Individual Justices Research Articles

What’s in a Name: How US Supreme Court Justices Shape Law and Policy in the Lower Courts

We investigate whether inherent differences between the majority opinions of US Supreme Court justices result in certain justices being systematically more influential compared to their peers. We offer a theory in which lower court adoption of the Supreme Court’s precedents are influenced through justice opinion attributes, case characteristics, and circuit-level influences. To test the predictions, we examine the universe of responses by US Courts of Appeals to the signed majority opinions of individual justices by assembling a dataset of over 130,000 observations. We assess the interdependence of the mechanisms at work through a coarsened exact matching algorithm. We find that intricate tendencies in opinion writing disparately impact lower court attentiveness to the Supreme Court’s decisions. These findings offer new and important implications toward a richer understanding of the influence of individual justices on legal development and policy adoption in the American courts.

The dynamics of ideology drift among U.S. Supreme Court justices: A functional data analysis.

We study the U.S. Supreme Court dynamics by analyzing the temporal evolution of the underlying policy positions of the Supreme Court Justices as reflected by their actual voting data, using functional data analysis methods. The proposed fully flexible nonparametric method makes it possible to dissect the time-dynamics of policy positions at the level of individual Justices, as well as providing a comprehensive view of the ideology evolution over the history of Supreme Court since its establishment. In addition to quantifying individual Justice’s policy positions, we uncover average changes over time and also the major patterns of change over time. Additionally, our approach allows for representing highly complex dynamic trajectories by a few principal components which complements other models of analyzing and predicting court behavior.

Justice-level heterogeneity in certiorari voting: US Supreme Court October terms 1939, 1968, and 1982

AbstractAlthough the literature on US Supreme Court agenda-setting is sizable, justice-vote-level multivariate analyses of certiorari are almost exclusively limited to samples of discussed cases from 1986 to 1993. Moreover, these studies have done very little to explore justice-level heterogeneity on certiorari. Here, we address these lacunae by analyzing the predictors of individual justices’ cert votes on all paid cases from the 1939, 1968, and 1982 terms. We find substantial justice-level heterogeneity in the weight that justices place on the standard set of forces shaping the cert vote. We also show that some of this heterogeneity is associated with justices’ experience and ideological extremism, largely in theoretically predicted ways. In closing, we sound a note of caution on drawing conclusions about effects of justice attributes, when the number of justices is relatively small.

Constructing a Tower of Babble: An Examination of Purpose in Establishment Clause Jurisprudence

“Purpose” is a key component of modern Establishment Clause jurisprudence. While the Supreme Court has expanded the role purpose plays in various areas of constitutional analysis over the last half-century, the Court seemingly continues to muddy the waters as to purpose’s proper place in Establishment Clause cases. This Comment focuses on the function and operation of purpose in Establishment Clause cases in order to probe the complications and obstacles inherent to this area of constitutional law. By constructing and applying an analytical framework that examines modern Establishment Clause cases through the lenses of “conceptions of purpose,” “evidence of purpose,” and “indicia of impermissible purpose,” this Comment provides critical takeaways about the development and current state of the Establishment Clause—as well as potential future outcomes in these cases. Ultimately, the dispositive consideration in Establishment Clause cases is the utilization and weight given by individual Justices in any given case to the factors discussed in this Comment’s analytical framework. This conclusion demonstrates the judge-dependent nature of these cases and the value certain Justices place on the institutional legitimacy of the Supreme Court and the judicial branch as a whole.

Attributes beyond Attitudes: Personality Traits on the US Supreme Court

AbstractModels of behavior on the US Supreme Court almost universally assume that justices’ behavior depends, at least in part, on the characteristics of individual justices. However, few prior studies have attempted to assess these characteristics beyond ideological preferences. In contrast, we apply recent advances in machine learning to develop and validate measures of the Big Five personality traits for Supreme Court justices serving during the 1946 through 2015 terms based on the language in their written opinions. We then conduct an empirical application to demonstrate the importance of these Supreme Court Individual Personality Estimates and discuss their proper use.

