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The most prominent of the few stated criteria by which the Supreme Court decides to hear a case is the existence of a conflict among the lower courts. However, a lower court split does not automatically lead the Supreme Court to review a case, and the justices have often allowed lower court splits - and thereby the application of different legal standards across the country - to stand for long periods of time. What explains the Court's tolerance of conflict, and its eventual decision to resolve it? We model the Supreme Court's decision to intervene in a conflict as an optimal stopping problem. The Court faces a strategic trade-off between allowing conflict to continue while it learns about the implications of the possible policy choices and intervening to end a costly conflict between the lower courts. Our model provides the first theoretical framework for understanding when and how the Court decides to resolve lower court conflict.

Despite the importance of Supreme Court opinions for the American polity, scholars have dedicated little systematic research to investigating the factors that contribute to the content of the justices’ opinions. In this article, we examine the ability of lower federal courts to shape the content of Supreme Court opinions. We argue that lower court opinions will influence the content of the Court’s opinions to the extent that the justices perceive that integrating language from lower court opinions will aid them in making efficacious law and policy. Utilizing plagiarism detection software to compare lower federal court opinions with the majority opinions of the Supreme Court during the 2002–2004 terms, we uncover evidence that the Court systematically incorporates language from the lower federal courts into its majority opinions.

Scholars often assert that public support for judicial authority induces Congress to grant resources and discretion to the Supreme Court. However, the theory of competing public agency embraced by the Constitution suggests that public support for courts cannot, by itself, explain congressional support for judicial authority. Instead, the logic of the separation of powers system indicates that legislative support for the institutional capacity of courts will be a function of public confidence in the legislature as well as evaluations of the judiciary. We test this theory, finding that public confidence in both Congress and the Court significantly affect congressional support for the Supreme Court, controlling for the ideological distance between the Court and Congress as well as the Court’s workload. The results offer a more refined and complex view of the role of public sentiment in balancing institutional power in American politics.

Existing work on the U.S. separation of powers typically views the Supreme Court as the final arbiter of constitutional and statutory disputes. By contrast, much comparative work on institutional politics explicitly recognizes the role of executives in enforcing and implementing court decisions. Drawing on that work, this study relaxes the assumption that executives must comply with Supreme Court rulings, and instead allows the propensity for executive compliance to depend upon indirect enforcement by the public. We develop and analyze a simple spatial model of Supreme Court decision making in the presence of executive discretion over compliance with the Court's rulings, and demonstrate that such discretion can act to restrict substantially the Court's decision making. Relying upon data collected for the Warren and Burger courts, we find empirical evidence consistent with the argument that the Supreme Court's ability to constrain executive discretion depends critically upon the public being aware of and understanding the ramifications of the case at hand.

This study finds that Congress removes court jurisdiction, and does so with increasing frequency over time. Institution-based models predict that Congress should strategically remove court review to control the judiciary's influence over policy when congressional and court preferences differ. Administrative realities suggest that jurisdiction removals may be aimed at controlling litigation, not judicial ideology. Denying courts’ review denies litigants court access, an action with ramifications for litigation driven costs, delays, and caseload pressures. Using a new database of all public laws containing jurisdiction stripping provisions from the 78th through the 108th Congresses, this study tests for relations between jurisdiction stripping and either federal case filings or ideological distances among the courts, Congress, and agencies. The findings indicate that administrative concerns related to litigation in which the government is a defendant influence jurisdiction stripping, but ideology does not.

The U.S. Supreme Court is widely recognized as setting its agenda by choosing to hear certain cases and refusing to hear others. But what influence, if any, does the Court have on the types of cases that are appealed to it? The Court has no formal power to solicit cases, but I contend that potential litigants interpret politically salient Court decisions as signals of its willingness to hear additional cases in certain policy areas. When this happens, the Court receives additional well-framed cases that allow it to make policy in those areas. The theoretical implications are twofold: (1) by signaling the litigant community to support litigation in certain policy areas, the Supreme Court can bring cases onto its agenda well before the certiorari process begins, and (2) the Supreme Court is dependent on extrajudicial actors and their resources to make comprehensive policy.

While past research has demonstrated widespread compliance in the Courts of Appeals with Supreme Court precedent (e.g., Gruhl 1980; Songer 1987; Songer, Segal, and Cameron 1994; Songer and Sheehan 1990), compliance is not automatic and is surely political. We examine compliance with Supreme Court overrulings of precedent-cases in which we might expect the lowest levels of compliance with Supreme Court policy prescriptions. We argue that several variables are relevant to the compliance decision and that those variables fall into two broad categories: characteristics of the Supreme Court precedent and characteristics of the circuit applying the precedent. In our event history analysis, we find that both precedent and circuit characteristics determine whether, and how quickly, a circuit follows a Supreme Court decision that overrules existing precedent; that is, unanimity, complexity, and the age of the overruled precedent, as well as the likelihood of Supreme Court review, are related to the compliance deci...

