Search

The principles of the American legal tradition are thought to place limits on the members of the U.S. Supreme Court. Fidelity to written law, support for the doctrine of stare decisis, and deference to elected majorities are among the standard elements of the judicial canon. It is clear, however, that the justices make decisions with an eye toward achieving their policy goals and that they vary considerably in the extent to which they support judicial norms in their resolution of cases. How do the justices form their ideas about what constitutes good judicial policy and how judges should achieve it?One plausible explanation, drawn from the field of evolutionary psychology, suggests that a process of socialization determines one's attitudes toward norms, rules, and authority (Buss 1997). This socialization takes place long before assuming adult roles, such as judging. Indeed, it occurs during childhood, governed by an individual's relative position among siblings. Birth order has long been a subject of intensive study, and in recent years researchers have given close attention to its linkage to a person's receptivity to change. Specifically, evolutionary psychologists posit that, early in life, individuals engage in adaptive behaviors that are conditioned by the presence of siblings and seek certain niches that maximize parental attention (Sulloway 1996). Older siblings-firstborns in particular-are thought to identify with and emulate their parents and are thereby rewarded for their conscientiousness and respect for authority. As a consequence of these behavioral adaptations, firstborns develop not only ideologically conservative preferences but also a tendency to reject intellectual innovation, owing to their strong inclination to support the status quo. Laterborns, by contrast, must be creative and adaptable as a means of distinguishing themselves from their older siblings. Because of their openness to novel ideas, laterborns acquire more liberal political preferences as well as a predisposition to take risks and to rebel against convention.Applying the birth order thesis to the U.S. Supreme Court, I argue that the justices' microenvironments during childhood should affect their approach to legal decisionmaking on the bench. First, birth order should explain the justices' ideological orientations; older siblings on the Court should have more conservative preferences; younger siblings, more liberal attitudes. Second, the impact of birth order should also be revealedinthejustices'roleorientations. Owing to their deference to authority, firstborn justices should support existing regimes, defer to popular decision makers, and exercise restraint. Laterborn justices, by contrast, should evince activism; being less tethered to the status quo, such justices should be more open to questioning the judgments of elected officials. Testing this theory, I find clear support for birth order effects. The evidence reveals that birth order is directly linked to the justices' preferences. Likewise, birth order helps to account for their decisions about how to realize their policy goals; although ideology governs how the justices view the constitutionality of challenged legislation, birth order conditions the justices' willingness to strike down the actions of popular decision makers.In the following sections, I sketch the psychological theory about the importance of birth order, and I derive hypotheses about its relevance to the justices' policy attitudes and their approaches to judging. I then subject those hypotheses to statistical test.Birth Order and the Niche-Seeking HypothesisAnalyses of judicial behavior and theories of psychology have increasingly important intersections (Klein and Mitchell 2010), and studies of the Supreme Court in particular have recently invoked psychological explanations to account for the choices the justices make (see, e.g., Baum and Devins 2010; Wrightsman 2006). Scholars have often assumed that the members of the Court pursue various goals without exploring why they pursue them; thus, attention to the psychological foundations of judging is especially valuable, because it enables researchers to uncover the forces that underlie judicial decisionmaking (Baum 2010: 9). …

The problem of plagiarism by political scientists has not received much attention. The incidence of plagiarism, however, may be greater than one would think. In this article, I offer a humorous look at what happened when a manuscript of mine was plagiarized. Based on my experience, I offer some suggestions on how scholars might detect and prevent plagiarism.

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.������

The issue of devotional activity in the public schools has long been a staple of the U.S. Supreme Court's agenda, but knowledge of the local implementation of school prayer policy remains limited to the Court's earliest decisions. To what extent are schools presently engaged in religious activities prohibited by the Court? This study addresses this question through a survey in which recent high school graduates provided data on the level and types of devotional practices in their schools. The results suggest that there continues to be resistance to the Supreme Court, especially in the South, in rural and less educated communities, and in areas with higher concentrations of conservative Christians.