The Judicial Diplomacy of the Supreme Court of Canada and its Impact: An Empirical Overview

Courts and judges across the globe, including the Supreme Court of Canada, are actively engaged in a metaphorical “dialogue” through the exchange of their judicial decisions. Is it the only type of communication happening among courts and judges? This empirical study, centred on interviews with ten current and former justices of the Supreme Court and nonpublic archival documents, shows that courts have established regular bilateral relationships with foreign counterparts, participate in multilateral transnational judicial associations and organizations, and have occasional contacts with other foreign courts, which I call “judicial diplomacy.” In addition to these institutional court-to-court relationships, the transnational judicial conversation occurs also between individual justices. Judges play a key role in such transnational conversations and exchanges. This article reveals that former and current justices of the Supreme Court interact with foreign and international judges not only within official meetings of the Supreme Court, or as part of the Supreme Court’s delegation, but also individually through several mechanisms. The bilateral or multilateral foreign relationships of the Supreme Court, whether as an institution or through individual justices, should not be considered informal or unimportant as they have demonstrable effects. It is through these meetings that they exchange views on their decisions and generate substantive, procedural, and court management ideas, often turning these ideas into action, such as establishing global and regional judicial networks, judicial training institutions, or electronic networks. Ultimately, the data of this research demonstrates that this dialogue with foreign counterparts also have a broader impact on Canada’s global reputation and foreign policy.

Erasing the Thin Blue Line: An Indigenous Proposal

My novel claim is that there must be an accounting of how the judiciary has employed the theory of the social contract to dehumanize large swaths of poor persons and people of color. I argue that it is the judiciary, even more so than the legislatures, that has enabled and encouraged the police to engage in deep-seated injustices every single day. I will show that social contract talk is deeply embedded in judicial decisionmaking and policy articulation in the criminal justice realm. The judiciary’s social contract talk is the language of inclusion and exclusion; either you are protected under the contract, or you are not. The judiciary’s deference to police discretion and immunization of the police from accountability has allowed the police to decide which persons are compliant or in breach of this metaphor, but with real-world, devastating consequences. On a minute-by-minute basis, instant-by-instant, the police decide who is protected and who is a threat. Luckily, the time for judicial accountability seems right. Several state supreme courts – Alaska, California, Illinois, Maine, Massachusetts, New Jersey, Oregon, Rhode Island, Tennessee, and Washington, as well as several other individual justices of these courts and others – acknowledged their roles in facilitating racial injustice in the summer of 2020. These courts and judges seemingly stand ready to act, but they also need a roadmap for action. The political theories of Indigenous nations could help fill the gap. Consider Anishinaabe political theory. Anishinaabe political theory is inclusive. One is “in” by default. Anishinaabe political theory is over-inclusive as well, in that everything we can perceive in the world is “in.” There is no “contract” talk. Anishinaabe political theory guarantees what social contract talk promises but fails to deliver. Moreover, the American judicial notion of a social contract unhelpfully assumes that chaos is the baseline condition because people are inherently violent and selfish. Anishinaabe political theory assumes that harmony is the baseline condition. Anishinaabe governance divides powers and responsibilities of tribal leaders. There is no winner-take-all, majority rule decisionmaking. Anishinaabe political philosophy rejects the police as mere warriors. Violence and internal security do not mix in Anishinaabe government. Imagine a criminal justice system where a police officer conducting a well visit, who finds a person in need of assistance because of an addiction, and leads the government’s response in assisting that person, rather than criminalizing that person. Imagine a criminal justice system where the police officer who catches a thief in the act is charged with investigating the reasons behind the theft, and leads the government’s response in ensuring that the thief’s poverty is alleviated and the victim’s loss is compensated. Imagine a police department that heals as well as protects and serves.

