Judicial Ideology Research Articles

Genre, ideology, and knowledge in academic research and public policy

In the last 30 years genre scholars have explored the ideological dimension of genre, illustrating how genres compel individuals to act in certain ways and how individuals respond to them. This article takes the ideological view of genre and analyzes the problem of knowledge mobilization as an ideological negotiation between research and legal genres. Using Foucault's will to truth and Bhatia's colonization, this case study analyzes one Canadian public inquiry that used psychology research and influenced many legal and policy documents. The analysis of the commission report, transcripts from the preliminary hearing, and interviews reveal the manner in which judicial ideology is inscribed in judicial genres that regulate the extent and manner of knowledge mobilization.

Mismatched or Maligned?: A Race Crit's Qualitative Analysis of African American Males in Law School

As a prosecutor for approximately a dozen years, I tried to implement the judicial ideology of blind justice. My interdisciplinary approach connecting law with education and cultural studies has led me to believe that another kind of blindness – colorblind – is both unhelpful and unconscionable. Researchers, such as Professor Richard Sander and Thomas Sowell, have argued that there is often a “mismatch” between African American students and their institutions of higher education, resulting in lower levels of success for such students. Another implication of the mismatch theory is that affirmative action policies, that may have helped these students gain admission to top-tier universities, are failing because the students are not “succeeding” at these institutions or after graduation.My study’s purpose is to investigate, compare, and contrast the experiences of African American former law school students attending less-selective and more-selective law schools. An integral part will be a consideration of their “costs” and “benefits” suggested by the mismatch theorist. This will be a qualitative study, focusing on case studies of approximately 10 African American law school graduates but also including approximately 6 members of faculty and administration. I will conduct in-depth, structured interviews with study participants to gain an understanding of their law school and post-graduation experiences. Thereafter, the interviews will be coded, sorted, and triangulated for validity. Other sources of information will include interviews with faculty, the students’ undergraduate and law school grade point averages, law school aptitude test scores, rankings within their schools, job opportunities, experiences taking the bar examination, and career satisfaction.My primary aim is to provide a rich, contextualized, and nuanced picture of each participant’s law school and post-graduation experiences, so that we may better understand the applicability and accuracy of the mismatch hypothesis.

Have We Come a Long Way, Baby? The Influence of Attorney Gender on Supreme Court Decision Making

While the impact of an attorney's sex has been examined with respect to trial court processes (e.g., jury decision making), no one has previously studied its effects on appellate court decision making. In this article, we argue that the application of gender schemas by some justices results in a devaluing of the arguments made by women litigators. Our findings suggest that women orally arguing attorneys are less likely to receive a favorable vote by a justice than are the male counsel they oppose and that conservative justices are more likely than their liberal counterparts to vote against litigants represented by female counsel at oral argument. This suggests that the ideology of elites influences whether they apply gender schemas in a negative fashion. We also find that justices are more likely to side with female lawyers in women's issues cases, indicating that the justices' perceptions of female lawyer expertise are enhanced in those cases. These findings persist even after controlling for multiple factors, including attorney expertise, the sex of the justice, amicus participation, party capability, and judicial ideology.

The Nature of the Judicial Process

Contradictory decisions by the United States Supreme Court are motivated by the judicial ideology that the United States has unlimited authority. That pleases the court, although contradictory decisions exclude the Rule of Law, elements of which are principled decisions and foreseeable applications of principles, and although unlimited authority is in opposition to the Constitution.Rights are nullified by shifting constitutional boundaries. It used to be that a warrantless arrest had to be based on probable cause. Nowadays, an arrest (called a 'stop') may be based on suspicion. The constitutional right to be free from warrantless arrest absent probable cause was transformed by the Supreme Court into a license to be free to that extent.There was no way to foresee that the Supreme Court was going to adopt the policy that a warrantless arrest absent probable cause is constitutional. Supreme Court justices disregard the Constitution in consequence of the quid pro quo for judicial employment: tending to the needs of the United States. Consistency in decision-making means repeatedly benefiting the United States. Other considerations are secondary. The consequence is a plethora of contradictory decisions.The Supreme Court is a coterie of policy-makers, not a court. Decisions by the Supreme Court murdered the Constitution penned by the Framers. The lifeless parchment was mummified, and is maintained in a latter-day pyramid by the National Archives and Records Administration.What is to be done? Amendment of Article III is required. Four amendments to Article III are suggested. The amendments would generate reestablishment in the United States of constitutional government.

Is the 9th Circuit More Liberal Than Other Circuits?

