State Supreme Court Justices Research Articles

Judicial Elections and Opinion Quality in State Supreme Courts

We contribute to the literature on judicial independence and performance in the states by analyzing opinion clarity. Written opinions are the primary means of communication for state supreme court justices, and clarity is a core component of judicial performance. Using automated text analysis on a sample of state supreme court opinions from all fifty states, we find that variation in judicial retention systems is not associated with substantively meaningful differences in opinion clarity. Furthermore, elected judges do not seem to produce clearer opinions in salient cases notwithstanding the increased public visibility of those decisions. These results suggest that judges tend to conform to prevailing professional norms despite differing institutional constraints.

Does Accountability Vary? Institutional Effects on the Careers of State Supreme Court Justices

Do diverse selection and retention systems influence the careers of state supreme court justices? We contend a direct connection exists between risk of removal from the bench and accountability, as institutional mechanisms present varying but predictable degrees of risk to justices. Using event history modeling, we analyze the duration of judicial tenures and resultant levels of accountability provided by selection methods. We demonstrate that justices in partisan elections have the shortest tenures and greatest risk of departure. By contrast, the Missouri Plan proved the least accountable system, offering a trivial amount of risk to justices. By proffering novel insight into judicial careers, our study enhances the judicial elections literature, while our findings diverge from rhetorical assertions of judicial reform groups maintaining that the Missouri Plan affords sufficient accountability. We thus show that judicial careers and accountability are a function of the institutional design of selection and retention systems.

Jacob v Shultz-Jacob, 923 A 2d 473, 2007 Pa Super Lexis 957 (Pa Super 2007)

THREE PARENTS?United States Supreme Court Justice Antonin Scalia once famously opined that, “. . . law, like nature itself, makes no provision for dual fatherhood.” Of course, we know that many children today are being raised in households where their primary paternal figure is a stepfather, and their natural father, who is their legal father, may or may not exercise some quantum of visitation/access.2 Moreover, many American jurisdictions today allow same-sex couples to adopt, so that a child has either two mothers or two fathers.3 But the situation which Justice Scalia was addressing involved a child whose mother was married at the time of conception, who apparently was the product of her mother’s affair with another man, and where the mother’s husband had forgiven all and accepted the child as his own.4 Justice Scalia could not imagine that the law, or nature, would permit a child to have three parents, in that case a mother and two fathers. Indeed, in the typical same-sex adoption case, either there is no known father because one of the lesbian partners was inseminated by an anonymous donor,5 or a known donor has agreed to terminate his parental rights.6 In either of those scenarios, a child ends up with the normal number of parents: two.

State Supreme Court Ideology and 'New Style' Judicial Campaigns

We introduce a new method to measure the ideology of state supreme court justices using campaign finance records. In addition to recovering ideal point estimates for both incumbent and challenger candidates, the method's unified estimation framework recovers judicial ideal points in a common ideological space with a diverse set of candidates for state and federal office, thus facilitating comparisons across states and institutions. We use these measures to study the relationship between judicial selection methods and the quality of ideological representation in the state courts. We find that judicial elections can lead to more representative courts but that the beneficial effects are negated by policies intended to promote judicial impartiality by limiting the politicizing effects of partisan affiliation and campaign speech. We provide a direct test of this claim by exploiting the U.S. Supreme Court ruling in Republican Party of Minnesota v. White as a natural experiment.

All the Rage: Clarence Thomas, Paternal Authority, and Conservative Desire

Clarence Thomas is, according to The Weekly Standard, the “leading conservative in America today.” More than just an iconic conservative, The National Review esteems Thomas as “an extraordinary man.” How are we to understand the ascent of a sitting United States Supreme Court Justice to the status of national hero in the American conservative imagination? And what does Clarence Thomas’s hero-status reveal about that conservative imagination? I argue, first, that the canonization of Clarence Thomas by American conservative intellectuals speaks to, and revives, long-standing motifs in the American political tradition: rage at, and rejection of, maternal, feminine influence; an associated longing for stable, paternal authority and the self-disciplined, autonomous citizenship that it is believed to produce; and the promotion of law as the primary means by which to achieve social order and to repress the chaos conventionally associated with the maternal realm. Second, I argue that Thomas’s political vision and, especially, his jurisprudential philosophy – which emphasizes a Judge’s responsibility to abdicate individual judgment in the name of fidelity to the desires of the Founding Fathers – reveals an ironic ambiguity at the heart of the conservative political imagination. Indeed, fixation with the paternal authority of law leads modern conservatives, as it does Clarence Thomas, to impose a series of limitations on the individual autonomy that they claim is the fruit of overcoming feminine, maternal influence. The manifold obsessions voiced by Clarence Thomas and his conservative intellectual champions – obsessions with fathers, with mothers, and with law – thus point to a limited citizenship that is at odds with conservatism’s own dreams of mature autonomy.

