with differences in the decisions of the judges. Other scholars have compiled data on the different decisional tendencies of American judges, but again without correlating these tendencies with differences in the backgrounds of the judiciary.The first purpose of this paper is to explore the empirical relationships between one background characteristic and fifteen areas of judicial decision-making. Political party affiliation was chosen as the one background characteristic because it is of particular interest to political scientists, and is an especially useful indicator for predicting how judges on bipartisan appellate courts will divide when they do not agree. The second purpose is to explore empirically the effectiveness of three judicial reforms (judicial appointment, non-partisan ballot, and long term of office) which are frequently advocated as means of decreasing partisan influences in judicial decisions.

The rôle played by public opinion in a democracy, particularly as it affects the legislative process, has long been a subject for speculation by political scientists. The advent of controlled quota sampling permits of the study of this important relationship in measurable terms. The object of the present discussion is to trace the interaction of public opinion and the executive and legislative branches of government as they have dealt with a single public question—reorganization of the Supreme Court, as presented to Congress for consideration by President Roosevelt on February 5, 1937. Enlargement of the Supreme Court from nine to fifteen members was the most controversial feature of the general reorganization of the federal judiciary proposed by the President, aimed at speeding up the process of clearing cases through the federal court system, and making the system more “representative” of the wishes of the people.The debate on enlargement of the Supreme Court provides a useful and interesting case study for several reasons. The case as a public issue has a definite beginning and end, ranging from the proposal of the judiciary reform bill by the President on February 5 to the death of Senator Joseph T. Robinson on July 14, 1937. As it was debated by public and legislators, the issue was a relatively clear-cut one, uncomplicated by side issues or utterly foreign events that might have influenced the course of either legislators or the public. Finally, and of decided importance, the American Institute of Public Opinion made weekly measurements of opinion toward the proposal during the entire period that reorganization of the Court was a public question. This permits the correlation of reliable opinion samplings with events in the debate and the observation of their relationship.

One does not speak of the rights of American trade unions glibly or in off-hand fashion. Unlike the English policy of defining the rights of labor by legislative enactment, our legislatures, both federal and state, have been particularly slow to make such definition. Such predicability as the labor law has thus far assumed has been largely the work of the courts. Here, in other words, we discover the rights of trade unions in the opinions of the courts; in England, we have been accustomed to look to the statute-book rather than to judicial opinions. Comparatively, English labor law has at least enjoyed the merit of being reasonably predicable. The acts of 1859, 1871, 1875, 1906, and 1913 were all designed either to make the existing law more definite or to overturn a judicial interpretation of the law adverse to labor. Thus, by the year 1927 the law was rather definite. The statutes contained statements of what labor could or could not do. A reading of the recent Trade Disputes and Trade Unions Act of July 29, 1927, raises the question whether this legislation marks a change in the English policy of fixing the rights of labor by legislative definition.The immediate occasion for the recent act was the general strike of May, 1926. Introduced and rushed through Parliament by the present Conservative government, this measure failed to receive the preliminary study and consideration that preceded the introduction of the acts of 1871 and 1906.

Contrary to some belief, there are some, and possibly many, conditions under which survey research techniques can be put to use in the study of judicial decision-making. The present note reports on the successful use of such a technique in the collection and analysis of data drawn directly from the judicial bench of the State of Hawaii. In this case the plan to utilize survey techniques arose out of consideration of a problem that has plagued students of judicial decision-making from the beginning, i.e., the problem of getting direct information about those judicial attitudes and orientations which might reasonably be expected to function as determinants of judicial decisions.In an earlier study of the impact of judicial role orientation upon judicial decision-making, I tried to handle the problem of taking independent measures of actual judicial attitudes and orientations which could then be related to judicial decisions. My approach at the time was to use accessible and measurable law students as stand-ins for actual judges. In contrast to this approach most of the political “judicial behavioralists,” while collecting data on actual functioning judges, do not attempt to solve the problem in any way. For these scholars continue to reason tautologically from information contained mainly in judicial votes and secondarily in judicial opinions, leaving us with such essential conclusions, in effect, as: “conservative” decisions are made by “conservative” judges, etc. Who is to say which is the worst procedure: the “judicial behavioralists,” which collects irrelevant data from relevant persons; or my own, which collects relevant data from irrelevant persons?Despite advice to the contrary, I decided to try my hand at direct surveys of a judiciary, i.e., the one closest at hand.

