Judicial Workload: A Separation of Powers Approach
Why is the Supreme Court’s docket shrinking? This topic has gained national media attention, but has been largely ignored by researchers. Despite the wealth of knowledge on what types of cases are granted review, little is known about the factors that influence the size of the docket from term to term. I find evidence that separation of powers dynamics influence Supreme Court justices’ agenda-setting behavior. In particular, the more constrained the Supreme Court is by the other branches of government, the fewer cases it will decide to hear. This, along with other institutional changes like the Case Selections Act of 1988 and justice turnover, are largely to responsible for the general decrease in the Court’s caseload overtime.
The Electoral Purpose of Senatorial Grandstanding during Supreme Court Confirmation Hearings
with Jessica A. Schoenherr and Miles T. Armaly
U.S. Supreme Court confirmation hearings provide senators with an opportunity to engage a potential justice on a nationwide stage. Senators probe for information about the potential justice’s future behavior on the bench. Nominees bob and weave through the tangle of questions, oscillating between forthcoming and vague responses. Such behavior encourages popular narratives that characterize this intricate dance as a “vapid and hollow charade” or an “exercise in obfuscation.” We challenge this wisdom and argue that senators use these hearings to provide meaningful representation to their constituents while simultaneously supporting co-partisan efforts to contest or champion the nominee. We examine the exchanges in 185 senator-nominee pairings that span nearly 30 years of confirmation hearings. Our results show that senators from both parties increase their question-asking activity during divided government, when confirmation success is more dubious. High public support for the nominee in a senator’s state during divided government can attenuate this general effect, however, and senators from both parties moderate their behavior when their constituents like the nominee.
A Winning Strategy: Attorneys’ Use of Brief Citations to Appeal to Members of the Winning Coalition
with Jessica A. Schoenherr
Discussions about Supreme Court decision-making almost always devolve into conversations about attorney strategy toward the median justice. Such conversations suggest attorneys are strategic in how they approach the justices, carefully crafting their briefs and oral argument discussions to persuade at least five justices to their side. We seek to better understand how attorneys appearing before the Supreme Court appeal to the justices’ preferences and obtain their votes. Using citation data from a random sample of 75 search and seizure and Establishment Clause cases, we analyze the frequency with which attorneys cite sitting Supreme Court justices’ past decisions and the factors that influence their decision to do so. We then use that information to see if the attorneys’ strategic behavior effectively convinces the justices to side with them. We find that it does. Our results suggest that attorneys target ideologically-congruent justices as well as the median justice, and their decision to do so improves their likelihood of winning a justice’s vote.
Court Curbing and Subjective Public Perceptions of Supreme Court Politicalness
with Miles T. Armaly
Public perceptions of the U.S. Supreme Court, and whether such perceptions impact Court behavior, is one of the more important relationships in judicial politics. Previous research has shown that the Court retrains its use of judicial review when it believes the public is sending signals of dissatisfaction via a hostile Congress. We argue that (a) Congress may have difficulty detecting actual displeasure and (b) the Court is more likely to respond to subjective, as opposed to objective, assessments of its deviation from public will. Unfortunately, researchers often study these types of questions with limited data options, particularly over time. We first discuss an underused source of data and then, using state space modeling, address these limitations by producing a measure of “politicalness” – the mass public’s perception of how political the Court is – from 1986-2015. This produces a measure that gauges subjective public attitudes toward the Court. We highlight what produces dynamics in this series and provide evidence that it behaves differently than similar objective measures. Using politicalness, we find that the use of judicial review is not contingent on subjective public disapproval.