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I argue the Supreme Court learns to craft legal rules by relying on the Courts of Appeals as laboratories of law, observing their decisions and reviewing those that best inform legal development. I develop a model that shows how the Supreme Court leverages multiple Courts of Appeals decisions to identify which will be most informative to review, and what decision to make upon review. Because an unbiased judge only makes an extreme decision when there is an imbalance in the parties’ evidence, the Supreme Court is able to draw inferences from cases it chooses not to review. The results shed light on how hierarchy eases the inherent difficulty and uncertainty of crafting law and on how the Supreme Court learns to create doctrine.

Can Supreme Court rulings change Americans’ policy views? Prior experimental and observational studies come to conflicting conclusions because of methodological limitations. We argue that existing studies overlook the media’s critical role in communicating Court decisions and theorize that major decisions change Americans’ opinions most when the media offer one-sided coverage supportive of the Court majority. We fielded nationally representative surveys shortly before and after two major Supreme Court decisions on health care and immigration and connected our public opinion data with six major television networks’ coverage of each decision. We find that Court decisions can influence national opinion and increase support for policies the Court upholds as constitutional. These effects were largest among people who received one-sided information. To address selection concerns, we combined this observational study with an experiment and find that people who first heard about the Court decisions throug...

We propose a dynamic model of precedent in a judicial hierarchy which incorporates a “bottom-up” informational component. When a high court establishes precedents, it has uncertainty regarding how they will play out when applied to future legal disputes. Lower court implementation of these precedents can inform the high court about the contemporary policy implications—i.e., the ideological location—of the precedents. If lower court usage of a precedent is informative, the high court will consider the revealed location of the precedent when contemplating reducing the precedent’s authority and applicability to future cases. Using data on U.S. Supreme Court precedents and U.S. Courts of Appeals citations to these precedents, we estimate a model of the Court’s negative treatment of precedent. We find lower court usage of precedent can provide new, useful information on the policy content of a precedent, helping the Court shape law in a way consistent with its preferences.

Elected officials have difficulty controlling politically insulated institutions, leaving the appointment process as perhaps their most effective means of influence. Yet, history shows that actors on these institutions—especially the Supreme Court—often behave unpredictably. Our goal is to determine whether variation in two components of cognitive style, prior to a justice’s nomination to the Court, predicts ideological drift once on the Court. Using linguistic software created by cognitive psychologists, we examined over 1000 speeches, articles, and separate opinions written by Supreme Court justices before they were nominated to the Court. Our results show that justices whose prenomination words revealed cognitive inconsistency drift more than those with stable world views.

Scholars often assert that public support for judicial authority induces Congress to grant resources and discretion to the Supreme Court. However, the theory of competing public agency embraced by the Constitution suggests that public support for courts cannot, by itself, explain congressional support for judicial authority. Instead, the logic of the separation of powers system indicates that legislative support for the institutional capacity of courts will be a function of public confidence in the legislature as well as evaluations of the judiciary. We test this theory, finding that public confidence in both Congress and the Court significantly affect congressional support for the Supreme Court, controlling for the ideological distance between the Court and Congress as well as the Court’s workload. The results offer a more refined and complex view of the role of public sentiment in balancing institutional power in American politics.

Existing work on the U.S. separation of powers typically views the Supreme Court as the final arbiter of constitutional and statutory disputes. By contrast, much comparative work on institutional politics explicitly recognizes the role of executives in enforcing and implementing court decisions. Drawing on that work, this study relaxes the assumption that executives must comply with Supreme Court rulings, and instead allows the propensity for executive compliance to depend upon indirect enforcement by the public. We develop and analyze a simple spatial model of Supreme Court decision making in the presence of executive discretion over compliance with the Court's rulings, and demonstrate that such discretion can act to restrict substantially the Court's decision making. Relying upon data collected for the Warren and Burger courts, we find empirical evidence consistent with the argument that the Supreme Court's ability to constrain executive discretion depends critically upon the public being aware of and understanding the ramifications of the case at hand.