In a recent essay, Richard Snyder has stated that: “[A] paradox in political science is the lack … of any systematic attention to the analysis of the decision-making behavior of judges.” It is not my purpose to argue either for or against the particular frame of reference for decision-making analysis advocated by Snyder. I do believe, however, that he has correctly identified the approach—the analysis of judicial decision-making as an aspect of political behavior—which is most likely to command the focus of interest and activity of the coming generation of political scientists whose substantive concern is with the study of political problems in the area of our discipline traditionally known as public law.The concept “political behavior” remains sufficiently novel within the public law fraternity to impose something of an obligation to make clear what I have in mind in using the term. I shall borrow from David B. Truman who, in a Brookings Lecture not long ago, defined the “behavioral sciences” as “those bodies of knowledge, in whatever academic department they may be found, that provide or aspire to provide ‘verified principles’ of human behavior through the use of methods of inquiry similar to those of the natural sciences.”

One of the most striking features of our constitutional law is the persistent purpose to protect the liberties of the people from arbitrary power by vesting the functions of sovereignty in three coördinate departments of government. This division is accomplished by express provisions in some state constitutions and by necessary implication in all constitutions, federal and state. By judicial construction the legislature may not exercise judicial or administrative powers; the executive may not exercise legislative or judicial powers, and the judiciary is denied the exercise of legislative or administrative powers. This fundamental principle of constitutional law is established by judicial decisions, both state and federal, of long standing and uninterrupted unanimity.A commission is an administrative body; may it exercise judicial functions, and if so to what extent? The question involves, first, a definition of judicial functions; second, a statement of the exceptions to the rule that judicial powers may not be exercised by the administrative department; and, third, an appreciation of the relation of judicial determinations to the regulatory powers vested in commissions. We may then consider whether or not the present scope of judicial determinations by commissions, and the court review of such determinations, are satisfactory.

“We are under a Constitution,” said Charles Evans Hughes when he was governor of New York, “but the Constitution is what the judges say it is …” Several theories of jurisprudence have arisen which attempt to take into account this personal element in the judicial interpretation and making of law. The so-called “realistic” school has argued that law is simply the behavior of the judge, that law is secreted by judges as pearls are secreted by oysters. A less extreme position was taken by the late Justice Holmes, who said: “What I mean by law is nothing more or less than the prediction of what a court will do.” While these views go rather far in eliminating any idea of law as a “normative, conceptual system of rules,” no one doubts that many judicial determinations are made on some basis other than the application of settled rules to the facts, or that justices of the United States Supreme Court, in deciding controversial cases involving important issues of public policy, are influenced by biases and philosophies of government, by “inarticulate major premises,” which to a large degree predetermine the position they will take on a given question. Private attitudes, in other words, become public law.

Various attempts have been made in recent years to analyze judicial decisions in selected areas of law as functions of controlling facts. At least two of these attempts have relied on systems of simultaneous equations. In both endeavors the assumption was made that the combination of facts on which the decisions depend is linear. In the absence of any clear indication of a nonlinear combination, as well as in view of the significant results that were obtained on the basis of a linear model, the initial approach was justified. The use of high speed digital computers has made it possible, however, to explore the existence of nonlinear relationships where the original assumption of linear relationships was made. The important feature in detecting nonlinear relationships is not primarily the greater accuracy of the results—the linear model has provided acceptable approximations—but the acquisition of new insights into how different facts combine in influencing judicial decisions.It is the purpose of this paper first to review the linear model, and then to show how it can be extended to a nonlinear model—in general terms as well as in the form of an actual application. Finally, limitations and implications of the nonlinear model will be indicated.

In addressing the court in due-process cases one should not commence with the usual salutation “May it please the Court.” Instead, one should say “My Lords.” Backed by and charged with the enforcement of the due-process clause of the fifth and fourteenth amendments, the Supreme Court of the United States is the American substitute for the British house of lords. It constitutes the real and only conservative second chamber of the federal government. It is a second conservative chamber for each of the state governments.The time has come when the political scientists of the country should recognize, in the decisions of the United States Supreme Court under the due-process clause, the functioning of a second chamber, organized to defeat the popular will as expressed in legislation when that will appears to endanger what the court may regard as a fundamental requirement of the social structure itself.Like all conservative second chambers, the Supreme Court and the due-process clause are in a hopeless dilemma. If the popular will were frustrated as often as the dissenting opinions of Mr. Justice McReynolds indicate that it should be, the second chamber function of the court would be assailed by the recall of judicial decisions. If the court bowed to the popular will as often as the dissenting opinions of Mr. Justice Holmes indicate that it should, the second chamber function of the court would cease to be exercised.

