Conclusive evidence of a relationship between background characteristics such as gender, race, or... more Conclusive evidence of a relationship between background characteristics such as gender, race, or religion and specific judicial decisions has been hard to come by. Studies that find a correlation between prosecutorial experience and increased support for conservative positions have been an exception to this pattern. The presumption that former prosecutors make more-conservative judges permeates media accounts of judicial nominees and may affect judicial selection processes. After examining forty years of criminal cases from the Supreme Court and the U.S. Courts of Appeals, I find no relationship between prosecutorial background and a propensity for favoring conservative outcomes. Judicial ideology remains the better predictor of future judicial behavior in criminal cases.
For the first time since 1968, the election of Barack Obama raises the possibility of a liberal m... more For the first time since 1968, the election of Barack Obama raises the possibility of a liberal majority on the Supreme Court. In this article, I assess whether such an Obama Court would lead to significant constitutional change. Drawing on research regarding both the internal dynamics of the Supreme Court and the effect of the Courts external environmental, I develop four benchmarks that historically correlate with more rapid and significant constitutional change. Taking each benchmark in turn, I argue that an Obama Court would lack the vision, the desire, and the power to fundamentally reshape the constitutional status quo. Instead, an Obama Court would likely be a mirror image of the later Rehnquist years, drifting to the left on the resolution of some constitutional problems, but in essence remaining a chastened institution mainly limited to incremental doctrinal change.
For the most part, punctuated equilibrium scholarship has ignored the legal policy change generat... more For the most part, punctuated equilibrium scholarship has ignored the legal policy change generated by the Supreme Court. In this study, I address this gap though an examination of the Court’s equal protection and gender cases from the 1970s. My case study here has two aims. First, I offer the concept of jurisprudential regimes as a useful device for framing and identifying legal policy punctuations. After identifying Reed v. Reed (1971) as the cutpoint of such a regime, I then use Reed and its progeny to illustrate the promise of culture in explaining stasis and change, specifically focusing on the concepts of cultural cognition and cultural surprise.
In the legislative and executive branches, policy scholars have used punctuated equilibrium (PE) ... more In the legislative and executive branches, policy scholars have used punctuated equilibrium (PE) theory to describe and explain patterns of change. However, there has been little examination of how PE might apply to courts and legal policy change. This paper addresses that gap by providing evidence that legal policy change — here conceptualized as changes in what precedents the Supreme Court most often cites — is governed by PE theory. After making a prima facie case for the applicability of PE theory to the Court, I leverage network rankings of Supreme Court decisions to create a proxy for legal policy change that improves on existing measures. Using both a stochastic process model and an analysis of the punctuations the measure uncovers, I find strong evidence of PE processes.
Judicial ideology as conceptualized in the attitudinal model (AM) developed by Jeffrey Segal and ... more Judicial ideology as conceptualized in the attitudinal model (AM) developed by Jeffrey Segal and Harold Spaeth remains the dominant explanation for US Supreme Court decisions. However, while there is consensus that judicial ideology is crucial in explaining Court behavior, the AM remains under-theorized, time-limited, and unresponsive to scholarly advances in the study of ideology. This paper argues that the cultural theory (CT) developed by Mary Douglas, Aaron Wildavsky, and others can help address these problems. CT promises to advance the study of judicial behavior by providing a theory of ideology, rather than only the application of ideological labels, and by providing a two dimensional account of ideological behavior that avoids the anomalies that arise from relying on the AM’s one dimensional, liberal-conservative conception. To illustrate problems with the AM and the plausibility of our proposed CT solution, we compare explanations provided by both approaches for Court interpretations of First, Fourth, and Fourteenth Amendment rights. In each constitutional area, the attitudinal orientations specified by CT—that is, egalitarian, hierarchical, and individualistic cultural biases valuing equality, order, and liberty, respectively—provide a richer and more valid account of judicial attitudes and legal change than liberalism and conservatism alone.