The Judicial Diplomacy of the Supreme Court of Canada and Its Impact: An Empirical Overview

Courts and judges across the globe, including the Supreme Court of Canada (SCC), are actively engaged in a metaphorical “dialogue” through the exchange of their judicial decisions. Is it the only type of communication happening among courts and judges? This empirical study, centered on interviews with ten current and former justices of the SCC and non-­‐public archival documents, shows that courts have established regular bilateral relationships with foreign counterparts, participate in multilateral transnational judicial associations and organizations, and have occasional contacts with other foreign courts, which I call “judicial diplomacy”. In addition to these institutional court-­to-­court relationships, the transnational judicial conversation occurs also between individual justices. Judges play a key role in such transnational conversations and exchanges. This paper reveals that former and current judges of the SCC interact with foreign and international judges not only within official meetings of the SCC, or as part of the Court’s delegation, but also individually through several mechanisms. The bilateral or multilateral foreign relationships of the SCC, whether as an institution or through individual judges, should not be considered informal or unimportant as they have demonstrable effects. It is through these meetings that they exchange views on their decisions, generate substantive, procedural, and court management ideas, often turning these ideas into action; such as establishing global and regional judicial networks, judicial training institutions, or electronic networks. Ultimately, the data of this research demonstrate that this dialogue with foreign counterparts also have a broader impact on Canada’s global reputation and foreign policy.

Precedent and Discretion

Supreme Court precedent is a topic of perennial prominence. The Court overruled or severely limited multiple precedents last year, just as it did the year before that. Because of our widely-repeated norm of stare decisis, every overruling is criticized. Scholars have then debated whether the Court needs a stronger norm of stare decisis, so that it overrules fewer cases. This focus is misguided. Rather than worrying about which cases will be cast aside, we should pay more attention to those precedents that are left standing in place. Many of the Court’s questionable precedents nonetheless go unquestioned. The real problem is not that the Court overrules too much, but that it overrules without a theory that explains why it overrules so little. At last, it seems such theories may be coming. Last term, Justice Thomas (in Gamble v United States) and Justice Alito (in Gundy v United States) each attempted to explain some of their decisions to reject and adhere to precedent. These explanations deserve serious scholarly scrutiny, which they have not yet received. Unfortunately, these interventions do not solve, and indeed they exacerbate, the problem. What they propose is neither a regime of adherence to precedent, nor a regime without precedent, but rather a regime in which individual Justices have substantial discretion whether to adhere to precedent or not. This turns precedent from a tool to constrain discretion into a tool to expand discretion, and ultimately into a tool to evade more fundamental legal principles. Part I describes the state of stare decisis in the Court today. Part II discusses Justice Thomas’s theory that precedent must be overruled when it is “demonstrably erroneous.” Part III describes Justice Alito’s theory that precedents ought not be overruled on the basis of “halfway originalism.” Part IV explains why discretionary precedent — of which these theories are examples — are worse than no precedent at all.

Humor and Persuasion: The Effects of Laughter during US Supreme Court's Oral Arguments

Is the decision‐making of Supreme Court justices influenced by extraneous factors beyond law and policy? We explore this question by examining attorney‐induced laughter during oral arguments in cases heard by the Court. Drawing on theories of political psychology and social cognition, we posit that laughter serves as a positive affective cue that might favorably dispose justices (albeit subconsciously) to the side causing the laughter. Analyzing oral argument transcripts during the 1986–93 terms, we find that the side causing more instances of laughter is more likely to win the votes of individual justices, even while controlling for other legally and politically relevant factors. We further find that the effect of laughter is conditional—it exerts a heightened persuasive power on ideologically congruent justices, in noncomplex cases, and when the legal argumentation is of higher quality. Our research thus contributes to the growing literature on personal and emotional aspects of judicial decision‐making and, specifically, the emerging scholarly interest in the role of humor during Supreme Court oral arguments.