Prayer Utterances as Aligning Actions

Social actors use prayer utterances (e.g., statements such as “prayed over,”“prayed about,” or “spent time in prayer”) as aligning actions that justify problematic or questionable courses of action and prevent possible negative characterizations. The prayer utterance functions as an aligning action in American society because of Americans’ beliefs and actions concerning the efficacy of prayer in solving problems and because prayer is viewed as a sign of personal morality and trustworthiness. Three examples of individuals who use the prayer utterance as an aligning action serve as illustrations of this argument (Oprah Winfrey, Alabama State Supreme Court Justice Sue Bell Cobb, and President Barack Obama). Scholars should investigate the uses and functions of prayer utterances in social life and should also investigate the possible uses of other religious talk as aligning actions.

Oliver Wendell Holmes, Sr. (1809–1894): Physician, jurist, poet, inventor, pioneer, and anatomist

Oliver Wendell Holmes, Sr. was a physician, dean of the Harvard Medical School, one of the best regarded American poets of the 19th century, father of a future United States Supreme Court Justice, inventor and - unknown to many - an anatomist. His friends included Ralph Waldo Emerson, Henry Wadsworth Longfellow, and Louis Pasteur. He trained with some of the most influential anatomists/surgeons of his day including Lisfranc, Larrey, Velpeau, Bigelow, and Dupuytren. As a teacher of anatomy, he had strong feelings regarding medical curricular reform and to some, was considered one of the best lecturers in the discipline. As dean, he pioneered social reform by admitting both white women and free black men to Harvard Medical School. He coined the term "anesthesia," was the first American to introduce microscopy to a medical curriculum, and made important contributions to the understanding of the spread of infectious disease. Herein, we review the life of this influential American academic and focus on his contributions to the field of anatomy.

Diversifying State Supreme Courts

Why do some states diversify their supreme courts sooner than others? Using original data on the first black and female state supreme court justices, I contend that political and institutional pressures influence when states diversify their high courts. The results suggest that selection systems, institutions affecting turnover, and the appointment of political minorities to the United States Supreme Court are associated with states seating their first black and female justices. The findings have implications for our understanding of the political and institutional circumstances that promote judicial diversity.

Post-Columbine: Juvenile Offenders and the State Supreme Courts

Recent research finds elected state court justices are constrained from implementing policy preferences by electoral necessity; however, the research lacks a consideration of how judges' perceptions of issue salience might also restrict judicial voting choice. I examine the voting behavior of state supreme court justices in cases where juveniles are tried as adults decided before and after the Columbine incident and find elected justices show an increase in conservative voting after Columbine. The results suggest that the ability of retention methods to structure judicial behavior is partially a function of issue salience.