Political scientists have developed increasingly sophisticated understandings of the influences on Supreme Court decision making. Yet, much less attention has been paid to empirical measures of the Court���s ideological output. We develop a theory of the interactions between rational litigants, lower court judges, and Supreme Court justices. We argue that the most common measure of the Supreme Court���s ideological output���whether the Court���s decision is liberal or conservative���suffers from systematic bias. We trace this bias empirically and explain the undesirable consequences it has for empirical analyses of judicial behavior. Specifically, we show that, although the Court���s preferences are positively correlated with the ideological direction of the justices��� decision to reverse a lower court, the attitudes of the justices are negatively related���and significantly so���to the ideological direction of outcomes that affirm lower court decisions. We also offer a solution that allows scholars to work around this ������affirmance bias.������

We draw together concepts from political science, law, and economics to model discretionary actions by agents in a weak hierarchical system, wherein agents at a higher level cannot directly discipline those at a lower level. In particular, we model the decision by an appeals court judge to communicate information to justices on a supreme court (via a written dissent) that a case is worthy of reconsideration, and discretionary decisions by justices on that supreme court to choose whether to formally review the case. In our model, judges and justices receive utility both from the outcome of the case in question and from the breadth of application of the outcome to jurisdictions besides the original source of the case (that is, the precedential value of the case). Action is costly for judges and for justices: for the appeals court judge, producing the dissenting opinion involves effort and may even preclude being able to so promote other cases; for the justices on the supreme court, there are too many such cases to consider, so the decision to review a case implies foregone opportunities to review other cases, cases through which they could also influence the evolution of the law. One very plausible equilibrium in our model predicts that an appeals court judge will find it valuable to communicate information to like-minded supreme court justices. However, a more unexpected type of equilibrium can exist that can best be summarized as an equilibrium with "strange bedfellows:" a judge with a particular ideological orientation may choose to communicate and influence a justice (or justices) with different ideological views in order to persuade the justice(s) to vote to review the case in question. Furthermore, we show that by setting a high hurdle for discretionary review, the supreme court justices can capitalize on the desire of appeals court judges to influence law, thereby encouraging enhanced informational effort by the appeals court judges: judges act as screeners of the cases most likely to be of interest to justices.

Supreme Court decisions can be read on two levels: as prescriptive statements of what legally can or cannot be done and as discourses that define the Court's view of social problems. This article explores this latter role through a content analysis of Court decisions that directly address the struggle for women's equality in the workplace during the 1970s. As it formulated the legal rules applicable to gender discrimination, the Court also gave social and political meaning to the concept of equality. Examining this process of problem definition in the judicial arena provides a different perspective for viewing Supreme Court decisions.

While past research has demonstrated widespread compliance in the Courts of Appeals with Supreme Court precedent (e.g., Gruhl 1980; Songer 1987; Songer, Segal, and Cameron 1994; Songer and Sheehan 1990), compliance is not automatic and is surely political. We examine compliance with Supreme Court overrulings of precedent-cases in which we might expect the lowest levels of compliance with Supreme Court policy prescriptions. We argue that several variables are relevant to the compliance decision and that those variables fall into two broad categories: characteristics of the Supreme Court precedent and characteristics of the circuit applying the precedent. In our event history analysis, we find that both precedent and circuit characteristics determine whether, and how quickly, a circuit follows a Supreme Court decision that overrules existing precedent; that is, unanimity, complexity, and the age of the overruled precedent, as well as the likelihood of Supreme Court review, are related to the compliance deci...

The decision to overrule U.S. Supreme Court precedent, we argue, results from the justices' pursuit of their policy preferences within intra- and extra-Court constraints. Based on a duration analysis of cases decided from the 1946 through 1995 terms, we show that ideological incongruence between a precedent and a subsequent Court increases the chance of it being overruled. Two legal norms also exert substantive effects as the Court is less likely to overrule statutory precedents and more likely to overrule precedents that previously have been interpreted negatively by the Court. While certain precedent characteristics also influence this decision, the political environment exerts no such effect. Consequently, one of the principal implications of this research is that legal norms influence Supreme Court decision making.

The Supreme Court is entering a new era, discarding long���standing legal doctrines to reshape the relationship between the states and the federal government. Paralleling trends in the legislative and executive branches of government, the Court is constructing its own version of devolution. Through a reinterpretation of the Commerce Clause of the Constitution, which is the anchor for many of our civil rights and social welfare laws, the Court has severely curtailed the power of the federal government to enact progressive legislation. This article provides an overview of this new judicial doctrine and discusses its implications for social welfare policy.