The decision to overrule U.S. Supreme Court precedent, we argue, results from the justices' pursuit of their policy preferences within intra- and extra-Court constraints. Based on a duration analysis of cases decided from the 1946 through 1995 terms, we show that ideological incongruence between a precedent and a subsequent Court increases the chance of it being overruled. Two legal norms also exert substantive effects as the Court is less likely to overrule statutory precedents and more likely to overrule precedents that previously have been interpreted negatively by the Court. While certain precedent characteristics also influence this decision, the political environment exerts no such effect. Consequently, one of the principal implications of this research is that legal norms influence Supreme Court decision making.

In late 2000, the full import of the role of the Supreme Court in the political system was realized when, by the narrowest of margins, five Justices effectively decided the outcome of the November presidential election. In a case that presented the Court with issues of states rights, the proper role of the federal judiciary, and even the meaning of the Fourteenth Amendment, the reputedly judicial activist adverse majority failed to see the irony of ruling that the Florida Supreme Court had incorrectly interpreted Florida law.' Bush v. Gore (2000), which originated in a Southern state, had impact far beyond the state of Florida and highlighted the highly political role of federal courts, especially the Supreme Court. Clearly, the Supreme Court of the United States can never again be referred to as the "least dangerous branch of government." There is no question that the Court can disturb the political "equilibrium by injecting new or rediscovered social problems or policy alternatives into the national dialogue" (Flemming, Bohte, and Wood 1997, 1247). While de facto selection of a president is not per se a policy alternative, a whole host of policies from abortion to education to taxes, as well as the future composition of the Court, will be affected by the Court's decision in Bush v. Gore. This decision in many ways crystallized my general level of discomfort with the state of judicial politics research. As a student of constitutional law, I believed that many in the judicial politics subfield had traded an understanding in the richness of the output of the courts for the opportunity to explain why decisions already made were made without much attention to the actual politics of the Court or the implications of its output. The creation and distribution of the U.S. Supreme Court Judicial Database, which includes 40 fields of infor

This article examines the decisions of litigants in criminal cases to appeal decisions from the U.S. Courts of Appeals to the U.S. Supreme Court. Using a random sample of search and seizure cases from 1962 through 1990 and a measure of the likelihood that the appeals court decision will be reversed if cert is granted, we demonstrate that litigants behave as if they rationally consider costs and benefits in their decisions to appeal. Given the extraordinary number of cases decided by lower federal courts vis-a-vis the number of cases the Supreme Court can decide, we argue that such behavior is necessary if the Supreme Court is to retain control over the federal judiciary.

This article examines the participation and success rates of state and local governments before the U.S. Supreme Court during 1953-1989. We find that they have experienced greater access to the Court over time, and that they have been winning an increasingly higher proportion of cases when appearing as direct parties, with some interesting variations depending on the type of case and litigants. Time-series analysis indicates that the most important factor in state and local success is the increasingly conservative ideology of the Court from the Warren years to the Rehnquist Court. An exception to improved performance is federalism cases. The findings have implications for the future character of American federalism and the development of a general model of judicial decision making.

This article contemplates the role the U.S. Supreme Court has played in the maintenance of the American two-party system. Specifically, we ask whether the Court has worked to constrain minor parties or to facilitate their efforts to become meaningful political entities. Our examination of litigation involving political parties depicts a Court that has remained "neutral" toward minor and major parties; indeed, we found some evidence of a positive relationship between minor parties and Court decisions, but only after we controlled for three other variables: cycles of American politics, case issues, and Court eras. These and other findings lead us to a number of conclusions about the role the Court plays in the American political system.

Previous impact research has primarily investigated controversial civil liberties decisions. The present study examines the response of the United States Courts of Appeals to changes in the labor and antitrust policies announced by the Supreme Court between 1950 and 1977. Significant impact was discovered. In each policy area, the decisional trends of the courts of appeals underwent a significant change after each of two policy shifts on the Supreme Court. Changes in the decisional trends of the courts of appeal were in the predicted direction even after controls were introduced for judges' party and holdover effects

The countermajoritarian activism of the Supreme Court is usually assessed in terms of the willingness of the Court to overturn legislation and/or to protect minorities. Using these criteria, the post-New Deal Supreme Court emerges as an exceptionally active countermajoritarian decision-making institution. It is also important, however, to examine the relationship between the Court's decisions and public opinion. Such an examination reveals that the Court's decisions overturning legislation and/or protecting minority rights were often supported by the distribution or at least the trend of nationwide public opinion and that when such support was lacking, the Court seemed reluctant to act. Thus, the policymaking activism of the post-New Deal Supreme Court was perhaps more consistent with majoritarian principles than is sometimes supposed.

