Armaly, Miles T., & Lane, Elizabeth. A. (2022). Politicized Battles: How Vacancies and Partisanship Influence Support for the Supreme Court. American Politics Research, 1532673X211064299.
Lane, Elizabeth. A. (2022). A Separation-of-Powers Approach to the Supreme Court’s Shrinking Caseload. Journal of Law and Courts, 10(1), 000-000.
Lane, Elizabeth A. “Does Law Constrain or Policy Prevail? The Effect of Litigant Case Strength on U.S. Supreme Court Decision Making.”
2019 Best Graduate Student Paper, Law and Courts Section of the American Political Science Association and 2019 Best Graduate Student Paper, Michigan Political Science Association
What happens when law and ideology come in conflict in a case? Research has revealed at the agenda stage, there are two types of decisions Supreme Court justices make. The first occurs when law supports their policy preferences and encourages them to vote sincerely. The second is the focus of this essay. It arises when justices? ideological preferences and law are at odds. Using novel data, I develop a measure of litigant legal argument quality to evaluate this relationship at the merits stage. I argue that this relationship is conditional on certain justice and case-level factors. To test this I classify whether justices? votes on the merits are policy consistent or inconsistent and examine deviations from policy in the votes justices cast. I find that all justices are constrained by law, but moderate justices are constrained most often, whereas justices at the ideological poles still vote their preferences a majority of the time.
Lane, Elizabeth A. and Jessica A. Schoenherr. “Hidden Successes: Briefs, Oral Arguments, and Gender Roles at the U.S. Supreme Court.”
At the United States Supreme Court, the attorneys who oversee the creation and presentation of parties’ legal arguments are overwhelmingly male. One dominant explanation for this gender gap suggests female attorneys are less likely to win. Using a novel dataset that identifies the counsel of record that supervised the creation of the brief and the oral advocate who presented the argument to the justices, our results suggest women succeed at the Supreme Court when they are placed in the right positions. We find the justices are significantly more likely to side with a party represented by a fe- male counsel of record than they are to side with party that hired a man for the same position. But we also see that parties can do worse if they ask a woman to appear as oral advocate, though having an all-female litigation leadership team is still better than having an all-male one.
Lane, Elizabeth A. and Jessica A. Schoenherr. “A Winning Strategy: How Attorneys Use Vanity Citations to Sway Justices.”
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.
Scott, Jamil S., Elizabeth A. Lane, and Jessica A. Schoenherr. “You Better Shop Around: Litigant Characteristics and Support for Supreme Court Decisions.”
Since the Warren Court showed a willingness to overturn the legal status quo and arm a group’s constitutional rights, interest groups have appealed to the Supreme Court to advance their causes. Such rights-arming decisions can put the Court at odds with popular sentiment, however, and interest groups do everything they can to convince the public, and its popularly-elected officials, that these decisions are worth implementing. One way these groups do this this is by identifying counter-stereotypical litigants who challenge the status quo while also sharing an identity with, and thus appealing to, groups that are less likely to recognize they benefit from such a decision. Using an experimental study in which 1,087 respondents read about challenges to affirmative action programs and gun laws brought by litigants of varying genders and races, our results show that counter-stereotypical litigants do not increase support for a Supreme Court decision and can, in certain circumstances, decrease it.
Lane, Elizabeth A. and Jessica A. Schoenherr. “Research Note: Identifying Racial and Ethnic Representation in the Supreme Court Bar.”
While the public views diverse institutions as more legitimate and institutions produce more representative outcomes as they diversify, the Supreme Court bar remains a mostly male and mostly White institution. Research shows the justices notice female advocates and respond to them in a number of ways that make it harder for female advocates to do their jobs well. This behavior makes it harder for women to join the bar and for the Court to reap the benefits of diversity. Do the justices similarly modify their behavior when they see a Black, Latinx, or Asian American attorney at the lectern? To answer this question, we need to identify the racial and ethnic composition of the Supreme Court bar. Using a combination of expert coding and crowdsourcing, we attempt to identify the racial and ethnic backgrounds of the 207 attorneys who appeared at Supreme Court oral argument between the 2015 and 2018 terms. Our results suggest that while expert coding is the best method of identifying attorneys’ racial and ethnic identities, data availability is illusive, and studying these attorneys’ impacts on the Supreme Court will remain difficult as a result.
Lane, Elizabeth A., Jessica A. Schoenherr, and Jamil S. Scott. “Cases but no Controversies: Public Response to the Justices Unrobed.”
Controversies, ethical violations, and scandals are commonplace in modern American politics, and the reaction to them — by politicians and the public alike — dictate a civil servant’s fate. In some situations, members of the government will continue to serve, but in extreme circumstances, their political career can come to an early conclusion. The severity of the controversy certainly affects the outcome, but does the profile of the official matter too? In this paper, we examine if the mass public holds different types of civil servants to different standards when deciding how to respond to political controversy. More specifically, we use a survey experiment to examine if the gender of the individual and the government branch in which they serve influences attitudes. We hypothesize that women officials are less likely to escape political controversy unscathed than are their male counterparts. Furthermore, we contend that members of the judiciary are held to higher ethical standards and therefore are more severely punished following a controversy than members of the legislative or executive branches. Moreover, we take into account how partisanship might act as a filter for how political controversy is perceived in one’s own party versus the other.
Lane, Elizabeth A. and Kirsten Widner. “Excuse Me — Race and Intersectionality of Interruptions at the U.S. Supreme Court.”
Spirited back-and-forth between lawyers and justices is a time-honored tradition at the U.S. Supreme Court. Lawyers expect their presentations to be interrupted, but research suggests that interruptions and speaking time are not equally distributed. Women lawyers appearing before the Supreme Court are interrupted more often and allowed to speak for less time than their male colleagues. Similarly, lawyers and fellow justices are more likely to interrupt women justices. We argue that the role schemas that lead to biased patterns of interruptions and domination with respect to women are also likely to lead to increased interruptions and domination of attorneys and justices of color. We test this expectation using an original database of the race of members of the Supreme Court bar developed by Lane and Schoenherr (n.d.) and the transcripts of all oral arguments held from October Term (OT) 2009 – the first term in which the Court had two Justices of color – to OT 2018, the last full term that was not disrupted by the COVID-19 pandemic, when all attorneys’ identities were visibly salient due to their appearance in the Courtroom. Given that justices’ behavior at oral arguments, attorneys’ performance at oral arguments, and oral arguments generally have a significant impact on Supreme Court justices’ decision making, unequal treatment of gender and racial minority attorneys during this important 30 minute period has significant implications on policy created by the United States Supreme Court.