The Sum of its Parts: How Supreme Court Justices Disparately Shape Attention to Their Opinions

ObjectiveWhile studies frequently examine the impact of the U.S. Supreme Court as an institution, little is known about how individual justices influence attention to their opinions. We investigate whether inherent differences in the majority opinions of individual justices result in certain justices being systematically more influential than their peers.MethodsWe advance a theory in which Supreme Court adoption of prior opinions is influenced by factors that relate to the identity of the authoring justice. To test these propositions, we explore the universe of the Supreme Court's signed majority opinions from 1986 to 2000.ResultsWe find that intricate tendencies in opinion writing vary systematically by justice in key dimensions relating to their opinions. We also discover that differences among the justices exert an asymmetric impact on citation and adherence to precedent.ConclusionThe findings offer important theoretical and normative implications toward a better understanding of the impact of Supreme Court justices on attentiveness to precedent and doctrinal development.

Personalizing the U.S. Supreme Court Through Attention to Individual Justices

ObjectivesWe examine media incentives shaping the nature of U.S. Supreme Court justices’ news coverage and, in particular, how those incentives often lead news outlets to concentrate coverage on particular justices on the Court.MethodsFirst, we examine and model aggregate, over time patterns of news attention devoted to individual justices in the New York Times over the past four decades. Second, we compare and model temporal variation in individual justice coverage relative to generic coverage of the Supreme Court.FindingsThe results suggest that particular justices receive disproportionate attention from the national news media. Further, we demonstrate how individual justices have received a greater proportion of print media coverage over time and in a way that is shaped by internal division among the justices.ConclusionThe findings provide a more complete and nuanced understanding of how national media utilize resources to maximize journalistic impact and personalize the Court as an institution.

The Politics of Disabled Supreme Court Justices

The Politics of Disabled Supreme Court Justices JUDGE GLOCK Supreme Court history is littered with stories of incapacitated or disabled Justices lingering long past their prime. Sometimes, disabled Justices have merely delayed the work of the Court. At other times, they have brought the work ofthe Court into disrepute.1 Yet in more than 200 years of political and constitutional debate, the U.S. political system has never found a satisfactory answer to the problem of disabled Justices. At certain periods in U.S. history, how­ ever, Congress and the President have inter­ vened to entice or push disabled Justices from the bench. Although researchers have noted how Congress passed pension acts for federal judges in general, and even pension acts for individual disabled Justices, they have neglected to note how politics and personal finances played an essential part in when and how Congress decided to pension individual Justices, and how, as many of the pension acts were time-limited, Congress essentially pushed some Justices from the bench.2 The pension bills for disabled Justices have thus created a type ofjudicial dependence on the elected branches of government that other constitutional provisions tried to avoid. This article will look at how Congress and the President have struggled to entice or remove disabled Justices from the bench. It will focus on how they used time-limited pensions to convince two Justices, Ward Hunt and William Moody, to leave.3 It will also examine how these acts influenced President Franklin D. Roosevelt’s Court-Packing Plan, or “Un-Packing” Plan as some saw it at the time, since the plan tried to induce older and disabled Justices to leave the bench.4 One final, though forgotten, effect of the failure of Roosevelt’s plan was the passage of a con­ gressional act to allow voluntary retirement for disabled Supreme Court Justices, which is still in effect today. The Early Debate on Judicial Disability Judicial Disability and the Constitution The American Constitutional Conven­ tion in 1787 had to ponder the important 152 JOURNAL OF SUPREME COURT HISTORY question of how to ensure both judicial independence and accountability. From early in the Convention, the attendees agreed on the English standard ofjudicial independence on the bench during the “good behavior” of the judges, subject only to the impeaching power of Congress.5 Some who supported this standard, however, still thought there should be an alternative way to remove judges. On August 27h, the scholarly John Dickinson of Delaware submitted a motion to the Convention that would have allowed Congress to vote, by mere majority, on an “address” to the President against a particular judge, after which the President could remove thatjudge, without impeachment and without showing of bad behavior.6 The main impetus behind Dickinson’s amendment appears to have been a desire to remove disabled judges. It was a modified version of the British Parliament’s “address to the king,” under which the British Par­ liament, since 1700, could remove judges without impeachment. It was also a version of Massachusetts’s 1780 constitutional pro­ vision allowing for legislative “removal by address,” a variant of which was included in the constitutions of at least four other states. The general assumption was that such an address would be used as a type of “removal for incapacity.”7 Yet, despite the support of Elbridge Gerry and John Sherman, the Constitutional Convention voted against Dickinson’s proposal.8 Some at the time still worried about the absence of such a clause for incapacitated judges. Alexander Hamilton, in Federalist 79, noted “The want of a provision for re­ moving the judges on account of inability has been a subject of complaint.” But Hamilton worried that “An attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities than advance the interests ofjustice or the public good.” Although Hamilton noted that New York had taken “a particular age as the cri­ terion of inability,” in that case age sixty, he thought such a strict line was both arbitrary and unfair. In effect, Hamilton thought there could and should be no special provision for disabled judges.9 Still...