Lightning Rod Scalawag: The Unlikely Political Career of Thomas Minott Peters

Lightning Rod Scalawag: The Unlikely Political Career of Thomas Minott Peters One of the state Supreme Court justices who became a lightning rod for the political and legal issues of the Reconstruction period , Thomas Minott Peters, presided over the court for only one year (1873–1874) and yet became one of the most hated jurists in Alabama history.1 A notorious scalawag, Peters was routinely vilified in the press for both his “Radical Republican” politics and his decisions that denied the right of secession as a basis for Alabama statute. The events of one hot summer evening in 1878 may help us begin to understand the source of Peters’s unpopularity. On Saturday July 13 Peters delivered a stirring speech at a meeting of Lawrence County’s “colored” Republican convention at Mountain Home. The meeting was observed by a reporter from a Democratic paper with a long record of keeping track of one of the state’s most notorious scalawags. The Moulton Advertiser’s reporter, “Eye-Witness,” paraphrased Peters’s talk to raise the alarm one more time: He made a black republican speech and told them that he was a radical and intended to do a great many radical tricks before he died. He dwelt at length upon Paul Horton Paul Horton teaches history at the University of Chicago Laboratory Schools. He is indebted to Robert H. McClain Jr., a direct descendant of Thomas M. Peters, for sharing e-mail correspondence and much of his family research. The author would like to thank Colin Rennert-May, Amy Smith-Horton, Mike Fitzgerald, Ed Ayers, Eric Foner, Ed Bridges, and the most kind editors and readers of the Alabama Review for their encouragement and assistance on drafts of this article. 1 Peters plays a pivotal role in two books that are based on oral histories of Unionist northwest Alabama: Donald Dodd and Wynelle S. Dodd, Winston: An Antebellum and Civil War History of a Hill County of North Alabama (Jasper, 1972), 78–123; and Wesley S. Thompson, The Free State of Winston: A History of Winston County, Alabama (Winfield, 1968). According to one local historian, tradition has it that Peters’s library and papers were dumped in a ditch near his home after his house was sold. April 2011 117 the 13th, 14th, and 15th Amendments and said that the 16th Amendment would be the right of suffrage to women. The colored ladies . . . whose modesty he extolled, he said would vote. Seeming to admit, that white ladies would shrink from mingling with a crowd of negroes at the polls. A good Democrat, Eye-Witness had difficulty maintaining even feigned objectivity: “And here the unnatural monster seemed to gloat over the idea of defeating us with women votes, and forever fastening upon the white people of the South the radical yoke.” Peters spoke with “touching pathos” about civil rights and compared civil rights legislation to the “Lord’s prayer.” When “he spoke of Fort Pillow,” where hundreds of African American Federal soldiers from the First Regiment Alabama Siege Artillery had been massacred by troops under the command of Nathan Bedford Forrest in 1864, “his remarks were enough to have raised a riot.” Although other African American and white Republicans made credible speeches that day, “none seemed to sanction the demon-like violence of judge Peters.”2 In the minds of Eye-Witness and his Democratic readers, Peters’s threatening rhetoric had to be self-serving. He would compromise all political principles to seek and maintain power. From this perspective the former Unionist was the worst sort of opportunist who betrayed his friends, country, and social class to become Alabama’s highestranking judge. In the words of Bourbon historian John Witherspoon Dubose, “he always avowed intense Union sentiments. He fell into the ranks of the scalawags without a jolt. His attainments as a lawyer were mediocre, insufficient to justify his promotion. When the invading enemy came into the counties along the Tennessee River, he went into their lines to stay, and his conduct naturally increased his claims upon the recognition of the carpetbag element.” Similarly William Garrett, writing in 1872, attributes Peters’s rise to the state supreme court to opportunism: “He was...

Detecting multiple authorship of United States Supreme Court legal decisions using function words

This paper uses statistical analysis of function words used in legal judgments written by United States Supreme Court justices, to determine which justices have the most variable writing style (which may indicated greater reliance on their law clerks when writing opinions), and also the extent to which different justices' writing styles are distinguishable from each other.

Case Visibility and the Electoral Connection in State Supreme Courts

Critics traditionally portray state Supreme Court elections as low-information events that fail to accomplish the stated goal of engendering accountability to the public. Recent changes in the intensity of contestable judicial elections have led scholars to consider the effect of public opinion on state court decision making. We delineate necessary conditions for judicial responsiveness to public opinion, integrating research on state court decision making with the broader literature on representation. We then empirically test our framework for judicial responsiveness. Our findings suggest that the strength of the electoral connection between state supreme court justices and their constituents is quite dependent on method of judicial retention and the visibility of the case.