Is the U.S. Court of Appeals for the Ninth Circuit more liberal than other circuits? This paper looks at three possible definitions of judicial liberalism and tests whether the Ninth Circuit is more liberal, using data from the U.S. Courts of Appeals database and Giles et al. Common Space scores. First, the paper compares overall the proportions of liberal decisions in different circuits and finds that the Ninth Circuit is more liberal than most circuits, but with a fairly low probability. Second, the paper looks at the probabilities that a randomly chosen panel in the Ninth Circuit has a more liberal median than a randomly chosen panel in another circuit. Again, while the Ninth Circuit is likely to be more liberal than most other circuits, the probabilities are fairly low. Third, the paper presents estimation results from a hierarchical Bayesian model that compares the influence of judicial ideology on judicial outcomes in different circuits; it finds that this influence is lowest in the Ninth Circuit. As a result, the paper is not able to explain why the Ninth Circuit is singled out as a particularly ideological circuit.

Should They All Just Get Along? Judicial Ideology, Collegiality, and Appointments to the Supreme Court of Canada

Over the past 25 years, the justices of the Supreme Court of Canada have not exhibited the divergent policy views along party lines that have been characteristic of the justices of the United States Supreme Court. This apparent lack of partisan polarization in Canada may at first give rise to smugness about the appointments process in Canada; after all, our process appears to have successfully sidestepped the politicization associated with the US nomination and confirmation system. However, before any claim that the Canadian appointments process is in fact superior can be made or defended, it is necessary to understand what these findings imply about the judicial decision-making process and quality of adjudication by our Court relative to the US Supreme Court. In this paper we argue that whether the relative nonpartisan nature of the Supreme Court in Canada is advantageous depends on a number of assumptions surrounding the nature of the appointments process, the characteristics of justices who are appointed in each system, and the decision-making processes used by the justices on each Court. This paper discusses the relationship between two potential determinants of a justice's votes: her personal policy preferences and the extent and nature of cooperation between justices on the Court at a given time. To set the context Part II briefly outlines the main findings of some recent empirical research on the judicial voting behaviour on the Supreme Court of Canada and compares it to similar empirical studies of the US Supreme Court. Part III then sets out a framework for analyzing the difference in voting patterns based on the extent to which a judge votes in accordance with her policy preferences and the extent to which the justices of a multi-member court can be characterized as cooperative. Part IV uses this framework to assess the different patterns of voting on the Canadian and US Supreme Courts and discusses the important normative tradeoff between deliberation (positive cooperation) and logrolling (negative cooperation). Finally, Part V briefly discusses the connection of this normative tradeoff to the appointments process, and identifies some additional considerations to guide future theoretical and empirical research.

The Emerging Czech Constitutional Doctrine of European Law

Influence of the Czech accession to the European Union on the judicial ideology of Czech courts – Questions regarding the constitutional status of European Union law in the Czech Republic – Czech Constitutional Court: no testing of so-called necessitated implementing provisions, except when core constitutional values and principles are at stake – Extension of this doctrine to non-Community Union law – An act contrary to Union law is not as such also contrary to the Czech Constitution

Linking Judicial Selection to Consensus

This article focuses on differences in judicial ideology as an explanation of judicial consensus or disagreement in state supreme court decision making. First, state methods of judicial selection (election vs. appointment) are posited to influence the ideological composition of state supreme courts. Second, variations in ideological composition are related to the degree of consensus among judges on cases in the area of capital punishment. Factors other than selection mechanism and judicial ideology are considered as alternative explanations for differences in ideological composition and for the degree of judicial consensus. More broadly, state institutional characteristics, notably judicial selection mechanisms (election or appointment) are found to influence the authoritative presence of state supreme courts.

A Neo-Institutional Explanation of State Supreme Court Responses in Search and Seizure Cases

To better understand the relationship between the U.S. Supreme Court and state supreme courts, we examine how Supreme Court precedent affects state supreme court decision making. Examining state supreme court decisions in search and seizure cases decided by the Supreme Court between 1983 and 1993, we specifically test hypotheses about how state judicial context and Supreme Court behavior influences when the lower court is likely to be affected by Supreme Court precedent. We find that there is substantial variation in the responses to precedent by state supreme courts. We find that precedent has a substantial influence on the behavior of state supreme court justices, but judicial ideology and the level of historical conflict between the Supreme Court and the state supreme court also influence the dissemination of precedent to the states. Most interesting, the effect of judicial retention methods on the application of precedent are considerable.

