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Scholarship finds that in states with judicial elections, public opinion affects judges’ decisions on hot‐button campaign issues such as the death penalty or marijuana legalization. Yet the literature leaves open the question of how public opinion affects judicial decisions on less salient issues, which not only dominate the dockets of state supreme courts but also encompass areas of major legal and policy significance. We consider one such issue that infrequently emerges in judicial campaigns, environmental law. Specifically, we collect an original dataset of over 5,000 judicial votes on nearly 1,000 cases heard in 40 state supreme courts from 1990–2014. We find that for the dataset as a whole, there is not a significant effect of public opinion on judicial decisions in any of the major judicial selection systems. However, in the few states in which environmental issues have been the subject of campaign attack ads, we find evidence of such a relationship during the years following the ads. These results contribute to a growing literature that suggests elections can reduce judicial independence from public opinion.

Supreme Court justices often vote along ideological lines. Is this due to a genuinely different interpretation of the law, or does it reflect justices' desire to resolve politically charged legal questions in accordance with their personal views? To learn more about the nature of decision-making in the Court, we differentiate between votes that were pivotal and those that were not. When a justice's choice decides the outcome of a case, her ideology plays an even greater role in determining her vote - both relative to her choices on other cases and relative to other justices voting on the same case. We develop and empirically assess a model of voting in which judges trade off expressive and instrumental concerns. The evidence we present suggests that justices vote strategically, at least in part, to affect precedent.

Normative concerns often lead designers of political institutions to insulate judges from direct accountability and oversight that creates pressure on their decision making. However, such insulation undermines performance-relevant incentives and can give rise to shirking by judges. To understand the consequences of such shirking for the judicial process, we take advantage of an annual sporting event that creates differential distractions across judges. Using a difference-in-differences design, we show that when a judge’s team is participating in the NCAA Mens’ Basketball Tournament, the judge decides cases more slowly during the time the Tournament takes place. We also show those opinions are cited more negatively by subsequent decisions. These findings suggest a lack of direct accountability for their work product that is often part of political independence has deleterious consequences for the material judicial product. The findings also have implications for possible institutional design solutions.

It is well known that the public often relies on cues or heuristics when forming opinions. At the same time, leading theories of opinion formation about the Supreme Court see such support as relatively fixed. This includes the extent to which the public views the Court as a legitimate institution, and thus one that should be granted high levels of judicial independence. Such theories would suggest that the public should not rely on source cues to inform their opinion about the level of independence the Court should hold. Using a series of survey experiments, we find that, conversely, partisan source cues significantly influence the public's support for judicial independence. These results have important implications for understanding the extent to which politicians can shape the public's overall support for judicial independence, as well as for assessing the degree to which the public views the Court as a "political" institution.

Most U.S. state supreme court justices face elections or reappointment by elected officials, and research suggests that judicial campaigns have come to resemble those for other offices. We develop predictions on how selection systems should affect judicial decisions and test these predictions on an extensive dataset of death penalty decisions by state courts of last resort. Specifically, the data include over 12,000 decisions on over 2000 capital punishment cases decided between 1980 and 2006 in systems with partisan, nonpartisan, or retention elections or with reappointment. As predicted, the findings suggest that judges face the greatest pressure to uphold capital sentences in systems with nonpartisan ballots. Also as predicted, judges respond similarly to public opinion in systems with partisan elections or reappointment. Finally, the results indicate that the plebiscitary influences on judicial behavior emerge only after interest groups began achieving success at targeting justices for their decisions.

Item response theory (IRT) models for roll-call voting data provide political scientists with parsimonious descriptions of political actors' relative preferences. However, models using only voting data tend to obscure variation in preferences across different issues due to identification and labeling problems that arise in multidimensional scaling models. Latent Dirichlet Allocation (LDA) models are an increasingly applied approach to using relative term frequencies to estimate the degree to which each text in a corpus discusses a set of issues. However, while models based on relative term frequencies are powerful for discovering which issues are being discussed in which texts, they have proven less useful for discovering variation in political positions within corpuses that cover a range of issues. We combine these two models into a new model for discovering preference variation within issues, using voting data augmented with texts describing each vote. We demonstrate our approach using data from the U.S. Supreme Court.

While unidimensional preference estimates for the U.S. Supreme Court exist in both constant and time-varying forms, estimating variation in preferences across areas of the law has been difficult because multidimensional scaling models perform poorly in the context of a nine-member court. We introduce a new approach to recovering estimates of judicial preferences that are localized to particular legal issues as well as periods of time. Using multiple indices of substantive similarity among cases, we apply a kernel-weighted optimal classification estimator to analyze how justices' preference vary across both areas of the law and time. We find that incorporating variation in substantive area significantly improves the predictive power of estimated preference orderings over a model that only allows for variation in preferences over time. We also find substantial variation in the identity of the median justice across areas of the law during most periods of the modern court, suggesting a need to reconsider empirical and theoretical research that hinges on the existence of a unitary and well-identified median justice.

Principal-agent relations are replete in politics; politicians are agents of electorates, bureaucrats are agents of executives, lower courts are agents of upper courts, and much more. Commonly, principals are modeled as the rule-making body and agents as the rule-implementing body. However, principals often delegate the authority to make the rules themselves to their agents. The relationship between the lower federal courts and the Supreme Court is one such example; a considerable portion of the law (rules) is made in the lower federal courts with the Supreme Court serving primarily as the overseer of those lower courts’ decisions. In this article, we develop and test a principal-agent model of law (rule) creation in a judicial hierarchy. The model yields new insights about the relationship among various features of the judicial hierarchy that run against many existing perceptions. For example, we find a non-monotonic relationship between the divergence in upper and lower court preferences over rules and the likelihood of review and reversal by the Supreme Court. The empirical evidence supports these derived relationships. Wider implications for the principal-agent literature are also discussed.

