The Elevator Effect: How Collegiality Impacts Dissent

Social Science Research Network, 2022

While scholars frequently offer ideology as a primary explanation for judicial behavior, judges, and some scholars, emphasize the importance of collegiality on multimember courts. But there is disagreement over how to determine when collegiality is at work, and what type of multimember court is more likely to exhibit collegiality among its judges. Resolving these competing claims calls for a valid measure of collegiality. This Article develops novel measures of collegiality based on dissenting judges' expressions of collegiality towards judges in the majority. It uses judge-level and court-level databases to validate these measures by showing that the

Journal of Empirical Legal Studies, 2008

Even where idiosyncratic factors such as ideology play large and consistent roles in judges' decision-making, there are always cases where the patterns of judges' votes confound our expectations. In some ways, these are among the most interesting cases for scholars, raising important questions about judicial behavior and institutions. In the first part of this paper, we introduce a quantitative measure of deviations from expected voting patterns intended to allow scholars to systematically study unexpected votes and the questions they raise. In the second part, we illustrate the use of this new measure by developing a preliminary model to predict departures from strict ideological voting in the U.S. Supreme Court, in an effort to distinguish alternative explanations for these patterns. Although the conventional wisdom might suggest that disordered voting occurs because of cross-cutting issues, we find little evidence that case complexity is responsible for unexpected coalitions. This result suggests that some alternative explanation exists for such voting behavior; we offer several possibilities-including the influence of legal considerations-in our conclusions.

psci.unt.edu

We contribute to the literatures on political psychology, interest groups, and judicial decision making by examining whether ideology mediates the effect of amicus curiae briefs on decision making in the U.S. courts of appeals. We argue that amicus briefs provide judges with information that influences their voting behavior. Using a dataset specifically collected for this project, we find that amicus briefs influence the decision making of appeals court judges, contingent on a judge's ideology. Liberal amicus briefs increase the chances that moderately conservative and conservative judges will cast a liberal vote. Conservative amicus briefs enhance the probability that moderate judges and conservative judges will cast a conservative vote. We conclude that this form of interest group lobbying influences judicial decision making and that understanding the efficacy of this strategy requires an appreciation of how political actors process persuasive information.

Law & Policy, 2016

Are Supreme Court justices with experience in the executive branch more likely to defer to the President in separation-of-powers cases? Revisiting the potential effects of career background on judicial decision-making, I hypothesize that for Supreme Court cases involving executive power, institutional socialization effects from time served on the executive branch may increase future judicial deference.Using an original data set of executive power cases decided between 1942 and 2006, I model justice-votes to test this hypothesis. I uncover three noteworthy findings: (1) prior executive branch experience does correlate with stronger support for the president’s position; (2) contrary to prior assumptions, separation-of-powers cases do possess a strong ideological dimension; and (3) there is some evidence that socialization effects explain this correlation. These findings suggest that legal scholars should pay greater attention to judicial background when there are good theoretical reasons for doing so.

Virginia Law Review, 1999

Virginia Law Review, 2004

For many decades, the United States has been conducting an extraordinary natural experiment: Randomly assigned three-judge panels on courts of appeals produce extensive evidence of the effect of judicial ideology on judges' votes. If the political party of the appointing president is treated as a rough proxy for ideology, then it becomes possible to test three hypotheses: (a) a judge's votes, in ideologically contested areas, can be predicted by the party of the appointing president; (b) a judge's ideological tendency, in such areas, will be amplified if the panel has two other judges appointed by an appointing president of the same political party; and (c) a judge's ideological tendency, in such areas, will be dampened if the panel has no other judge appointed by an appointing president of the same political party. All three hypotheses are confirmed in many areas, including affirmative action, campaign finance, sex discrimination, sexual harassment, piercing the corporate veil, disability discrimination, race discrimination, and review of environmental regulations. An important implication is that panel composition has a strong effect on likely outcomes, thus creating extremely serious problems for the rule of law. Taken as a whole, the evidence suggests that judges frequently issue collegial concurrences, that is, concurrences produced by the unanimous views of the other judges on the panel, and that judges are subject to group polarization, by which groups of like-minded people go to extremes. Notably, all three hypotheses are rejected in the areas of federalism, criminal appeals, and takings of private property, because Republican and Democratic appointees vote essentially alike. In the areas of abortion and capital punishment, the first hypothesis is confirmed, but the second and third are rejected, because judges vote their convictions, and are not affected by the composition of the panel. Disaggregating the data by circuit allows courts of appeals to be ranked along an ideological spectrum; it also shows striking differences between Republican appointees and Democratic appointees on different circuits. Normative implications are briefly explored.

Law & Society Review, 2012

Are Supreme Court justices with prior experience in the executive branch more likely to defer to the president in separation of powers cases? While previous research has suggested that such background may signal judicial policy preferences but does not shape them, I argue here that institutional socialization may indeed increase future judicial deference to the president. Using an original data set of executive power cases decided between 1942 and 2007, I model justice-votes to test this hypothesis. I uncover three noteworthy findings: (1) a clear correlation between prior executive branch experience and support for the executive branch, (2) the degree of this support intensifies as executive branch tenure increases, a finding congruent with a socialization hypothesis, and (3) contrary to received wisdom, executive powers cases possess a clear ideological dimension, in line with the expectations of the attitudinal model. In 2005, on the well-respected legal blog Opinio Juris, law professor Julian Ku reflected on the likelihood that then Judge Roberts would be a strong supporter of executive power once on the Supreme Court. After noting that Roberts had clerked for former Chief Justice Rehnquist, also a supporter of a robust executive branch, Ku stated that "like Jackson, who served as Attorney-General for FDR, and Rehnquist, who served as an Assistant Attorney General for Nixon, Roberts' main government experience has been in the executive branch as associate White House Counsel and Deputy Solicitor General" (Ku 2005). The implication of this statement was clear: as a former member of the executive branch, Judge Roberts was expected to be more deferential to the president in cases involving executive power. The notion that background affects behavior might seem an obvious truth. When it comes to judicial decision-making, however, particularly for hard cases at the appellate court level, the study of The author wishes to thank Jeff Yates, Brett Curry, and the anonymous reviewers for their helpful comments and suggestions on previous versions of this article.

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.