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In the Supreme Court's most closely divided cases, one pivotal justice can determine the outcome. Given this fact, judicial scholars have paid substantial attention to the swing justice. This paper makes two theoretical contributions to the study of the swing justice and this justice's resulting influence on case outcomes. First, we show that in a substantial number of cases, the justice that casts the pivotal vote is not the median justice on the Court. Second, we argue that the swing justice will typically rely less on attitudinal considerations and more on strategic and legal considerations than the other justices on the Court. The analysis suggests that even among the Court's most closely divided decisions, which are typically thought to reflect the Court's most ideologicallydriven outcomes, the pivotal swing vote is significantly less likely to reflect attitudinal predispositions and more likely to reflect strategic considerations, such as the public's preferences, and case-specific considerations such as the position advocated by the Solicitor General. The theory and findings suggest that a failure to consider the unique behavior of a pivotal actor-whether on the Supreme Court or any other decision making body-can lead to incorrect conclusions about the determinants of policy outputs. [ABSTRACT FROM AUTHOR]

In this paper, we synthesize and extend theoretical accounts of the solicitor general's (SG) influence on the votes of Supreme Court justices. In particular, we argue that the level of politicization exhibited by the SG can affect both the foundation of political support the SG enjoys from ideologically proximate justices and the strength of "outlier signals" offered in particular cases. When the SG exhibits increased politicization, outlier signals are likely to be especially useful to ideologically distant justices and, therefore, predictive of their behavior. When the SG is less politicized, outlier signal briefs should be more equivalent to mainstream briefs, and, therefore, relatively less informative. Analyzing justices' votes in civil liberties and civil rights cases, we find empirical support for our theoretical claims. In particular, we find that the effects of politicization in the Office of the Solicitor General and outlier signals contained in individual case briefs are conditional on one another and on the degree of ideological divergence between each justice and the SG. This study offers a more complete account of the ways that political dynamics shape executive branch litigation and linkages between the president and the Supreme Court. [ABSTRACT FROM AUTHOR]

Many scholars examine the delegation of policymaking authority to federal agencies and the extent to which Congress and the president can secure policy outcomes consistent with their preferences. Yet, existing research has devoted much less attention to the third major American institution, the judiciary. Agencies should anticipate the prospect of facing judicial review and seek to avoid costly litigation. Building off previous work on the influence of lower federal courts on agency decision making (e.g., Canes-Wrone 2003; Howard 2001; Howard and Nixon 2002), I argue that federal agencies possess the incentive to not only win challenges in court but also to avoid them altogether. Resources are better spent promulgating new regulations to promote an agency’s mission, rather than defending established policy. Therefore, the prospect of judicial review might compel agencies to craft policies that will both survive and avoid court review. Using original data of decisions by the Environmental Appeals Board, I will show that the EAB issues more pro-environment rulings when confronted with a liberal court jurisdiction. Overall, this study should contribute to scholars’ understanding of judicial influence in the policymaking process. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Traditional accounts of the solicitor general's (S.G.) influence on the Supreme Court emphasize that professionalism customarily serves as the primary determinant of the office's decision making and influence. However, scholars have devoted much less attention to the potential for strategic behavior in managing the federal government's litigation before the Court. I develop a theory of the S.G. as a strategic gatekeeper, and argue that the solicitor general promotes bureaucratic policies consistent with the Court's preferences as a means to ensure success and protect the office's reputation. Using individual-level data spanning the 1969-2004 Supreme Court terms, the results demonstrate that the Court's preferences significantly affect the ideological nature of amici filed on behalf of federal agencies, independent of legislative and executive influence. Overall, the data suggest the presence of strategic behavior and a more nuanced view of the S.G.'s role before the Court. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Analysts have argued that the Office of the Solicitor General has been politicized by presidents anxious to use the office to further their political goals. Has the SG become a viable political resource for the president or is the Office still able to hold the political forces at arm's length? We hypothesize that the ultimate answer is nuanced: there are areas in which the political forces impose themselves on the Office and others in which the Solicitor General has the room to put legal factors ahead of political concerns. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]