Search

The article discusses the majoritarian's impulse on the legislative and legal structure of a country. Topics discussed include macro-level measures for civil liberties and economic regulation, facial validity and reliability of legislative and legal landmarks and he Court's relationship with elected majorities.

Descriptive representation is an important issue within democratic institutions. Although constitutionally designed to be the least popularly accountable branch of government, issues of representation can be just as important for the nation's federal judiciary. In this paper, we examine the descriptive representation of jurists on the federal appellate courts. More specifically, we analyze the background characteristics of judges on the US Courts of Appeals from 1801-2012 and of justices on the US Supreme Court for its entire history commencing in 1789. In terms of background characteristics, we look to racial and gender diversity. However, we also look beyond these more traditional representative characteristics, as we also examine ethnic, religious, and professional backgrounds of federal judges. We find that the federal courts have been dominated by judges whose backgrounds reflect immigration patters in the country, as early on most judges were White males of northern European descent with Protestant affiliations. However, as immigration patterns changed to more southern European trends as well as from Latin America and Asia, eventually judges reflected these broader changes in society. As well, gender and racial diversity has increased in the past few generations. Moreover, the professional backgrounds of federal judges include many with prosecutorial or other government experience, whether appointed or elected. These findings show that judges are involved and experienced in politics prior to their ascent to the federal courts, which along with their background characteristics may influence their decision making on the bench. [ABSTRACT FROM AUTHOR]

At the core of the debate on how judges should be selected is the issue whether the judiciary should be accountable or independent. Among the various selection systems in the states, including partisan elections, non-partisan elections, gubernatorial and legislative appointment, and the so-called Missouri Plan, do any of these methods of selection provide for greater or lesser levels of accountability? It is important to answer this question with empirical evidence, so that policy makers can accurately choose the selection system that best addresses their goal of either accountability or independence. In this paper we seek to answer this question by analyzing the tenure length of state supreme court justices over a period of 25 years (1980-2005). We utilize Cox Proportional Hazard Models to test the duration of judicial tenures in the states and the likelihood justices are at risk of leaving the bench. By doing so we seek to examine which selection systems produce the most accountable justices. The results of our hazard models show that justices in partisan election states have the shortest tenures and are at the greatest risk of departing the bench, as this selection method is the most accountable of these intuitions. By contrast, the Missouri Plan (also called the merit system) is least accountable, even less so than appointive systems, as the retention elections employed by this selection system provide no legitimate threat to justices' tenure on the bench. Our findings thus demonstrate that accountability varies across the judicial selection systems in the states and does so in a predictable fashion. [ABSTRACT FROM AUTHOR]

President Reagan's nomination of Justice Sandra Day O'Connor's nomination as the first woman to serve on the U.S. Supreme Court was historic in many ways. As a justice who served for over 20 years, Justice O'Connor proved to be a critical voice on a number of legal issues, particularly as she became the median justice toward the end of her tenure. As the first woman on the Supreme Court, she also seemed to symbolize the beginning of new opportunities for women and others who had largely been left out of the political system, at least in terms of representation. In fact, some have asserted that her elevation to the Court may have led to greater numbers of women and other political minorities being selected to lower courts throughout the land. In this paper, we test that conventional wisdom. In particular, what influence - if any - did Justice O'Connor's nomination have on judicial diversity in the federal courts? As women and other political minorities continue to gain seats on the American judiciary, did her nomination represent a watershed for gender and racial diversity in the courts? Employing a dataset we compiled on judicial diversity in the federal Courts of Appeals and District Courts, we find that Justice O'Connor's appointment did indeed lead to more women in the federal judiciary. Interestingly, the influence of her nomination seems limited to women, but did not carry over to racial and ethnic minorities. Thus, we do find the influence of an "O'Connor Effect," though it is more nuanced and complex than simply asserting that her historic appointment reverberated throughout the judiciary. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