A good deal of scholarly evidence suggests that the decisionmaking of the U.S. Supreme Court is affected by legal argument. At the same time, it seems clear that in a great many cases the justices have enduring, strongly held views. In such cases, they should be impervious to the effects of advocacy. When are the justices apt to be influenced by the Court's legal community, and when will lawyers be less relevant? The answer, we think, has to do with the salience of the issue before the Court. We suspect that in nonsalient cases the justices have less-intense preferences and therefore are open to the persuasion of lawyers. In salient cases, by contrast, the content of legal policy matters much more to the justices. As a result, they are less amenable to legal argument and adhere more strictly to their personal policy preferences. Our empirical tests support this orientation.

With competing assumptions and alternative empirical models, scholars have come to rather different conclusions about the impact of public preferences on the decisions of the U.S. Supreme Court. Some have found the justices to be attentive to mass opinion, while others have judged it to be irrelevant. Across this divide, however, one assumption is widely shared; that is, political scientists generally agree upon how best to measure the Court's outputs. In this analysis, we employ an alternative estimate of the justices’ liberalism, one which we think better reflects the underlying ideological tenor of their policies. With data from 1953 to 1996, we compare time-series models using different indicators of the Supreme Court's aggregate liberalism. Our results suggest that, in addition to being motivated by their own preferences, the justices are highly responsive to public mood, as well.

In pursuing their goals, members of the U.S. Supreme Court are affected by their institutional setting. How has that institutional environment changed over time and what have been the political consequences of those changes? Despite considerable analysis of the institutional dynamics of legislatures and executives, political scientists have been slow to bring time series techniques to the study of the Supreme Court, and as a result much less is known about its evolutionary path. Measuring a variety of organizational characteristics, I construct an index of the institutionalization of the Supreme Court from 1790 to 1996. This indicator suggests that the integration of the Court into the system of federal policy making has better enabled the justices to satisfy their objectives. To demonstrate this empirically, I test a series of error correction models of judicial influence, each of which confirms that the nature of the Supreme Court's character has had considerable implications for the scope of the justices' legal and political impact. These results underscore the need for judicial scholars to examine the Court's policy making in longitudinal perspective.

In the process of agenda setting, the U.S. Supreme Court is limited to selecting from among only those cases brought before it. Despite this limitation, the justices possess considerable discretion and can reshape the issues in a case as a means of advancing their policy preferences. With data drawn from the Court's opinions, we find that, over the past twenty-five years, the justices have evinced a frequent willingness to expand the issues on their plenary docket and resolve questions not formally presented by the parties. We conclude that, notwithstanding informal norms that disapprove of this practice, issue fluidity is an important component in a continuous program of agenda building.

In making decisions on the merits, the members of the U.S. Supreme Court are often willing to provide authoritative answers to questions that have not been asked and to disregard issues that the parties have presented. What accounts for these forms of issue fluidity? Analyzing data from the 1988 term of the Court, we find that issue transformation is quite common, occurring in roughly half of the cases on the plenary agenda. We propose models of both issue discovery and issue suppression that, while successful in explaining how the justices select issues, suggest that these two forms of fluidity result from largely different influences.

How important are lawyers in the decision making of the U.S. Supreme Court? Although legal expertise has long been assumed to benefit certain litigants, the frequency with which lawyers appear before the Court has not been directly measured. In this article, I argue that, quite apart from the status of different litigants, lawyers can be viewed as repeat players who affect judicial outcomes. Using data from the U.S. Supreme Court Judicial Data Base with data from the United States Reports, I propose and test a theory in which the informational needs of the Court are better met by more credible litigators. Thus, for example, a more experienced lawyer significantly raises the probability of a party's success. The findings testify to the efficacy of experienced counsel, irrespective of the parties they represent.

Each year thousands of cases and litigants come to the Supreme Court. How can the Court find the most important cases to decide? The law of obscenity illustrates particularly well the Court's problem as it constructs its plenary agenda. Using data drawn from petitions for certiorari and jurisdictional statements filed with the Supreme Court from 1955 to 1987, we formulate and test a model of case selection in which professional obscenity lawyers and organized interests figure as critical elements in the process of agenda building. We also encounter strong evidence of the Court's differential treatment of several different litigants. Moreover, the calculus of selection changed markedly over time, as the Court itself changed; the Burger Court and Warren Court weighed several of the criteria quite differently.