The Effect of Judicial Ideology in Intellectual Property Cases

This article investigates the relationship between ideology and judicial decision-making in the context of intellectual property. This article empirically establishes that judicial decision making in relation to IP is significantly and predictably shaped by judicial ideology. Using data drawn from Supreme Court intellectual property cases decided in between 1954 and 2006, we show that ideology is a significant determinant of cases involving intellectual property rights. However, our analysis also shows that there are significant differences between intellectual property and other areas of the law with respect to the effect of ideology. This analysis has important implications for the study of intellectual property. It also contributes to the broader judicial ideology literature by demonstrating the effect of ideology in economic cases.

Assessing Preference Change on the US Supreme Court

The foundation upon which accounts of policy-motivated behavior of Supreme Court justices are built consists of assumptions about the policy preferences of the justices. To date, most scholars have assumed that the policy positions of Supreme Court justices remain consistent throughout the course of their careers and most measures of judicial ideology—such as Segal and Cover scores—are time invariant. On its face, this assumption is reasonable; Supreme Court justices serve with life tenure and are typically appointed after serving in other political or judicial roles. However, it is also possible that the worldviews, and thus the policy positions, of justices evolve through the course of their careers. In this article we use a Bayesian dynamic ideal point model to investigate preference change on the US Supreme Court. The model allows for justices' ideal points to change over time in a smooth fashion. We focus our attention on the 16 justices who served for 10 or more terms and completed their service between the 1937 and 2003 terms. The results are striking—14 of these 16 justices exhibit significant preference change. This has profound implications for the use of time-invariant preference measures in applied work.

Decision-Making Under a Norm of Consensus: A Structural Analysis of Three-Judge Panels

This paper estimates a structural model of decision making in judicial panels under a norm of consensus. Using data from asylum and sex discrimination cases in the courts of appeals, the model estimates ideology parameters for individual judges as well as a cost of dissent. I show that a positive cost of dissent for both the majority and the minority is necessary to reconcile the high rate of unanimity with the variation in individual judges' voting records. The parameter estimates of the structural model show that the dissent rate substantially understates the actual level of disagreement within panels and that consensus voting obscures the impact of ideology on case outcomes. A significantly positive cost of dissent for the majority also implies that judges will sometimes compromise to avoid a dissent by another judge, and hence, that case outcomes are not determined purely by majority rule. The methodology developed in this paper can also be used to derive more accurate estimates of judicial ideology that account for the collective nature of judicial decision-making.

Activism, Ideology, and Federalism: Judicial Behavior in Constitutional Challenges Before the Rehnquist Court, 1986–2000

In this study, we evaluate the individual voting behavior of the justices on the Rehnquist Court in cases raising constitutional challenges to federal, state, and local legislation. Using activism, federalism, and ideology as our guiding principles, we evaluate the extent to which the justices' voting behavior is consistent with the conventional wisdom that conservatives are more restraintist and more likely to protect states' rights in conformity with Chief Justice Rehnquist's focus on federalism. Although we find that there is some correlation between judicial ideology and activism, with liberals more activist than conservatives in general, we also find that the conservative wing of the Rehnquist Court is also largely guided by its own ideological reaction to the substantive policy embodied in the laws at issue. Thus, conservative justices as well as liberals are likely to strike down state laws when those laws fail to conform to the ideological preferences. This result underscores the importance of the attitudinal model of judicial behavior as an explanation of voting patterns on the Court, regardless of the justices' rhetoric in favor of judicial restraint or states' rights.

Disagreement on the Rehnquist Court

Scholarship on Supreme Court opinions has tended to focus on outcomes and majority opinions. This research examines the themes of justices' concurrences. The authors first ask what goals are repeatedly pursued in concurrences? The authors suggest that concurrences pursue at least one of the following activities: ground laying, weakening, signaling, or preserving. After establishing this typology of concurring behavior, the authors next ask, under what conditions do justices illustrate these behaviors? The authors code the 547 concurrences written by Rehnquist Court justices between the 1991 and 2001-2002 terms and hypothesize that a number of institutional and attitudinal variables may contribute to variation in concurring behavior. Applying logistic regression, the authors conclude that several factors, most notably citations to previous cases, the number of justices joining the concurrence, judicial ideology, workload, and the extent to which the author joins the majority opinion, are important predictors and correlates of the content of concurrences.