Baumgartner and Jones’ classic analysis of nuclear power in the 1970s highlighted the importance ... more Baumgartner and Jones’ classic analysis of nuclear power in the 1970s highlighted the importance of policy imagery in maintaining a policy subsystem. A sharp increase in negative policy images of nuclear power, they found, contributed to a process of conflict expansion, leading to subsystem dissolution. Yet we still know relatively little about systematic factors that might drive changes in how policy images are received. In this study, I examine how cultural shifts alter receptiveness to existing policy images, drawing on the Cultural Theory (CT) developed by Mary Douglas and Aaron Wildavsky. I posit that through their impact on perception and risk assessment, cultural commitments affect how policy images are received. Returning to the nuclear power policy subsystem anchored in the Atomic Energy Commission, I find that its policy images—well-suited for an earlier cultural milieu—created negative, rather than positive associations for egalitarians, who were increasing in number both in general and within the antinuclear movement around the time that nuclear policy images began to sour. The timing of this shift, coupled with a ruling out of other potential causes, supports an argument that conflict expansion may have cultural roots.
Judicial opinions often incorporate empirical claims to support their reasoning. However, for som... more Judicial opinions often incorporate empirical claims to support their reasoning. However, for some issues, individuals perceive risks and weigh factual claims in a manner that affirms their own cultural identities. Cultural cognition thus threatens public acceptance of judicial rulings, and, potentially, institutional legitimacy. One proposed strategy for lowering cultural resistance is aporetic reasoning—or explicitly acknowledging an issue’s complexity and uncertainty as well as the policymaker’s own doubt. I test this hypothesis through a survey experiment, examining reactions to a federal judge’s ruling on the immutability of sexual preferences. I create an “objection precondition” where, based on initial questioning, subjects are presented with a judicial ruling with which they will presumably disagree. I then randomly vary the vignette to test the effect of aporetic reasoning. I find that, at least for some subjects, aporetic reasoning meaningfully reduced disagreement with the judge’s decision.
For the most part, punctuated equilibrium scholarship has ignored the legal policy change generat... more For the most part, punctuated equilibrium scholarship has ignored the legal policy change generated by the Supreme Court. In this study, I address this gap though an examination of the Court’s equal protection and gender cases from the 1970s. My case study here has two aims. First, I offer the concept of jurisprudential regimes as a useful device for framing and identifying legal policy punctuations. After identifying Reed v. Reed (1971) as the cutpoint of such a regime, I then use Reed and its progeny to illustrate the promise of culture in explaining stasis and change, specifically focusing on the concepts of cultural cognition and cultural surprise.
Adherence to precedent may provide a legitimizing function for judges. Recent scholarship suppor... more Adherence to precedent may provide a legitimizing function for judges. Recent scholarship supports this contention, demonstrating that Supreme Court justices are more likely to cite well-grounded precedent when their opinions face greater scrutiny. In this paper, I continue this line of research by examining whether citation practice varies along individual-level characteristics such as judicial ideology, a propensity for activism, judicial background, and judicial roles. I find that most individual-level factors have little or no impact on how justices ground their opinions in prior precedent, with the exception of judicial activism, which has a moderate negative impact on the centrality of the precedent cited. Individual variation in citation practice thus appears mainly idiosyncratic. However, I do uncover a strong interaction effect between ideology and activism, in which activist conservative justices write opinions with considerably less precedential centrality than other justices. This finding supports the narrative that the conservative legal framework entered a sea-change during the Burger and Rehnquist Court years.
In the legislative and executive branches, policy scholars have used punctuated equilibrium (PE) ... more In the legislative and executive branches, policy scholars have used punctuated equilibrium (PE) theory to describe and explain patterns of change. However, there has been little examination of how PE might apply to courts and legal policy change. This paper addresses that gap by providing evidence that legal policy change—here conceptualized as changes in what precedents the Supreme Court most often cites—is governed by PE theory. After making a prima facie case for the applicability of PE theory to the Court, I leverage network rankings of Supreme Court decisions to create a proxy for legal policy change that improves on existing measures. Using both a stochastic process model and an analysis of the punctuations the measure uncovers, I find strong evidence of PE processes.
Are Supreme Court justices with experience in the executive branch more likely to defer to the Pr... more 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.
