The Supreme Court’s decision in Marks v. United States instructs lower courts interpreting plurality judgments to follow the opinion concurring on the narrowest grounds, or the opinion closest to the dissent, creating the possibility that the position of the Court may not be one favored by the median justice. While the Marks doctrine creates a problem theoretically, it is unclear how frequently these problems materialize. In this paper, we explore how frequently the Marks doctrine actually results in non-median outcomes. We conclude with thoughts about the importance of these cases and speculate about the future of the Marks doctrine.

State court systems are being reshaped by the widespread adoption of drug courts. However, there has been limited attention to what drives the decision to create drug courts in the states. I link the establishment of drug courts to local issue environments found in each state that support proactive judicial and legal elites. I propose hypotheses that link the density of drug courts to judicial professionalization, state funding of courts, drug arrest rates, and levels of court consolidation. I test these hypotheses with panel data from 2009 to 2014. I find that states with more professional judiciaries and higher rates of drug arrests are more likely to adopt drug courts, that higher levels of court consolidation show a small negative effect and, finally, that higher levels of state funding for court systems do not have consistent effects. I conclude that there is support for (a) using the issue environments approach to analyze the establishment of drug courts and (b) considering issue environments when analyzing other community oriented changes in state court systems.

This manuscript examines how federal appeals courts respond to precedent, in this case, Central Hudson Gas & Electric Corporation v. Public Service Commission. This account includes a comprehensive theory that examines attitudinal factors that relate to Central Hudson, specific relevant legal factors that relate to the case, as well as strategic considerations. We additionally argue that federal appeals courts may reasonably ignore Central Hudson in certain specific instances (most notably when other highly relevant cases are available for lower federal court judges to use). Our results show partial support for several portions of our theory, including a lower propensity for federal appeals courts to positively treat precedent when ideological distance is high. We also find support for one of our factual-based hypotheses (regarding cases that involve drugs and attorney advertising, where other U.S. Supreme Court precedents are readily available for appeals court judges to use).

State legislatures introduce court-curbing legislation as they threaten to restrict the independence of state high courts. While scholars have examined when this legislation is introduced and what drives the introduction, we know little about how state supreme courts react to this legislation. In this paper, I begin the examination into how state courts react to court-curbing legislation by looking to the court’s exercise of its judicial review power. I theorize that state supreme courts are less likely to invoke their power of judicial review when facing increased court-curbing legislation because judicial review is the most direct form of communication between the branches. I also argue communication is necessarily conditioned by the methods of selection and retention in the states. Examining narrow and broad court curbing, I find that neither type of introduction affects the use of judicial review by the state supreme courts and that, in line with previous scholarship, courts are using legislative ideology as an informational signal in this interbranch interaction.

The Supreme Court’s increased use of the “shadow docket” and the salience of the issues handled on the shadow docket have raised normative concerns over its use. Critics argue that the Supreme Court should not make law without following established procedures of a full briefing, oral arguments, and deliberation. Those seeking to defend the Court point out that decisions made on the shadow docket do not create binding precedent and only resolve the issue before the Court. We examine whether shadow docket decisions are used as precedent by lower courts. We come to two general conclusions. First, shadow docket cases are invoked as precedent much less frequently than merits docket cases. Second, shadow docket cases receive more engagement from the lower courts when the Supreme Court provides a justification for its shadow docket decision and when the Supreme Court grants relief and thereby changes the status quo. Our results help evaluate and provide responses to the normative criticisms of the Court’s reliance on the shadow docket to create law.

Movement lawyering often results in litigation battles. Litigant lawyers in Supreme Court abortion cases, who are typically affiliated with, if not members of the reproductive-rights and antiabortion movements, for many years have engaged in a war of words as they dispute abortion laws and what constitutes an undue burden on abortion access. I use and build on social movement framing theory to examine the legal-framing contest unfolding across the undue-burden abortion cases, toward discerning the anatomy and causal sequence of this discursive legal battle. Using both qualitative and quantitative-computerized text analysis, I show that a broad discursive-opportunity structure shapes the legal-framing contest, and the contest itself is structured by framing innovations and persistence and by dialogic and monologic framing. This theoretical framework can aid our understanding of the sometimes fierce discursive battles in movement litigation, shedding light on how social movements influence legal policy development.

President Trump brought judicial appointments to the pinnacle of political salience while campaigning and in office. He was also the first president to inherit Senate rules making it easier to confirm judicial appointments while past partisan obstruction provided his administration with a backlog of vacancies. How then, did President Trump’s ability to gain Senate confirmation for judicial nominees compare to recent presidents? We find that he was indeed able to fill an historic number of vacancies. However, the administration was not universally successful as key nominations had to be prioritized at the expense of others. Our findings assess Trump’s legacy on judicial appointments and demonstrate the practical tradeoffs newly emerging in appointment politics.

We collected data on individuals’ support for politically motivated “hardball” tactics for U.S. Supreme Court confirmations from three distinct time periods: in the days leading up to the initial confirmation proceedings for Brett Kavanaugh’s elevation to the U.S. Supreme Court, immediately following the second round of hearings held to address the sexual assault allegations brought by Christine Blasey Ford against Kavanaugh, and following the confirmation hearing for Amy Coney Barrett. We investigated whether these high-profile proceedings, following protracted Senate wrangling, affected whether priming respondents to think about past norm violations and partisan gamesmanship affected their support for the use of various confirmation tactics and their assessment of the Supreme Court’s institutional legitimacy. Our results show that the Court is not necessarily in control of public perceptions of the institution. Specifically, drawn-out Senate gamesmanship is impacting the Supreme Court’s institutional standing and individuals tend to dislike norm violations within the confirmation process. However, such concerns can be overwhelmed by ideological or partisan interests in an environment of greater partisan tension and outright conflict. Taken together, our findings suggest that the traditionally static nature of the Court’s base of diffuse support may be on tenuous ground due to its continued politicization at the hands of outside actors.

Jury trials are considered a key element of the American criminal justice system, even as many question the continued legitimacy of the jury system and its ability to be fair. Using data from actual jurors collected at both the beginning of jury service and after deliberations, this research examines whether jurors’ views of the fairness of the jury system affect perceptions of evidence presented to them at trial. By surveying jurors at the beginning of jury service, this research uses measurements of jurors’ views which are not affected by the court process itself. We find that jurors who enter jury service with a stronger belief in the fairness of juries are more likely to favor the defense after hearing the evidence. Policy implications are discussed, including using caution with harsher methods to improve juror rate of appearance because of the potential effects on jurors’ views.