Justice Without Borders: Human Rights Cases in U.S. Courts

In 1980 the Second Circuit Court of Appeals broke with years of legal tradition and ruled that human rights victims could sue their oppressors in federal court—even if the alleged violations occurred outside the country. This court based the extension of its authority on a provision of the 1789 Judiciary Act now referred to as the Alien Tort Claims Act (ATCA). ATCA cases present a unique opportunity to study judicial behavior in the face of separation of powers interests, traditions of judicial restraint, sovereign immunity defenses, and an active internationalist movement to extend human rights guarantees worldwide. Combining legal analysis with quantitative methodology, I find that U.S. federal courts are slowly accepting an internationalist approach to human rights, and that interest groups are largely driving this transformation. Sovereignty concerns and judicial ideology are not conditioning case outcomes, but party resources and separation of powers issues are.

Jurisdiction Stripping: Litigation, Ideology, and Congressional Control of the Courts

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.

Strategic Plaintiffs and Ideological Judges in Telecommunications Litigation

This paper examines the effect of judicial of ideology on the selection and outcome of telecommunications regulatory cases. Using a dataset on Federal Communications Commission orders and trials from 1990 to 1995, this paper shows that changes in the make-up of the bench of the D.C. Circuit Court of Appeals affects not only who wins the cases, but also the cases selected for litigation. Specifically, firms are more likely to bring cases when the agency decisions are ideologically distant from the bench than when the two are actors are close ideologically. Judges, who are subsequently randomly selected, vote ideologically as the firms’ actions predict they will, with Republicans judges overturning Democratic agency decisions and vice versa. The effect of judicial ideology on case selection is much larger than the effect of judicial ideology on case outcomes. Additionally the paper also shows that plaintiff characteristics have little impact in determining case outcomes, but a statistically significant impact on cases selected for litigation. Finally, the paper provides initial results that regulatory uncertainty may lead to more litigation.

Strategic Decision Making in Federal District Courts: Evidence from Securities Fraud Actions

Scholars employing the tools of public choice theory hypothesize that judges are strategic actors whose decisions, while goal oriented, are influenced by the anticipated reactions of other political actors and by their institutional settings. Critics argue, however, that attempts to find empirical evidence of strategic decision making at the U.S. Supreme Court or Courts of Appeals have been spectacularly unsuccessful. This paper expands the search for strategic decision making by looking at federal district court decisions, specifically interpretations of the higher pleading standard contained in the Private Securities Litigation Reform Act of 1995. Initial interpretations of the Act articulated polar liberal and conservative positions. The evidence compiled here supports the hypothesis that the later emergence of an intermediate approach was the result of strategic decision making, rather than simply judges acting consistently with their strict ideological preferences. Using a much more nuanced measure of judicial ideology than previously employed in the legal literature, the article finds that liberal and conservative judges sitting in ideologically dissimilar circuits were significantly more likely to adopt the intermediate standard than other judges. There is also evidence that the likelihood of strategic decision making is a function of the likelihood of appeal and reversal and that changes in reversal rates had the largest influence on moderate judges. While there is some evidence that horizontal precedents also influenced the decision, those correlations are generally weaker than for strategic variables and are not consistently significant across model specifications.

Strategic Plaintiffs and Ideological Judges in Telecommunications Litigation

This paper examines the effect of judicial ideology on the selection and outcome of telecommunications regulatory cases. Using a dataset on Federal Communications Commission orders and trials from 1990 to 1995, this paper shows that changes in the make-up of the bench of the D.C. Circuit Court of Appeals affects not only who wins the cases, but also the cases selected for litigation. Firms are more likely to bring cases when the agency decisions are ideologically distant from the bench than when the two actors are ideologically close. Randomly selected judges vote ideologically as the firms' actions predict the will, with Republicans judges overturning Democratic agency decisions and vice versa. The effect of judicial ideology on case selection is larger than the effect of judicial ideology on case outcomes. Finally, the paper provides initial evidence that regulatory uncertainty may lead to more litigation.

Towards an enabling research agenda for the accounting/contracting nexus

Although it shares many similar concerns with the critical accounting project, the socio-legal approach has been neglected in the accounting literature. Drawing on the socio-legal literature, the paper argues that the law-and-economics model of contract ignores the diversity of judicial ideologies as well as failing to explain empirical evidence on the opportunistic use or non-use of contract in business relations. Presenting a summary of the complex linkages between accounting and contract, the paper demonstrates the possibilities of a shared enabling and emancipatory research agenda for the accounting/contracting nexus. Given that practitioners who promote strategic alliances and partnerships have already embraced much of the rhetoric of the relational contract, the paper argues for more empirical studies that examine whether the longer-term outcomes have delivered the proclaimed benefits.