Conclusive evidence of a relationship between background characteristics such as gender, race, or... more Conclusive evidence of a relationship between background characteristics such as gender, race, or religion and specific judicial decisions has been hard to come by. Studies that find a correlation between prosecutorial experience and increased support for conservative positions have been an exception to this pattern. The presumption that former prosecutors make more-conservative judges permeates media accounts of judicial nominees and may affect judicial selection processes. After examining forty years of criminal cases from the Supreme Court and the U.S. Courts of Appeals, I find no relationship between prosecutorial background and a propensity for favoring conservative outcomes. Judicial ideology remains the better predictor of future judicial behavior in criminal cases.
For the first time since 1968, the election of Barack Obama raises the possibility of a liberal m... more For the first time since 1968, the election of Barack Obama raises the possibility of a liberal majority on the Supreme Court. In this article, I assess whether such an “Obama Court” would lead to significant constitutional change. Drawing on research regarding both the internal dynamics of the Supreme Court and the effect of the Court’s external environmental, I develop four benchmarks that historically correlate with more rapid and significant constitutional change. Taking each benchmark in turn, I argue that an Obama Court would lack the vision, the desire, and the power to fundamentally reshape the constitutional status quo. Instead, an Obama Court would likely be a mirror image of the later Rehnquist years, drifting to the left on the resolution of some constitutional problems, but in essence remaining a “chastened” institution mainly limited to incremental doctrinal change.
The Rehnquist Court took conservative positions more often than its immediate predecessors. Less ... more The Rehnquist Court took conservative positions more often than its immediate predecessors. Less clear, however, is the degree to which its decisions actually impacted the legal framework. Given studies that suggest that ideological heterogeneity within Supreme Court majority coalitions and systematic trends of “institutional thickening” hinder the creation of legally important decisions, I hypothesize that the decisions of the Rehnquist Court should be less legally important relative to prior courts, and should create more important liberal legal decisions than expected. Employing measures of legal importance developed through the network analysis of Supreme Court precedent, I find that Rehnquist Court decisions are less legally important than decisions from prior eras. Furthermore, I find that in the most salient legal subject areas, the Rehnquist Court's liberal and conservative decisions are of roughly equal importance. Given these findings, the Rehnquist Court's ideological impact on precedent is more modest than its critics charge.
Conclusive evidence of a relationship between background characteristics such as gender, race, or... more Conclusive evidence of a relationship between background characteristics such as gender, race, or religion and specific judicial decisions has been hard to come by. Studies that find a correlation between prosecutorial experience and increased support for conservative positions have been an exception to this pattern. The presumption that former prosecutors make more-conservative judges permeates media accounts of judicial nominees and may affect judicial selection processes. After examining forty years of criminal cases from the Supreme Court and the U.S. Courts of Appeals, I find no relationship between prosecutorial background and a propensity for favoring conservative outcomes. Judicial ideology remains the better predictor of future judicial behavior in criminal cases.
For the first time since 1968, the election of Barack Obama raises the possibility of a liberal m... more For the first time since 1968, the election of Barack Obama raises the possibility of a liberal majority on the Supreme Court. In this article, I assess whether such an Obama Court would lead to significant constitutional change. Drawing on research regarding both the internal dynamics of the Supreme Court and the effect of the Courts external environmental, I develop four benchmarks that historically correlate with more rapid and significant constitutional change. Taking each benchmark in turn, I argue that an Obama Court would lack the vision, the desire, and the power to fundamentally reshape the constitutional status quo. Instead, an Obama Court would likely be a mirror image of the later Rehnquist years, drifting to the left on the resolution of some constitutional problems, but in essence remaining a chastened institution mainly limited to incremental doctrinal change.
For the most part, punctuated equilibrium scholarship has ignored the legal policy change generat... more For the most part, punctuated equilibrium scholarship has ignored the legal policy change generated by the Supreme Court. In this study, I address this gap though an examination of the Court’s equal protection and gender cases from the 1970s. My case study here has two aims. First, I offer the concept of jurisprudential regimes as a useful device for framing and identifying legal policy punctuations. After identifying Reed v. Reed (1971) as the cutpoint of such a regime, I then use Reed and its progeny to illustrate the promise of culture in explaining stasis and change, specifically focusing on the concepts of cultural cognition and cultural surprise.
