1.. HARD CASES 5. Legal Rights A. Legislation . . . We might therefore do well to consider how a philosophical judge might develop, in appropriate cases, theories of what legislative purpose and legal principles require. We shall find that he would construct these theories in the same manner as a philosophical referee would construct the character of a game. I have invented, for this purpose, a lawyer of superhuman skill, learning, patience and acumen, whom I shall call Hercules. I suppose that Hercules is a judge in some representative American jurisdiction. I assume that he accepts the main uncontroversial constitutive and regulative rules of the law in his jurisdiction. He accepts, that is, that statutes have the general power to create and extinguish legal rights, and that judges have the general duty to follow earlier decisions of their court or higher courts whose rationale, as l

Taking Rights Seriously

https://www.jstor.org/stable/10.1111/j.0022-3816.2004.00301.x

The Supreme Court and the Attitudinal Model Revisited

Empirically oriented scholars often struggle with how to measure preferences across time and institutional contexts. This article characterizes these difficulties and provides a measurement approach that incorporates information that bridges time and institutions in a Bayesian Markov Chain Monte Carlo approach to ideal point measurement. The resulting preference estimates for presidents, senators, representatives, and Supreme Court justices are comparable across time and institutions. These estimates are useful in a variety of important research projects, including research on statutory interpretation, executive influence on the Supreme Court, and Senate influence on court appointments.

Comparable Preference Estimates across Time and Institutions for the Court, Congress, and Presidency

The actual impact of judicial decisions often depends on the behavior of executive and legislative bodies that implement the rulings Consequently, when a court hears a case involving the interests of those controlling the executive and legislative institutions, those interests can threaten to obstruct the court's intended outcome In this paper, we evaluate whether and to what extent such constraints shape judicial rulings Specifically, we examine how threats of noncompliance and legislative override influence decisions by the European Court of Justice (ECJ) Based on a statistical analysis of a novel dataset of ECJ rulings, we find that the preferences of member-state governments—whose interests are central to threats of noncompliance and override—have a systematic and substantively important impact on ECJ decisions

/pdf/judicial-behavior-under-political-constraints-evidence-from-5an54973rf.pdf

Judicial Behavior under Political Constraints: Evidence from the European Court of Justice

AmajorfocusofjudicialpoliticsresearchhasbeentheextenttowhichideologicaldivergencebetweentheCourtandCongress can explain variation in Supreme Court decision making. However, conflicting theoretical and empirical findings have given rise to a significant discrepancy in the scholarship. Building on evidence from interviews with Supreme Court justices and former law clerks, I develop a formal model of judicial-congressional relations that incorporates judicial preferences for institutional legitimacy and the role of public opinion in congressional hostility towards the Supreme Court. An original dataset identifying all Court-curbing legislation proposed between 1877 and 2006 is then used to assess the influence of congressional hostility on the Court’s use of judicial review. The evidence indicates that public discontent with the Court, as mediated through congressional hostility, creates an incentive for the Court to exercise self-restraint. When Congress is hostile,theCourtusesjudicialreviewtoinvalidateActsofCongresslessfrequentlythanwhenCongressisnothostiletowards the Court. D uring each of the two recent Supreme Court confirmation hearings in the United States Senate, the Judiciary Committee noted its concern with what it perceived to be an overly aggressive Supreme Court and an imbalance in the separation of powers. Chairman Arlen Specter opened the confirmation hearings of John Roberts by commenting, “I’m very much concerned about what I conceive to be an imbalance in the separation-of-powers between the Congress and the court.IamconcernedaboutwhatIbluntlysayisthedenigration by the court of congressional authority.” 1 Senator Specter’s comments highlight a claim about American democracy which has been at the center of a lively academic debate for decades: the Supreme Court is an insulated legal body, free to make decisions away from the political pressures of Congress and the Executive. In this article, I challenge that claim. First, relying on evidence from interviews with Supreme Court justices and former law clerks, I establish a set of assumptions about judicial preferences that departs from previ

The Separation of Powers, Court Curbing, and Judicial Legitimacy

To date, no study has found evidence that the U.S. Supreme Court is constrained by Congress in its constitutional decisions. We addressed the selection bias inherent in previous studies with a statute-centered, rather than a case-centered, analysis, following all congressional laws enacted between 1987 and 2000. We uncovered considerable congressional constraint in the Court's constitutional rulings. In particular, we found that the probability that the Rehnquist Court would strike a liberal congressional law rose between 47% and 288% as a result of the 1994 congressional elections, depending on the legislative model used.

Pulling Punches: Congressional Constraints on the Supreme Court's Constitutional Rulings, 1987-2000

Conventional arguments identify either the median justice or the opinion author as the most influential justices in shaping the content of Supreme Court opinions. We develop a model of judicial decision making that suggests that opinions are likely to reflect the views of the median justice in the majority coalition. This result derives from two features of judicial decision making that have received little attention in previous models. The first is that in deciding a case, justices must resolve a concrete dispute, and that they may have preferences over which party wins the specific case confronting them. The second is that justices who are dissatisfied with an opinion are free to write concurrences (and dissents). We demonstrate that both features undermine the bargaining power of the Court's median and shift influence towards the coalition median. An empirical analysis of concurrence behavior provides significant support for the model.

/pdf/who-controls-the-content-of-supreme-court-opinions-4cv3ayq0ax.pdf

Who Controls the Content of Supreme Court Opinions

Pulling Punches: Congressional Constraints on the Supreme Court’s Constitutional Rulings, 1987–2000

Existing studies of congressional influence on Supreme Court decision making have largely failed to recognize the fact that the Court has a discretionary docket. We model the effects of congressional preferences on the certiorari decision and find strong evidence that the Court’s constitutional agenda is systematically influenced by Congress. The Court’s docket is significantly less likely to contain cases wherein there are large congressionally induced deviations between whattheCourtwould like to do, and what it can do in its final rulings. This selection bias in the Court’s docket can lead to considerable uncertainty in estimating the effects of congressional constraint on the Court’s final decisions, including a failure to properly reject the null hypothesis of no constraint.

https://www.jstor.org/stable/10.1017/S0022381609090471

Ducking Trouble: Congressionally Induced Selection Bias in the Supreme Court's Agenda

One of the longstanding questions that bedevils scholars in several disciplines is how judicial power gains traction. What, in particular, explains judicial supremacy? Theories abound, but each is lacking in some way. By looking at the answer to this question in the context of the Supreme Court of the United States, we demonstrate the vital role a federal system can play in both the rise and maintenance of judicial supremacy. In a unitary (nonfederal) system, a judiciary possessing the power of judicial review may well find itself frequently at odds with - and rarely helpful to - the governing regime. In contrast, in a federal system, the judiciary can provide vital support to the central government in suppressing outlier conduct. This “vertical” supremacy - the supremacy of the Supreme Court over state and local governments - ultimately transforms itself into “horizontal” supremacy - the binding effect of judicial pronouncements over the coordinate branches of the national government. This project is theoretical and historical both: it identifies the mechanisms for the transformation from vertical to horizontal supremacy, and recounts how this occurred in the United States.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1926789_code419245.pdf?abstractid=1926789&mirid=5

Barry Friedman

Papers

Pulling Punches: Congressional Constraints on the Supreme Court's Constitutional Rulings, 1987-2000

Who Controls the Content of Supreme Court Opinions

Pulling Punches: Congressional Constraints on the Supreme Court’s Constitutional Rulings, 1987–2000

Ducking Trouble: Congressionally Induced Selection Bias in the Supreme Court's Agenda

Becoming Supreme: The Federal Foundation of Judicial Supremacy