O NE OF THE EARLIEST ATTEMPTS to specify a general theory describing the exercise of the Supreme Court's discretion to grant a hearing was published in 1963 by Joseph Tanenhaus and his associates. ' Nine years later, with different data and somewhat different methods, S. Sidney Ulmer undertook to replicate the Tanenhaus theory.2 The purpose of this short paper is to reexamine those articles and then to evaluate the theory with new data.

POLITICAL SUPPORT HAS, in the decade and a half since the publication of David Easton's A Systems Analysis of Political Life,' bid fair to join the handful of concepts central to political science. In 1966, we tried to tease from respondents to a national probability survey evidence of diffuse and specific support for the Supreme Court of the United States -and in several reports discussed the data developed and evaluated competing explanations for variations in diffuse support for the Court.2 Mindful of the risks in generalizing about sup

The Supreme Court has become an instrument for the application of an inadequate secular religion-Liberal idealism-to the social problems confronting our society. That idealism expresses an ontological theory of the nature of reality as atomistic and therefore as inevitably disorderly, purposeless, and irrational. Liberalism by its nature drives us relentlessly toward social disintegration. Liberal ontology contradicts the historical experience of civilized man, which has been one of expanding the area of order, purpose, and rationality.' It also contradicts our national experience as understood under liberalism's own empirical theory of knowledge. The meaning of the American adventure and the role of the Supreme Court-our present situation and our future-can be understood only in terms of the conflict within liberalism, between its irrational ontology and its rational epistemology, and between its atomistic ontology and our older tradition of order.

It is now well over a decade since the latest and bitterest in the series of clashes between the President and the Supreme Court which have marked American constitutional development. The "court-packing" debate of 1937 has receded into historical perspective without trace upon the institutional bases for the separatism which produced this struggle. But, while formally the respective power situations of the two parties may be much the same as before 1937, the chastening effect of that experience is likely to discourage either side from initiating any further trials by combat in the near future. The Court, it seems safe to assume, is likely to think a long time before it embarks upon another such calculated campaign to reverse the election returns. For his part the President probably has a better appreciation of the Court's resources for withstanding a direct assault, and is more likely to be convinced of the virtues of the waiting game. For the appointing power does give the President the trump cards, if the game lasts long enough for him to play them. At first it seemed that President Roosevelt was not to have this opportunity, and his patience proved inadequate under the strain. But, with the help of the retirement provisions of the 1937 act, he eventually got a chance to give the Court perhaps the most thorough renovating it has ever received, naming eight new associate justices and promoting Harlan F. Stone to the chief justiceship. President Truman within his first year of office was presented with two vacancies on the Court, one being that of the post of Chief Justice. Vacancies have come so thick and fast during the past decade, in fact, as to raise the possibility of a static Court for some time in the future. Five of the nine members of the present Court are still in their fifties, and the two oldest justices, Frankfurter (66) and Reed (64), are still comfortably this side of the (voluntary) retirement age of 70. Under these circumstances the timehonored practice of a conservative Court outlasting a liberal President may well be reversed.

A MONG THOSE NATIONS with federal arrangements of political power, the United States is one of the few maintaining a national judiciary through the states.' Unlike other federal systems where federal judges adjudicate only at the appellate level, United States district judges have a large and continuing area of original jurisdiction. They decide thousands of cases each year and hold court in every state in the union. The widespread location of a federal judicial power has important consequences for the operation of the American political process. In the first place, an important institution embodying national power is added to the political process at the state level. District courts initiate policy, they implement or may overrule policy made elsewhere in the political system. Further, political interests and factions in the several states may make political demands upon the federal courts as well as on federal legislators and administrators and all members of the state political system. Estimating their probable success, interested parties may choose to make claims in the first instance before the federal courts, or they may turn there as a last resort if efforts elsewhere in the political system have been unsuccessful. Despite its importance, we have little information concerning the political activities of the federal district courts. Although increasingly interested in the political functions of courts, political scientists have been more fascinated by the spectacular activities of the Supreme Court which they have studied in some detail. More studies of the basic federal judicial activities would increase our knowledge of the political functions of the courts and of the nature of the American political system. An excellent opportunity to study the district courts may be found in the quantity of race relations cases which have occurred