The 'Tenth Justice' Revisited: The History of Amicus Oral Argument by the Solicitor General at the Supreme Court

The Solicitor General (“SG”) is often called the “Tenth Justice,” a title that captures his unique relationship with the Supreme Court and his independence from the executive branch. No phenomenon better reflects this relationship than the Court’s practice of permitting amici to participate in oral argument. Although amicus oral argument is nominally available to all litigants, the modern Court grants this privilege almost exclusively to the SG. Scholars and Court watchers have long argued that this practice is justified because the SG uses it to pursue the rule of law and an objective sense of “justice.” This Article challenges that account. The SG’s dominance of amicus oral argument is a relatively recent phenomenon. In the early 1900s, the SG requested amicus oral argument almost exclusively to defend federal statutes or federal agency action. During this time, the Court granted all his amicus oral argument requests. But, over time, SGs increasingly entered political cases with only tenuous connections to the federal government. During the late 1980s, the Court became skeptical of the SG’s political independence; in response, it denied seventeen percent of his amicus oral argument motions, and individual Justices criticized him in internal memoranda. Thirty years later, the Court permits the SG to argue as an amicus in almost any case he wants, even though he increasingly weighs in on politically charged cases with de minimis implications for the federal government. This new equilibrium has profound consequences. By permitting the SG to be heard any time he asks, the Court systematically biases the perspectives that it hears. This bias undermines due process principles and the adversarial system, and it ignores the Court’s own history and rules. We offer a proposal for reform.

The Citation Practices of the High Court of Australia, 1905–2015

We provide an empirical study of the High Court’s citation to case law and secondary sources at decade intervals between 1905 and 2015. We document trends in the number and type of citations over time, both for the Court as a whole and for the individual Justices. We find that in each of the sample years between 1905 and 1975, the Court cited relatively few authorities and for most of this period the majority of citations were to the Court’s own previous decisions or to decisions of the English courts. However, over the last four sample years—1985, 1995, 2005 and 2015—the Court cited more authority. The Court cited an increasing proportion of its own previous decisions over this period as well as a higher proportion of authority from a more diverse range of sources, including secondary sources, largely at the expense of citations to English cases. We conclude that this reflects the emergence of a distinct Australian common law with the High Court as its final arbitrator.

