Journal Article•
Judicial Choice and the Politics of Abortion: Institutions, Context, and the Autonomy of Courts
TL;DR: In this article, the authors explore fundamental questions about the nature of inter-institutional conflict by examining all cases decided since Roe v Wade by state supreme courts in which direct challenges to state statutes regulating abortion services were raised.
Abstract: The power of courts to thwart the will of the popularly elected branches of government and to stand in direct contradistinction to the dominant political alliance has fascinated scholars of American politics since the nation's inception Although courts have been idealized as barriers to majority tyranny because of their seeming willingness to confront legislative majorities through the power of judicial review, serious questions have been raised about the actual nature of courts' countermajoritarian function and, in particular, the conditions under which courts are willing to challenge legislative majorities When are courts likely to take on legislatures in the game of separation of powers/checks and balances? Or, stated more broadly, to what extent are courts autonomous institutions whose functions are impervious to conditions in the external political environment? After all, the countermajoritarian function and the autonomy of courts are hampered if courts, or the individual judges casting votes in the cases, fear legislative sanctions and defer to legislative preferences to avoid them This Article seeks to explore fundamental questions about the nature of inter-institutional conflict by examining all cases decided since Roe v Wade(1) by state supreme courts in which direct challenges to state statutes regulating abortion services were raised As institutions with a diversity guaranteed by jurisdiction, state supreme courts are subject to virtually every force likely to affect judicial choice(2) Consequently, they offer an ideal laboratory for testing relevant contextual hypotheses Similarly, the abortion issue provides a manageable, yet highly charged, specimen with which we can conduct our analysis(3) In response to concerns about the basis of inter-institutional conflict with the courts, two different conceptualizations of courts as institutions have emerged in the scholarly literature based on studies of the United States Supreme Court(4) First, scholars working within the framework of attitudinal theory have posited that the Supreme Court is a highly autonomous institution whose decisions essentially reflect the aggregation of preferences of its members(5) Because various institutional arrangements (eg, lifetime tenure) insulate the Court from sanctions, the Supreme Court lacks incentives to respond to forces in the external environment, including Congress, except on the rarest of occasions(6) Given the highly insular nature of the Court, individual justices are free to cast votes in accordance with their preferences on issues of public policy(7) Therefore, the Supreme Court only overturns statutes under conditions where the preferences of the Court majority and Congress merely conflict, without reference to exogenous factors(8) Alternatively, scholars working within the rational choice framework have offered another conceptualization of the relationship between the Supreme Court and Congress that poses a serious challenge to the widely accepted principle of judicial autonomy and purely attitudinal voting(9) Positive theorists have argued that even when preferences conflict, the Supreme Court frequently will acquiesce to the legislative majority when the Court anticipates some possible reprisal or sanction for its actions(10) One particularly important reprisal is subsequent statutory revision Stated differently, positive theorists model the preferences of Congress as a significant constraint on judicial choice in the nation's highest court, and the power of Congress as a limit on the autonomy of the Supreme Court(11) While these two alternative perspectives on the status of the United States Supreme Court will continue to be debated as new evidence is brought to bear on the issue, some very recent research raises serious doubts about the utility of models derived from positive theory for explaining the Supreme Court's interaction with Congress(12) In a highly thought-provoking paper, Jeffrey Segal presents a convincing case that assumptions about the insularity of courts are theoretically sound and empirically correct for the Supreme Court, even in matters of statutory interpretation …
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TL;DR: This paper analyzed the electoral fortunes of incumbents on the US supreme court from 1980 through 1995 in the 38 states using elections to staff the bench and found that partisan elections fail to evidence accountability, while nonpartisan and retention elections promote independence.