The U.S. Supreme Court, in recent Free Exercise and Establishment cases, seems to ground its decisions in the theory of political liberalism. This article, however, argues that the American tradition of religious liberty and its judicial protection must be understood not only in the context of liberalism but also in light of the common law heritage of American constitutionalism. The author concludes by examining an 1813 New York case in which free exercise of religion was vindicated on common law as well as constitutional grounds in a way that did not subordinate religious practice to liberal theory.

The "constitutional principle of separation of powers" could be understood to mean any one of several different things. It could mean, as the formalists argue, that each branch has exclusive power to perform a single designated function, unless the Constitution expressly permits an exception. Or it could mean, as the functionalists believe, that courts should strive to maintain a diffusion of power among the branches. Conceivably, it could mean nothing -- the constitutional principle of separation of powers could just be a shorthand reference for the sum of all specific clauses that govern relations among the branches, but add nothing to what these clauses individually require. Each of these interpretations would have serious drawbacks. The exclusive functions construction would be too rigid, the diffusion of power understanding too flexible, and neither comports with the full range of Supreme Court decisions defining the structural Constitution. The conclusion that the principle adds nothing to the specific clauses would be more consistent with the pattern of outcomes reached by the Supreme Court, but would be an open invitation to create a Fourth Branch of government that would permit massive evasions of those clauses in the future. A better strategy would be to interpret the principle as incorporating a minimal requirement that there be only three branches, with every federal office accountable to one of the constitutional branches. Such an understanding would provide substantial continuity with the past: it would be consistent with the text of the Constitution and with Madison's explanation of the mechanism for preserving the constitutional structure, and would not contradict any of the Supreme Court's judgments in major separation-of-power cases. For the future, it would prevent Congress from circumventing the specific clauses of the Constitution that limit the power of the branches, and would preserve the dynamic tension among the branches that has worked well for over 200 years in maintaining "the liberty and security of the governed."

This article contemplates the role the U.S. Supreme Court has played in the maintenance of the American two-party system. Specifically, we ask whether the Court has worked to constrain minor parties or to facilitate their efforts to become meaningful political entities. Our examination of litigation involving political parties depicts a Court that has remained "neutral" toward minor and major parties; indeed, we found some evidence of a positive relationship between minor parties and Court decisions, but only after we controlled for three other variables: cycles of American politics, case issues, and Court eras. These and other findings lead us to a number of conclusions about the role the Court plays in the American political system.

The early 1940s marked a period in which the consensus norms of the Supreme Court experienced a radical and apparently permanent change. The consistent pattern of relatively high cohesion characteristic of the Court's earlier years gave way to surging rates of concurring and dissenting opinions. The present research is an examination of the factors possibly contributing to the justices' sharply increasing tendency to express their individual views rather than to defer to the opinion of the Court. Using both historical and quantitative methods, the authors evaluate the impact of the Court's discretionary jurisdiction, changing caseload, associate justice characteristics, and judicial leadership. The evidence presented points to the conclusion that in combination with other factors the leadership style introduced by Harlan Fiske Stone in 1941 had a dramatic effect on the consensus norms of the Court.

Previous impact research has primarily investigated controversial civil liberties decisions. The present study examines the response of the United States Courts of Appeals to changes in the labor and antitrust policies announced by the Supreme Court between 1950 and 1977. Significant impact was discovered. In each policy area, the decisional trends of the courts of appeals underwent a significant change after each of two policy shifts on the Supreme Court. Changes in the decisional trends of the courts of appeal were in the predicted direction even after controls were introduced for judges' party and holdover effects

Much has been said in the political science and law literature over whether or not Justice Hugo Black remained consistent in his voting behavior during his last several years on the Supreme Court. The debate focuses on Black's behavior during the 1960's and on whether his declining support, during that time, for civil liberties and civil rights is in fact only the apparent effect of the Court itself having become much more liberal. In this article Professor Atkins and Mr. Sloope test several hypotheses concerning Black and the Supreme Court from 1953 to 1971. They find that Black did show declining support not only for issues pertaining to civil liberties and civil rights, but also for those relating to economic liberalism.