In the legislative and executive branches, policy scholars have used punctuated equilibrium (PE) ... more In the legislative and executive branches, policy scholars have used punctuated equilibrium (PE) theory to describe and explain patterns of change. However, there has been little examination of how PE might apply to courts and legal policy change. This paper addresses that gap by providing evidence that legal policy change — here conceptualized as changes in what precedents the Supreme Court most often cites — is governed by PE theory. After making a prima facie case for the applicability of PE theory to the Court, I leverage network rankings of Supreme Court decisions to create a proxy for legal policy change that improves on existing measures. Using both a stochastic process model and an analysis of the punctuations the measure uncovers, I find strong evidence of PE processes.
Judicial ideology as conceptualized in the attitudinal model (AM) developed by Jeffrey Segal and ... more Judicial ideology as conceptualized in the attitudinal model (AM) developed by Jeffrey Segal and Harold Spaeth remains the dominant explanation for US Supreme Court decisions. However, while there is consensus that judicial ideology is crucial in explaining Court behavior, the AM remains under-theorized, time-limited, and unresponsive to scholarly advances in the study of ideology. This paper argues that the cultural theory (CT) developed by Mary Douglas, Aaron Wildavsky, and others can help address these problems. CT promises to advance the study of judicial behavior by providing a theory of ideology, rather than only the application of ideological labels, and by providing a two dimensional account of ideological behavior that avoids the anomalies that arise from relying on the AM’s one dimensional, liberal-conservative conception. To illustrate problems with the AM and the plausibility of our proposed CT solution, we compare explanations provided by both approaches for Court interpretations of First, Fourth, and Fourteenth Amendment rights. In each constitutional area, the attitudinal orientations specified by CT—that is, egalitarian, hierarchical, and individualistic cultural biases valuing equality, order, and liberty, respectively—provide a richer and more valid account of judicial attitudes and legal change than liberalism and conservatism alone.
Baumgartner and Jones’ classic analysis of nuclear power in the 1970s highlighted the importance ... more Baumgartner and Jones’ classic analysis of nuclear power in the 1970s highlighted the importance of policy imagery in maintaining a policy subsystem. A sharp increase in negative policy images of nuclear power, they found, contributed to a process of conflict expansion, leading to subsystem dissolution. Yet we still know relatively little about systematic factors that might drive changes in how policy images are received. In this study, I examine how cultural shifts alter receptiveness to existing policy images, drawing on the Cultural Theory (CT) developed by Mary Douglas and Aaron Wildavsky. I posit that through their impact on perception and risk assessment, cultural commitments affect how policy images are received. Returning to the nuclear power policy subsystem anchored in the Atomic Energy Commission, I find that its policy images—well-suited for an earlier cultural milieu—created negative, rather than positive associations for egalitarians, who were increasing in number both in general and within the antinuclear movement around the time that nuclear policy images began to sour. The timing of this shift, coupled with a ruling out of other potential causes, supports an argument that conflict expansion may have cultural roots.
Judicial opinions often incorporate empirical claims to support their reasoning. However, for som... more Judicial opinions often incorporate empirical claims to support their reasoning. However, for some issues, individuals perceive risks and weigh factual claims in a manner that affirms their own cultural identities. Cultural cognition thus threatens public acceptance of judicial rulings, and, potentially, institutional legitimacy. One proposed strategy for lowering cultural resistance is aporetic reasoning—or explicitly acknowledging an issue’s complexity and uncertainty as well as the policymaker’s own doubt. I test this hypothesis through a survey experiment, examining reactions to a federal judge’s ruling on the immutability of sexual preferences. I create an “objection precondition” where, based on initial questioning, subjects are presented with a judicial ruling with which they will presumably disagree. I then randomly vary the vignette to test the effect of aporetic reasoning. I find that, at least for some subjects, aporetic reasoning meaningfully reduced disagreement with the judge’s decision.
For the most part, punctuated equilibrium scholarship has ignored the legal policy change generat... more For the most part, punctuated equilibrium scholarship has ignored the legal policy change generated by the Supreme Court. In this study, I address this gap though an examination of the Court’s equal protection and gender cases from the 1970s. My case study here has two aims. First, I offer the concept of jurisprudential regimes as a useful device for framing and identifying legal policy punctuations. After identifying Reed v. Reed (1971) as the cutpoint of such a regime, I then use Reed and its progeny to illustrate the promise of culture in explaining stasis and change, specifically focusing on the concepts of cultural cognition and cultural surprise.