Abstract: I address the controversy over how judges should be selected by analyzing the electoral fortunes of incumbents on supreme courts from 1980 through 1995 in the 38 states using elections to staff the bench Court reformers argue that partisan elections fail to evidence accountability, while nonpartisan and retention elections promote independence Thus, issue-related or candidate-related forces should not be important in partisan elections, and external political conditions should not be important in nonpartisan and retention elections Results indicate that reformers underestimated the extent to which partisan elections have a tangible substantive component and overestimated the extent to which nonpartisan and retention races are insulated from partisan politics and other contextual forces On these two fundamental issues, arguments of reformers fail Moreover, the extraordinary variations across systems and over time in how well incumbents fare with voters, which bear directly upon the representative nature of elected courts, merit further explanation
230 citations
TL;DR: This article developed a contextually based, party-adjusted surrogate judge ideology measure (PAJID) and subject this measure to an extensive array of validity tests, and showed that PAJID offers a valid, stable measure of judge preferences in state supreme courts that is demonstrably superior to party affiliation in analyses of judicial decision-making.
Abstract: The premise of this paper is that while the comparative study of courts can address some vitally important questions in judicial politics, these gains will not be secured without a valid and reliable measure of judge preferences that is comparable within and across courts. Party affiliation of judges is a commonly used but weak substitute that suffers from pronounced equivalence problems. We develop a contextually based, party-adjusted surrogate judge ideology measure (PAJID) and subject this measure to an extensive array of validity tests. We also consider the measure's stability in predicting judge behavior over the course of the judicial career. As the results illustrate, PAJID offers a valid, stable measure of judge preferences in state supreme courts that is demonstrably superior to party affiliation in analyses of judicial decision-making across areas of law and across 52 state high courts.
210 citations
TL;DR: This article found that experience with courts, perceptions regarding the fairness of court procedures, and choices made over institutional design all play a role in explaining the public's support for state courts, and that support for lower courts is integral to a democracy and support for courts essential to the operation of the rule of law.
Abstract: While studies of public confidence in institutions have long been a part of the public opinion literature, systematic analysis of public confidence in America's lower courts has been missing. This is troubling, especially since support for the rule of law is integral to a democracy and support for courts essential to the operation of the rule of law. I offer an explanation of public support for lower courts, finding that experience with courts, perceptions regarding the fairness of court procedures, and choices made over institutional design all play a role in explaining the public's support for state courts.
165 citations
TL;DR: In this article, the authors investigate the strategic revolution in the field of judicial politics and provide an intellectual history of the field, with special emphasis on why judicial specialists resisted strategic analysis for so long and why they are now turning to it in ever increasing numbers.
Abstract: As papers presented at recent disciplinary conferences and articles published in major political science journals reveal, the field of judicial politics is undergoing a sea change. Variants of the social-psychological paradigm, which have long dominated thinking about law and courts, are giving way to approaches grounded in assumptions in rationality. More to the point, ever-growing numbers of scholars are now invoking the strategic account to understand judicial politics. In what follows, we investigate this "strategic revolution." We begin by providing an intellectual history of the field, with special emphasis on why judicial specialists resisted strategic analysis for so long and why they are now (re)turning to it in ever-increasing numbers. Next, we consider the ways that analysts have begun to put the strategic account to work. This is an important task, for debates are already emerging over the "best" way to invoke the account to study judicial politics. We take the position that there is no one "right" way but rather four different approaches--all of which have the potential to provide us with important insights into law and courts.
150 citations
TL;DR: In this article, the Cox model is used to deal with repeatable and competing events, events that the logit-probit approach cannot be used to model, which is often preferable.
Abstract: Since 1990, the standard statistical approach for studying state policy adoption has been an event history analysis using binary link models, such as logit or probit. In this article, we evaluate this logit-probit approach and consider some alternative strategies for state policy adoption research. In particular, we discuss the Cox model, which avoids the need to parameterize the baseline hazard function and, therefore, is often preferable to the logit-probit approach. Furthermore, we demonstrate how the Cox model can be modified to deal effectively with repeatable and competing events, events that the logit-probit approach cannot be used to model.
116 citations