A Casebook for the Dean’s Reading List: Holland, McAllister, Shaman & Sutton, State Constitutional Law: The Modern Experience

Perhaps this Article will prompt you to obtain a professor’s review copy of its subject—the new casebook, State Constitutional Law: The Modern Experience—and present it to the dean or academic dean of your law college. If you share my distress about the comparative silence of law schools and bar examiners in response to the contemporary callings to teach and test state constitutional law, consider also attaching a copy of co-author and Sixth Circuit Judge Jeffrey S. Sutton’s article, Why Teach—and Why Study—State Constitutional Law, or flagging retired Delaware Supreme Court Chief Justice E. Norman Veasey’s Foreword to The Modern Experience, which culminates in a reprint of the July 2010 Conference of Chief Justices Resolution regarding State Constitutional Law Courses. For too long, the American legal educational system has ignored the importance of state constitutions to our legal and political systems. Scholarly commentary from United States Supreme Court Justice William J. Brennan Jr. and Oregon Supreme Court Justice Hans A. Linde in the late 1970s and early 1980s raised attention to the dormancy of state constitutional law and seemingly led to the development of the first and, until now, only employed casebook on the subject. Although that

'The Arrogance of Certainty': Trust, Confidentiality, and the Supreme Court

This article reviews Edward P. Lazarus, Closed Chambers (Time Books 1998). In Closed Chambers, Lazarus recounts stories from his term as a Supreme Court law clerk from the perspectives of what he calls a “journalist-historian” as well as a “participant” and an “eyewitness.’” But it is precisely because Lazarus was a participant and an eyewitness to a number of the events in his book that it is improper for him to act as a “journalist-historian.” As a former law clerk to a United States Supreme Court Justice, Lazarus owes duties to his Justice and to the institution itself. One of those duties is to maintain the Court's confidences. Writing a book about the cases decided during one's time at the Court, as Lazarus has done, constitutes a profound breach of the obligations of a former clerk.

Special Interests and Institutional Change in State Supreme Courts

In this paper, I argue that variation in the methods across states for selecting state supreme court justices is best understood as an equilibrium reflecting efficiency considerations by special interest groups for achieving favorable rulings in state courts. I develop a simple model showing how an interest group's expectations about the ideological preferences of a state's officials and electorate can prompt the group to campaign to change the selection method in that state. The key result of the model shows that a loss of agency between elector and elected can benefit special interests, such that interest groups, depending on their ideological preferences, may have an incentive to exploit this agency loss by changing court selection methods. Using a novel dataset of bills introduced in state legislatures, I find support for this proposition. I argue that these findings suggest, in contrast to assertions by reformers, that appointive selection systems are just as susceptible to interest group influence as are elective systems.

Geography and the Spatial Diffusion of Miranda v. Arizona in State Supreme Courts

Diffusion studies are common in political science. Scholars have long believed that geography (or the regional effect) is one dimension of diffusion. However, the strength of the regional effect often varies among cases and has yielded inconsistent results. We employ a social learning model to examine the role of geography in the diffusion of Supreme Court precedent in state supreme courts. Previous studies of lottery diffusion demonstrate that geographic proximity to states with lotteries leads to adoption of lotteries by states. Similarly, research on citation patterns among state courts shows that states tend to cite states geographically proximate to them, as well as those who serve as precedent ‘leaders.’ State supreme court justices may learn about the applicability of Supreme Court precedent by referencing the decisions of the high courts in neighboring states. By paying attention to the decisions of their neighboring courts, state supreme court justices may reduce the uncertainty associated with the precedent, which in turn will increase the likelihood of adherence. We make use of graphical information systems (GIS) and estimate a multivariate model to better understand the diffusion of Miranda v. Arizona in state supreme courts. We find that both the ideological distance between state supreme courts and the geographic proximity of states influences the likelihood of adoption.

Congressional Constraints and Tactical Supreme Court Maneuvers: Calling for the Views of the United States Solicitor General

Do United States Supreme Court justices invoke the aid of executive branch officials to help them overcome congressional constraints? We examine archival data collected from the private papers of former Justice Harry A. Blackmun to analyze the conditions under which Supreme Court justices force the Solicitor General to participate in cases. We find that in addition to legal considerations, justices invite the SG to participate in cases so as to gain information that will aid them in determining whether the president will use his veto to protect the Court's decision against congressional override attempts. Justices are between 44% and 56% more likely to invite the SG when they require the president's veto to protect their decisions. These results hold across a host of alternative models of legislative decision making and other various modeling specifications.