In No. 78 of The Federalist, Alexander Hamilton wrote: “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them…” Whatever acceptance this view of the judge as automaton and of the judicial process as a ministerial function may once have had, little trace remains of it today, after ten years of experience with the “reorganized” Supreme Court. The Roosevelt Court was not, of course, the first on which judicial decisions were influenced by the personal values of its justices. Throughout the history of the Court, the autobiographical element in its output has been as important as when Justice Holmes bluntly told his colleagues in 1905 that “this case is decided upon an economic theory which a large part of the country does not entertain.” But the prevailing theory was that judges did not make law, they merely found it.The constitutional revolution of 1935–37 changed all that. The public, as Max Lerner says, “began to see that judicial decisions are not babies brought by constitutional storks, but are born out of the travail of economic circumstance.” For two terms, the Constitution meant what Justice Roberts said it meant. After the consummation of the revolution, the forces which had been most ardent in picturing earlier conservative courts as demonstrating the workings of a government of law could only explain the strange phenomenon of a liberal court as the triumph of a government of men. Additional recent factors serving to underline the personal basis of judicial decisions have been the tossing of barbed phrases on the bench, Justice Jackson's ill-tempered public attack on one of his colleagues, and the mounting tide of dissenting opinions.

The experience of Ohio with the requirement of concurrence of an extraordinary majority of the Supreme Court to declare a statute invalid is an illuminating commentary on the desirability of such a restriction. Much has been spoken and written on both sides of the question. Those who have seen laws embodying worth-while reforms invalidated by the courts, many times by bare majority decisions, have campaigned for a curtailment of the judicial prerogative. Publicists have expatiated on the evils of the situation. Textbook writers have embodied the arguments in their discussions. Teachers, it is to be feared, have quite glibly enlarged upon the necessity of unseating our “judicial obligarchy.”The late President Theodore Roosevelt, addressing the Ohio constitutional convention in 1912, urged that body to propose an amendment providing for the recall of judicial decisions. He failed to convince the convention of the desirability of his remedy, but he succeeded in creating a feeling that something must be done; and an amendment to the judiciary article was adopted, reading as follows: “No law shall be held unconstitutional and void by the Supreme Court without the concurrence of at least all but one of the judges, except in the affirmance of a judgment of the court of appeals declaring the law unconstitutional and void.” Since the Supreme Court is composed of a chief justice and six associate justices, the restriction amounts to a requirement of the concurrence of six justices in decisions of this kind.

Bulk Sales Law-Constitutionality. Klein v. Maravelas. (New York. December 15, 1916. 114 N. E. 809.) The court of appeals of the state of New York has declared the bulk sales law constitutional, holding that its prohibitions do not impose arbitrary and purposeless restrictions upon liberty of contract. In so doing it reverses the decision of the same court in Wright v. Hart (1905) 182 N. Y. 330, 75 N. E. 404, which held a former similar statute unconstitutional. The court, in thus reversing itself, pointed to the fact that similar statutes have been upheld by the United States supreme court and by the courts of last resort of nineteen states, and that in but one state had such a statute been held invalid. The court says, "In such circumstances we can no longer say, whatever past views may have been, that the prohibitions of this statute are arbitrary and purposeless restrictions upon liberty of contract. . . . The needs of successive generations may make restrictions imperative today which were vain and capricious to the vision of times past. . . . Back of this legislation, which to a majority of the judges who decided Wright v. Hart seemed arbitrary and purposeless, there must have been a real need. We can see this now, even though it may have been obscure before. Our past decision ought not to stand in opposition to the uniform convictions of the entire judiciary of the land." For other recent decisions upholding the uniform bulk sales law see Gazette v. Wipf. (Wisconsin. December 5, 1916. 160 N. W. 170.); Marlow v. Ringer. (West Virginia. February 6, 1917. 91 S. E. 386.)