Adherence to precedent may provide a legitimizing function for judges. Recent scholarship suppor... more Adherence to precedent may provide a legitimizing function for judges. Recent scholarship supports this contention, demonstrating that Supreme Court justices are more likely to cite well-grounded precedent when their opinions face greater scrutiny. In this paper, I continue this line of research by examining whether citation practice varies along individual-level characteristics such as judicial ideology, a propensity for activism, judicial background, and judicial roles. I find that most individual-level factors have little or no impact on how justices ground their opinions in prior precedent, with the exception of judicial activism, which has a moderate negative impact on the centrality of the precedent cited. Individual variation in citation practice thus appears mainly idiosyncratic. However, I do uncover a strong interaction effect between ideology and activism, in which activist conservative justices write opinions with considerably less precedential centrality than other justices. This finding supports the narrative that the conservative legal framework entered a sea-change during the Burger and Rehnquist Court years.
In the legislative and executive branches, policy scholars have used punctuated equilibrium (PE) ... more In the legislative and executive branches, policy scholars have used punctuated equilibrium (PE) theory to describe and explain patterns of change. However, there has been little examination of how PE might apply to courts and legal policy change. This paper addresses that gap by providing evidence that legal policy change—here conceptualized as changes in what precedents the Supreme Court most often cites—is governed by PE theory. After making a prima facie case for the applicability of PE theory to the Court, I leverage network rankings of Supreme Court decisions to create a proxy for legal policy change that improves on existing measures. Using both a stochastic process model and an analysis of the punctuations the measure uncovers, I find strong evidence of PE processes.
Are Supreme Court justices with experience in the executive branch more likely to defer to the Pr... more 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.
Conclusive evidence of a relationship between background characteristics such as gender, race, or... more Conclusive evidence of a relationship between background characteristics such as gender, race, or religion and specific judicial decisions has been hard to come by. Studies that find a correlation between prosecutorial experience and increased support for conservative positions have been an exception to this pattern. The presumption that former prosecutors make more-conservative judges permeates media accounts of judicial nominees and may affect judicial selection processes. After examining forty years of criminal cases from the Supreme Court and the U.S. Courts of Appeals, I find no relationship between prosecutorial background and a propensity for favoring conservative outcomes. Judicial ideology remains the better predictor of future judicial behavior in criminal cases.
For the first time since 1968, the election of Barack Obama raises the possibility of a liberal m... more For the first time since 1968, the election of Barack Obama raises the possibility of a liberal majority on the Supreme Court. In this article, I assess whether such an “Obama Court” would lead to significant constitutional change. Drawing on research regarding both the internal dynamics of the Supreme Court and the effect of the Court’s external environmental, I develop four benchmarks that historically correlate with more rapid and significant constitutional change. Taking each benchmark in turn, I argue that an Obama Court would lack the vision, the desire, and the power to fundamentally reshape the constitutional status quo. Instead, an Obama Court would likely be a mirror image of the later Rehnquist years, drifting to the left on the resolution of some constitutional problems, but in essence remaining a “chastened” institution mainly limited to incremental doctrinal change.
The Rehnquist Court took conservative positions more often than its immediate predecessors. Less ... more The Rehnquist Court took conservative positions more often than its immediate predecessors. Less clear, however, is the degree to which its decisions actually impacted the legal framework. Given studies that suggest that ideological heterogeneity within Supreme Court majority coalitions and systematic trends of “institutional thickening” hinder the creation of legally important decisions, I hypothesize that the decisions of the Rehnquist Court should be less legally important relative to prior courts, and should create more important liberal legal decisions than expected. Employing measures of legal importance developed through the network analysis of Supreme Court precedent, I find that Rehnquist Court decisions are less legally important than decisions from prior eras. Furthermore, I find that in the most salient legal subject areas, the Rehnquist Court's liberal and conservative decisions are of roughly equal importance. Given these findings, the Rehnquist Court's ideological impact on precedent is more modest than its critics charge.
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