Does Seniority Matter? The Conditional Influence of State Methods of Judicial Retention

Objective. Capitalizing on attention directed to judicial agreement and the associated consequences of judicial elections, this article conducts an examination of the effects of seniority and state methods of judicial retention on decisions by state supreme court justices to dissent. Methods. Using data drawn from the State Supreme Court Data Archive, this research analyzes decisions by individual justices to dissent in 33,582 tort cases from 1995 to 1998. GEE logistic analysis with cases as the clustering unit is the estimation procedure. Results. While the seniority of justices is positively connected to dissent, the findings illustrate that seniority's effect is nuanced and conditioned by a state's method of judicial retention. The impact of a justice's seniority relative to his or her colleagues is most powerful in appointive courts where justices serve without fear of electoral retaliation. Alternatively, within elective courts, justices respond to elections by pursuing a consensual approach regardless of their seniority. Conclusion. The dissent characteristics of justices in state supreme courts are intricately tied to the length of careers and the methods by which states keep justices in office.

Do United States Supreme Court Justices Write Less Frequently as They Age?

Proponents of eliminating life tenure for United States Supreme Court justices often contend that the status quo encourages justices to cling to their positions long after their productivity and overall capability have declined. In this account, the tendency of justices to overstay their welcome results from a combination of the Court’s shrinking docket, availability of law clerks to assume the burden of case selection and to aid in drafting opinions, and the unwillingness to let one’s political opponents fill one’s seat. But do justices actually become less productive as they age? This study examines one particular manifestation of productivity that rests fully within the control of individual justices: the propensity for writing separate opinions. Using data from the Burger and Rehnquist Courts, it finds, on balance, that while older justices do experience a decline in their authorship of concurrences and dissents, this decline is small relative to other factors influencing the propensity to write, such as justices’ ideological location on the Court and case-specific considerations.

Do Partisan Elections of Judges Produce Unequal Justice? When Courts Review Employment Arbitrations

Partisan election of judges is a growing concern as large contributions pour into judicial elections. State judges raised $157 million for their campaign funds from 1999 to 2006. Caperton v. A.T. Massey Co. Inc., 129 S.Ct. 2252 (2009), ruled that a state supreme court justice who cast the deciding vote for a company whose president contributed $2.3 million to his campaign violated the losing company’s due process rights.I examine whether partisan judicial elections affect court review of arbitrator rulings (called awards) in employment disputes. For this study, I added a new variable – method for selecting judges – to my database of 223 state court rulings from 1975-2008.I relate this empirical research to a strategic model of corporate avoidance of liability in employment disputes. Some employers avoid lawsuits by requiring employment arbitration, and implementing favorable arbitration rules. When awards are appealed to court, employers continue to influence the outcome by designating the court for reviewing an award. This model suggests that some employers would expand their influence by strategically supporting judges who run for office in political campaigns.I found that in state trial courts where an award was challenged, employees won only 32.1% of cases before party-affiliated judges. But in states where judges were appointed or elected in non-partisan races, employees prevailed in 52.7% of the cases.The partisan election effect was not observed, however, in appellate cases. Employees won 43.2% of cases before party-affiliated judges, and 50.0% of cases before judges who were appointed or elected in non-partisan races.My results provide preliminary and limited support for the concern that partisan judicial elections produce unequal justice for ordinary people who are not large campaign donors. But, there are important caveats. This study did not determine whether judges in these cases actually accepted campaign support from employer groups. These judges may have ruled through a more ideological prism than appointed and non-partisan judges.In the same vein, the finding of no partisan effect at the appellate level is not conclusive – and does not mean that party-affiliated appellate judges are as neutral as their appointed counterparts. Even in partisan judicial elections, it appears that only some appellate candidates raise war chests and declare campaign positions. A seemingly biased judge, such as the justice in Caperton, can be outvoted by more neutral judges on the appellate panel, thereby muffling the effect of campaign spending in partisan elections.My findings do not prove that employers seek venue before judges who receive their campaign contributions, but they offer preliminary statistical evidence that suggests that this is possible. The fact that employers can designate venue in an arbitration contract reinforces this possibility. In sum, the shocking example in Caperton, along with the preliminary data in my study, suggests that employers are able to expand the liability-avoidance model by donating to judges who would review their arbitration awards.