This paper presents preliminary findings from a study designed to fill a gap in political scientists' knowledge about the extent to which the Supreme Court grants or denies plenary review when conflict with one or more of its precedents is claimed. The findings are that the presence of conflict promoted the granting of review between 1961 and 1976, including the Warren Court terms (1961-68), even in the face of controls for litigant status, civil liberty issues, and constitutional issues, but that it was a poorer predictor during the Burger Court terms (1969-76).

The Supreme Court has become an instrument for the application of an inadequate secular religion-Liberal idealism-to the social problems confronting our society. That idealism expresses an ontological theory of the nature of reality as atomistic and therefore as inevitably disorderly, purposeless, and irrational. Liberalism by its nature drives us relentlessly toward social disintegration. Liberal ontology contradicts the historical experience of civilized man, which has been one of expanding the area of order, purpose, and rationality.' It also contradicts our national experience as understood under liberalism's own empirical theory of knowledge. The meaning of the American adventure and the role of the Supreme Court-our present situation and our future-can be understood only in terms of the conflict within liberalism, between its irrational ontology and its rational epistemology, and between its atomistic ontology and our older tradition of order.

The Supreme Court is viewed herein as a barometer indicating the degree to which uncertainty is present in the attempt to resolve major social conflict through court decisions. Although certain aspects of uncertainty were disclosed, apparently the uncertainty was not the result of irresponsibility or caprice within the judicial system but rather of differences between the role of the Supreme Court and that of the lower courts of the land.

In a recent Gallup poll the question was asked: "Some people say that the Supreme Court decides many questions largely on the basis of politics. Do you agree or disagree with this?" Among those who had an opinion on this matter, 54 per cent agreed and 46 per cent disagreed. It is impossible, of course, to know what Mr. Gallup meant by the term "politics", nor how it was interpreted by the persons polled. If it referred to divisions in terms of party alignments, then it is easy to demonstrate that there is no "politics" on the present Court. During the 1945-46 term the Court was composed of six Democrats and two Republicans,' and on only two of the 77 decisions in which there was division of opinion among the justices during the term did the two Republicans line up against the six Democrats. But if politics means the political philosophies of the justices and their personal judgments as to the role of law and the Constitution in relation to economic and social development, then it is clear that politics does, and should, influence Supreme Court decisions. President Theodore Roosevelt put the case very well when he wrote to Senator Lodge in 1902, in connection with the appointment of Judge Holmes to the Supreme Court

T HIS PAPER REPORTS AN ATTEMPT to examine by quantitative methods the validity of certain hypotheses about the behavior of the Supreme Court, and of its individual members, in federal administrative-agency cases during the 1947-1956 terms. The presentation is divided into four parts: (1) a brief attempt to clarify the basic similarities and differences between those who engage in the quantitative analysis of appellate-court behavior and those who do not; (2) the conceptual framework with which I approach the study of the Supreme Court and some of the hypotheses which stem from that framework; (3) the methods employed in collecting and analyzing the data necessary for testing the hypotheses formulated; and (4) the evidence developed for the acceptance or rejection of each of these hypotheses.

THE LITERATURE on Tibet and the Tibetans has rarely described any non-kin phenomena such as systems of mutual aid. In fact, it is safe to say that these systems have never been described by "outsiders" because they are the primary concern of the non-noble, non-serf and non-ecclesiastic population that, in general, receives little notice. Since there is no documentary mention, the relative antiquity of these systems remains uncertain. Indirect allusions, however, point to their existence prior to effective British control or influence in Tibet. The accounts of many informants concerning the situation in Tibet antedate the early 1920s. In all cases the descriptions they gave presented too well-organized a picture to be of a system that had originated in the immediate past. The author's first impression that these systems presented a development on the Indian side of the border to give the so-called "Bhutia" population a voice in British India's political life soon had to be discarded. Having once encountered these phenomena, the subject was pursued throughout our stay in the Darjeeling District of West Bengal and in Sikkim. It soon became evident that acquaintance with the terms "Ganye" and "Kidu" worked almost as an "open sesame" with new and potential informants who all regarded the phenomena as peculiarly Tibetan. When further information came down from Lhasa it served to corroborate the evidence that these systems have their origin in Tibet. The different situations on the Indian side of the border produced certain modifications, but the basic concepts are to be found in Lhasa and other Tibetan centers.