One of the most significant changes in American law was the application of the Bill of Rights to the states. Some members of the U.S. Supreme Court enthusiastically supported the doctrine of incorporation, while others actively opposed it. Why? Evolutionary psychology posits that birth order can explain support for radical change; older siblings identify with authority and resist changes in the rules, while laterborns defy authority and are willing to alter the status quo. Applying the birth order hypothesis to the Court, the author finds that the incorporation revolution was led by laterborns, even after taking account of justices’ political preferences.

This article considers several issues that are related to the judicial process. It aims to shed some light on the policy capacities that the courts possess, as well as the impact of their decisions. The chapter focuses on the conditions that must be met in order for the courts to make effective policy. It describes how several of the basic features of the judicial process actually undermine the realization of those conditions. The discussion draws on several different strands of research that underscore different problems that are common to judges serving as policy-makers.

The degree to which the Supreme Court has been willing to support the libertarian claims of obscenity litigation has varied substantially since the High Tribunal first addressed the issue. By the admission of the justices themselves, the law of obscenity has proven to be problematic, at best. In this analysis, a model is developed that accounts for the voting behavior of the justices in obscenity cases. The results suggest that the High Court is especially sensitive to the states' aim of eradicating obscene materials. Although the increased conservatism of the bench has made the justices less prone to vote against the government, there is evidence of support for the liberal position, particularly when the argument is made by some organized interest. The justices, although not necessarily protective of those against whom the government acts, recognize the need to balance the necessity of serving legitimate governmental interests against the potential threat to free expression.

The solicitor general is widely believed to occupy a special status among the parties appearing in the U.S. Supreme Court. A broad array of theo retical advantages are thought to contribute to the federal government's influence, but scholars have no direct evidence of their impact. More importantly, virtually all existing research has failed to measure directly the influence of those advantages across other parties, as well. Estimating a series of probit models of executive success in the Court under both Democratic and Republican administrations, I test the impact of one such advantage, litigation experience, measured for all parties across all cases. The results suggest that, notwithstanding the conventional wisdom, there is nothing distinctive about the solicitor general's influence. Thus, exist ing explanations regarding the solicitor general's institutional prestige appear to overstate the importance of the executive's role in the Court.

In the process of case selection in the U.S. Supreme Court, lawyers try to secure space on the justices' plenary agenda; through briefs amicus curiae, interest groups try to advance their policy views. Thus, both seek access to the Court. What brings lawyers and organized interests together? In this article, I develop a model which examines when and why lawyers who represent petitioners build coalitions with groups. Using survey data from the 1986-87 Term of the Court, I show that lawyers-particularly lawyers with expertise in the agenda setting process-actively recruit the support of interests as amici curiae. Solicitation of amici most often occurs when lawyers and interest groups share similar goals, specifically, the desire for the justices to speak authoritatively on an issue of national importance. Con sistent with the literature on organized interests, the results serve to explain why so few lawyers seek the support of amici curiae, despite their impact on the justices' decision making.

The past several decades have witnessed tremendous growth in the number of professional representatives in the Washington community. Despite a wealth of research that testifies to the importance of these experts in the legislative and executive branches, we know comparatively little regarding sophisticated representation in the judicial context. Is there an identifiable group of specialized representatives in the U.S. Supreme Court? Under the rubric of network theory, I examine the bar of the Court and the patterns of association within it. With survey data from lawyers who participated in Supreme Court litigation during the 1986 term, I develop a predictive model that suggests that the lawyers in the Court are a discrete collection of representatives, strongly anchored in Washington, DC. While many are connected through legal education, geography, and generational affinity, the core of that group-former law clerks to the justices, alumni of the Solicitor General's Office, and the lawyers of the leading law firms in Washington-are the prominent experts within that network.