In a recent Gallup poll the question was asked: "Some people say that the Supreme Court decides many questions largely on the basis of politics. Do you agree or disagree with this?" Among those who had an opinion on this matter, 54 per cent agreed and 46 per cent disagreed. It is impossible, of course, to know what Mr. Gallup meant by the term "politics", nor how it was interpreted by the persons polled. If it referred to divisions in terms of party alignments, then it is easy to demonstrate that there is no "politics" on the present Court. During the 1945-46 term the Court was composed of six Democrats and two Republicans,' and on only two of the 77 decisions in which there was division of opinion among the justices during the term did the two Republicans line up against the six Democrats. But if politics means the political philosophies of the justices and their personal judgments as to the role of law and the Constitution in relation to economic and social development, then it is clear that politics does, and should, influence Supreme Court decisions. President Theodore Roosevelt put the case very well when he wrote to Senator Lodge in 1902, in connection with the appointment of Judge Holmes to the Supreme Court

I N AN ERA Olt SPEED AND MASS PRODUCTION it is anachronistic to find the justices of the Supreme Court assembling each DecisionMonday for a public reading of their printed opinions. The desirability of continuing this tradition is sometimes questioned in view of the fact that it is occasionally responsible for calling public attention to interpersonal conflict among the justices. A recent example of this occurred on December 14, 1959, in an exchange between Whittaker and Douglas in which the latter charged his colleague with writing a "smart-alecky" opinion.' While exchanges of this type may not enhance the confidence of the public in the olympian qualities of the judicial process, they are neither uncommon nor unexpected. Supreme Court justices are neither anointed priests, removed from knowledge of the stress of life, nor impersonal vehicles of revealed truth. They are men with vigorous minds and diversified backgrounds who interpret the Constitution in terms of their experience, their judgment about practical matters and their ideal pictures of the social order.2 The

T HIS PAPER REPORTS AN ATTEMPT to examine by quantitative methods the validity of certain hypotheses about the behavior of the Supreme Court, and of its individual members, in federal administrative-agency cases during the 1947-1956 terms. The presentation is divided into four parts: (1) a brief attempt to clarify the basic similarities and differences between those who engage in the quantitative analysis of appellate-court behavior and those who do not; (2) the conceptual framework with which I approach the study of the Supreme Court and some of the hypotheses which stem from that framework; (3) the methods employed in collecting and analyzing the data necessary for testing the hypotheses formulated; and (4) the evidence developed for the acceptance or rejection of each of these hypotheses.

A MAJOR PROBLEM FACING those who analyze the Supreme Court I involves the question of whether the decision processes are those of the Court as an institution or of individuals on it. How far does the Court form the Justice's conception of his role, and how far is that conception formed by his previous experience and opinions? To what degree are his opinions the product of the institutional setting and to what degree are they the product of prior interests? In attempting to answer, analysis of the Supreme Court has passed through three phases: traditionalism, realism, and behavioralism. Each has had its pitfalls as well as merits. Their differences might be summarized through an analogy to the tale of the Emperor's new clothes. The traditionalist firmly maintains that the Emperor is majestically apparelled. The realist indignantly asserts that he is stark naked, and hints at infantile dependence problems for those who require him clothed. The behavioralist wishes to ascertain why he is not clothed, and construct indices by which one may determine on any given occasion, the degree of his exposure. (Little of the inquiry is ever appreciated by the Emperor.) Despite an increasing degree of sophistication, the analytical techniques and conceptual tools applied to date leave unanswered questions concerning -the ways in which personal attitudes influence legal interpretation and action, and what conditions their effect. Specifically, they do not provide an adequate way of describing and identifying institutional factors in judicial attitudes. Obviously a tool of analysis is needed which will set the balance between structural and behavioral factors in a manner which makes more clear how and under what conditions personal attitudes may influence judicial decisions.

The work of the Supreme Court does not lend itself well to territorial division. The Court does not concern itself with the South as such or with any other region of the country. Even though the statement may have an element of triteness, the task of the Court is the equal applic4tion of equal laws. Without regional differentiation it interprets and applies the Constitution and federal statutes in the cases and controversies which are brought before it. Yet the work of the Court does in numerous instances have profound local import. Because of the peculiar economic and social problems of the South, certain groups of constitutional and statutory issues are raised primarily in cases which arise in that environment. In other words, certain constitutional and statutory provisions which are strictly general in phraseology bear in peculiar fashion on the South because of the conditions which prevail therein. It can be said, in brief, that the guarantees of the Fourteenth and Fifteenth Amendments and of certain other constitutional provisions as they apply particularly to negroes, while applicable everywhere, bring cases to the Supreme Court primarily from the South. From that area come most of the cases involving discrimination against negroes in the selection of juries and grand juries; those dealing with coerced confessions of guilt; those involving the right of defendants to counsel; those dealing with the rights of negroes to equal education and equal facilities in public transportation; and those having to do with excluding negroes from the polls. It is also true that certain general regulatory acts of Congress have borne with peculiar heaviness upon the economy of the South or have peculiarly affected the sen