Agendas, Decisions, and Autonomy

Abstract

Abstract Legal scholars and social scientists have long traced how private attorneys influence judicial behaviour. By contrast, a cohesive and comparative agenda probing how government lawyers impact the courts remains elusive. This chapter serves as a springboard for this agenda by identifying three ways that government attorneys influence judicial behaviour: by shaping judicial agendas, decisions, and autonomy. The chapter suggests that each mode of influence tends to be wielded by a distinct type of government lawyer—public prosecutors, government litigators, and executive branch attorneys—and illustrates the mechanisms driving their influence over judges via concrete examples. First, the author spotlights research delineating how government lawyers in law enforcement roles can wield a ‘politics of discretion’ to shape judges’ agendas and their supervisory capacity by strategically withholding or prioritizing particular lawsuits. Next, he highlights studies demonstrating how attorneys representing governments in court can engage in a ‘politics of positionality’, leveraging their role as intermediaries and repeat players to influence judgments—provided that their credibility as litigators is not hampered by overt politicization. Finally, the chapter chronicles a burgeoning literature on attorneys in the executive branch who weaponize their legal training to undermine judicial independence and manufacture obeisance—what the author calls ‘power politics, lawyer-style’.