How Much French Do They Speak Anyway? A Bilingualism Index for Supreme Court Justices, 1985-2013

Mandatory bilingualism for Supreme Court judges tantalizes Canadian politics for at least ten years now. The advocates of judicial bilingualism have repeatedly tried (and failed) to enshrine into law the requirement for Supreme Court justices to be functionally bilingual, i.e. the ability to “read materials and understand oral argument without the need for translation or interpretation in French and English”. For them, integrating mandatory bilingualism as a legislative requirement in the appointment process is a panacea. Their opponents argue that language proficiency in French should not be a sine qua non condition for Supreme Court justiceship and that requiring it would prevent excellent candidates from being appointed. However, despite the fact that empirical statements abound on both sides, there is very little empirical evidence regarding the actual impact of unilingualism and bilingualism on Canadian judicial institutions and simply no evidence whatsoever about its impact on individual judges’ behavior. Building on our ongoing research on judicial bilingualism, in this paper we try to evaluate the level of bilingualism of individual justices. What our findings suggest is that the behavior of Francophone and Anglophone bilinguals is influenced by the linguistic competency of their colleagues. Our findings also suggest that some Anglophone justices that are deemed to be bilinguals do not behave very differently from their unilingual colleagues. In light of these results, we reassess the proposition of integrating mandatory bilingualism as a statutory prerequisite for future Supreme Court appointees and discuss some policy alternatives that could prove more efficient in moving the Court towards real institutional bilingualism.

‘The Court, it is I’? Individual judicial powers in the Brazilian Supreme Court and their implications for constitutional theory

Abstract:Collective decision-making is often taken as an ‘institutional fact’ when it comes to supreme and constitutional courts. In this article, we focus on the example of the Brazilian Supreme Court (Supremo Tribunal Federal, or STF) to argue that this feature should not be assumed from the outset, as it does not necessarily hold, across countries, for all relevant powers that courts may have. As this example illustrates, the assignment to individual Justices of three distinct powers, namely agenda setting, position taking, and decision making, can have profound effects on the legislative status quo outside the court, amounting in some circumstances to a form of individual judicial review. This expanded typology of court powers both points to an underexplored spectrum for comparing different courts and makes it necessary to discuss if and how particular distributions of such powers within multi-member courts are normatively justified. In the specific case of the STF, we argue that the specific combination of individual allocations of agenda setting and decision-making powers, which gives rise in practice to the possibility of individual judicial review, cannot be reconciled with basic tenets of constitutional theory.

Conceptual Solutions to Gerrymandering

Paper reviews development of gerrymandering solution legislation including review by United State Supreme Court and difficulties raised by individual Justices. Problem is defined in context of reflexive logical system that can be solved best by eliminating political decision consideration from the redistricting process. It proposes a set of factors non political that are weighted to allow for a proposed solution that withstands objections raised.

Attributes Beyond Attitudes: Measuring Personality Traits on the U.S. Supreme Court

Models of behavior on the U.S. Supreme Court almost universally assume that the justices' behavior depends on the characteristics of the individual justices. However, few prior studies have attempted to measure the justices' individual characteristics beyond their ideological preferences. In contrast, we apply recent advances in machine learning to measure the Big Five personality traits of U.S. Supreme Court justices serving during the 1946 through 2015 terms based on the language in their written opinions. We then conduct an empirical application to demonstrate the importance of these Supreme Court Individual Personality Estimates (SCIPEs) in predicting the justices' behaviors.

Ideological influences on governance and regulation: The comparative case of supreme courts

AbstractA key influence on governance and regulation is the ideology of individual decisionmakers. However, certain branches of government – such as courts – while wielding wide ranging regulatory powers, are expected to do so with no attitudinal influence. We posit a dynamic response model to investigate attitudinal behavior in different national courts. Our ideological scores are estimated based on probability models that formalize the assumption that judicial decisions consist of ideological, strategic, and jurisprudential components. The Dynamic Comparative Attitudinal Measure estimates the attitudinal decisionmaking on the institution as a whole. Additionally, we estimate Ideological Ideal Point Preference for individual justices. Empirical results with original data for political and religious rights rulings in the Supreme Courts of the United States, Canada, India, the Philippines, and Israel corroborate the measures' validity. Future studies can utilize Ideological Ideal Point Preference and the Dynamic Comparative Attitudinal Measure to cover additional courts, legal spheres, and time frames, and to estimate government deference.