States as Laboratories of Experimentation: The Nature of Selection Systems in State CourtsAbstractIn this paper, we revisit our research (Hurwitz and Lanier 2001, 2003, 2005) which focused on judicial selection systems and levels of diversity in state and federal appellate courts over two cross-sections of time, 1985 and 1999. Here, we focus on the year 2005 by examining how selection systems have changed since our prior studies. While we had observed an increasing number of state courts employing the merit system of selection from 1985 to 1999, there was a trivial increase of such courts from 1999 to 2005, with use of other systems remaining stable. That is, the changing use of selection systems that was the prior rule was no longer the case, as a good deal of continuity defined the types of selection systems now utilized in the states. However, when we analyze levels of diversity in both state and federal courts, we observe an increasing number and percentage of judges who are political minorities. In this regard, change is the order of the day with respect to women and minorities on appellate benches in the United States. Finally, our descriptive analyses demonstrate that particular methods of judicial selection do not influence the rate at which political minorities attain the bench. In particular, the merit system of selection, once derided by some as disfavoring nontraditional judges by preferring a prior status quo, continues to have no systematic influence on diversity, thus confirming our earlier findings. While there are a myriad of rationales for state policy makers to choose one particular selection method over any other, our research substantiates that consideration of associated levels of diversity need not be included in this decisional calculus. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Much has been written about representation in public institutions. This scholarship includes discussion of the symbolic and substantive importance of diversity in government, the necessity for and problems associated with policies that enhance levels of diversity, actual levels of diversity in public institutions, among others. In recent years, a number of studies has focused on the representative nature of the judiciary in particular because of its perceived, if not actual, cloistered nature comparative to that of non-judicial branches. Following this line of research, we have published our research describing levels of diversity while providing reasons for changes in the relative amount of, and change, in diversity in the federal and state courts at the end of the twentieth-century (Hurwitz and Lanier 2001, 2003, 2005). In this paper, we seek to update those findings by focusing on contemporary levels of racial and gender diversity in the state supreme and intermediate appellate courts. Our goal here is to examine present levels of diversity in these state courts, to describe whether change and/or continuity in judicial diversity has occurred, as well as to offer an explanation as to why such transformations may have occurred in the early stages of the twenty-first century. One of the key findings of this study is that since 1999 there has been little change in the methods that states use to select their appellate judges. A second important finding of our study is that political minorities have continued to achieve relative gains in their proportions as well as absolute numbers of such judges severing on state appellate tribunals. As we previously reported, there seems to be no effect overall on the relative success of NWM judges seeking the appellate bench based on selection method. That is, such jurists joined tribunals in merit system states at relatively the same rate as in non-merit plan states. ..PAT.-Conference Proceeding [ABSTRACT FROM AUTHOR]

The article examines the extent to which the agenda of the U.S. Supreme Court inspires changes in the agenda of the Courts of Appeals and vice versa, in an attempt to ascertain the nature of these judicial agendas, including both the influences that drive these courts' agenda priorities and the effect that each court has with respect to the other. The article shows that factors such as dockets in the lower courts, actions of the political branches and external environments influence the Supreme Court's agenda priorities.

In the past decade numerous studies have explored whether an empirical link exists between public opinion and decision making on the Supreme Court. There are sound normative and theoretical reasons to believe that justices can be persuaded by popular preferences. Yet, this area of study remains a controversial one, since equally compelling rationales exist for the inability of the public to sway the Court. We employ methodological tools and approaches not widely accessible a decade ago to a greater availability and quantity of data. In particular, we use Granger causality, vector-autoregression, OLS, and error-correction models to revisit this line of research. We generally find that public opinion influenced the Supreme Court prior to the Reagan presidency; yet, once more conservative appointments were made which tipped the balance of the Court away from its prior ideological balance where the influence of public opinion is more likely to be seen, the Court was no longer responsive to the public?s preferences. Thus, the relationship between public opinion and the Supreme Court is complex, and as such it remains a fertile and controversial area of research. [ABSTRACT FROM AUTHOR]

The aggrandizement of the administrative state in terms of its size and power has enabled the federal judiciary to enter the political arena regarding control of the bureaucracy. Some scholars have argued that the manner in which courts responded to this development of modern administration is a function of the ideological foundation of the courts relative to the politics and decisions of the agencies. Yet, the Supreme Court?s seminal decision in Chevron mandates that courts must afford great deference to agency rule making, irrespective of the judges? ideology, thus providing for the possibility that this decision has acted as a jurisprudential regime by altering the manner in which subsequent administrative cases are evaluated. Which provides for greater influence on the Courts of Appeals, ideology or deference? Preliminary findings as reported herein suggest that Chevron did indeed shift decision making in the federal appeals courts and thus appears to have served as a jurisprudential regime in the area of administrative law. Notwithstanding, this increased tendency of courts to defer to agency action in the post-Chevron era coexists in tandem with the ideology of the courts, as it appears that both ideology and deference to administrative policy are critical to explaining this aspect of judicial behavior.The aggrandizement of the administrative state in terms of its size and power has enabled the federal judiciary to enter the political arena regarding control of the bureaucracy. Some scholars have argued that the manner in which courts responded to this development of modern administration is a function of the ideological foundation of the courts relative to the politics and decisions of the agencies. Yet, the Supreme Court?s seminal decision in Chevron mandates that courts must afford great deference to agency rule making, irrespective of the judges? ideology, thus providing for the possibility that this decision has acted as a jurisprudential regime by altering the manner in which subsequent administrative cases are evaluated. Which provides for greater influence on the Courts of Appeals, ideology or deference? Preliminary findings as reported herein suggest that Chevron did indeed shift decision making in the federal appeals courts and thus appears to have served as a jurisprudential regime in the area of administrative law. Notwithstanding, this increased tendency of courts to defer to agency action in the post-Chevron era coexists in tandem with the ideology of the courts, as it appears that both ideology and deference to administrative policy are critical to explaining this aspect of judicial behavior. [ABSTRACT FROM AUTHOR]

The article informs about the dissent which aroused due to the U.S. Supreme Court cases decisions and the orally argued cases. It informs about transformations related to opinion formation norms. A graph containing information about the decisions taken by the Supreme Court, dissent rates and orally argued cases from the year 1900 to 2004 is presented.

In this paper we examine a number of issue areas concerning decision-making in the US Courts of Appeals for recent years and compare these data with those from prior years, based on release of the extension of the Songer Database through 2003. ..PAT.-Conference Proceeding [ABSTRACT FROM AUTHOR]