We develop a model of opinion writing in the judicial hierarchy. The model adopts a case-space approach to judicial decision making with informational asymmetries across levels of the hierarchy. In the model, a lower court writes an opinion with two features: a legal rule and a level of quality. An upper court must then decide whether to review the decision. The model yields new insights about the strategic incentives created by the judicial hierarchy, including relationships among judicial ideology and opinion quality, judicial quality and the content of an opinion’s rule, and the effect of the case facts on these relationships. The findings suggest that several common tests employed in the literature may not discriminate among competing sets of first principles.

Judges face retention elections in over a third of US state courts of last resort and numerous lower courts. According to conventional wisdom, these elections engender judicial independence and decrease democratic accountability. We argue that in the context of modern judicial campaigns, retention elections create pressure for judges to cater to public opinion on "hot-button" issues that are salient to voters. Moreover, this pressure can be as great as that in contestable elections. We test these arguments by comparing decisions across systems with retention, partisan, and nonpartisan contestable elections. Employing models that account for judge- and state-specific effects, we analyze new data regarding abortion cases decided by state supreme courts between 1980 and 2006. The results provide strong evidence for the arguments. (JEL D72, K40) The Author 2010. Published by Oxford University Press on behalf of Yale University. All rights reserved. For Permissions, please email: journals.permissions@oxfordjournals.org, Oxford University Press.

Predominant empirical theories of judicial review indicate that the Supreme Court should be more likely to strike down legislation passed by its partisan and ideological opponents and uphold against constitutional challenge legislation passed by its allies. This article introduces an original dataset composed of all cases in which the Court substantively reviewed the constitutionality of federal statutes from 1789 through 2006 in order to provide a substantial test of these expectations across the full range of American history and across the full range of judicial review. The evidence suggests that ideologically distant legislation is more likely to be facially invalidated by the Court, but is no more likely to be struck down as applied in particular cases. The Court is more likely to strike down statutes as applied when they are being implemented by ideologically distant administrations, however. Laws adopted under conditions of divided government are much more likely to be upheld than are others that come under review by the Court. Although older statutes are more vulnerable to as-applied invalidations, they are less vulnerable to facial challenges than are more recent statutes. Contrary to common expectations, controlling for ideological factors, relatively unimportant statutes are not more vulnerable to judicial invalidation than important statutes and the presence of government lawyers arguing the case does not help preserve statutes against challenge.

A significant limitation in the empirical analysis of judicial politics has been the difficulty of measuring judicial policy. Theories of bargaining and opinion writing make predictions about where an opinion will fall in policy space, but empirical tests of those theories have not benefited from direct measures of opinion location. This paper develops a scaling model to estimate opinion locations and justice ideal points along a common, continuous dimension using the citations between opinions as data. We assume that each opinion has a fixed location in this unidimensional doctrine space and that the probability of a citation that affirms rather than disputes the doctrine of the precedent decreases as the doctrinal distance between them increases. This proximity citation model is applied to original datasets of citations in search and seizure and freedom of religion opinions written by the Warren, Burger and Rehnquist Courts. We use the resulting estimates of opinion content to evaluate median and non-median voter theories of Supreme Court bargaining and opinion writing. We find striking empirical support for theoretical models that predict the majority opinion will fall at the ideal point of the median member of the majority coalition as opposed to the court's median or the opinion author's ideal point. Given the centrality of theories of judicial policymaking to various substantive problems in political science, the method of scaling opinions developed in this paper can facilitate a variety of future research.

A fundamental question in the study of American government concerns the extent to which our democracy is representative. Students have explored whether governmental decision-makers respond to the preferences of their constituents. Most studies have asked whether the content of laws that are enacted reflects public preferences. I argue that beyond policy responsiveness, representation takes place through position-taking by elected representatives. Position-taking is a form of public posturing that can convey information about constituent opinion to other decision-makers. I outline a simple formal logic for legislative position-taking. I then show that a correlation between public opinion and bill sponsorship, net of a legislator’s preferences, implies that less well-informed elites can learn about public opinion by observing position-taking. Original evidence on state-level opinion and bill sponsorship is used to demonstrate the effect of public opinion on position-taking. The evidence indicates that public opinion is given voice in governmental decision-making and that elites who want to learn about public opinion can do so by observing symbolic position-taking by members of the House.

A key source of institutional variation across judicial systems is the degree of control that the highest court has over its docket. However, despite this variation, the consequences of various institutional designs in judicial hierarchies remains relatively unexplored by the theoretical literature. In this paper, we develop a formal model of high court resource allocation. We analyze the model under two institutional designs. First, the Court must allocate at least some minimum effort to all cases; second, the Court has complete discretion over which cases to hear. We analyze the model to identify the optimal allocation of resources across cases as the institutional design varies. We then consider the conditions under which the various institutional rules increase or decrease the legal efficiency or performance, of the judicial system. Our analysis reveals the complex relationship among the institutional rules governing high court dockets, the design of the judicial hierarchy, and the performance of the legal system. The model informs substantively policy debates among judicial reformers and scholars concerned with institutional design as well as disciplinary debates about case selection and judicial decision-making.

Predominant empirical theories of judicial review indicate that the Supreme Court should be more likely to uphold against constitutional challenge legislation passed by its partisan and ideological allies. This paper introduces an original dataset composed of all cases in which the Court substantively reviewed the constituitonality of federal statutes from 1789 through 2006. The dataset offers a new perspective on how the Court has exercised the power of judicial review across American history. The dataset is also used to test common expectations about how the Court uses the power of judicial review. We find partial support for those expectations.