Judicial opinion

About: Judicial opinion is a research topic. Over the lifetime, 5300 publications have been published within this topic receiving 64803 citations.

The Real World of Arbitrariness Review

Abstract: The Administrative Procedure Act instructs federal courts to invalidate agency decisions that are “arbitrary” or “capricious.” In its 1983 decision in the State Farm case, the Supreme Court firmly endorsed the idea that arbitrariness review requires courts to take a “hard look” at agency decisions. The hard look doctrine has been defended as a second-best substitute for insistence on the original constitutional safeguards; close judicial scrutiny is said to discipline agency decisions and to constrain the illegitimate exercise of discretion. In the last two decades, however, hard look review has been challenged on the plausible but admittedly speculative ground that judges’ policy preferences affect judicial decisions about whether agency decisions are “arbitrary.” This study, based on an extensive data set, finds that the speculation is correct. Democratic appointees are far more likely to vote to invalidate, as arbitrary, conservative agency decisions than liberal agency decisions. Republican appointees are far more likely to invalidate, as arbitrary, liberal agency decisions than conservative agency decisions. Significant panel effects are also observed. Democratic appointees show especially liberal voting patterns on allDemocratic panels; Republican appointees show especially conservative voting patterns on allRepublican panels. Our central findings do not show that judicial votes are dominated by political considerations, but they do raise grave doubts about the claim that hard look review is operating as a neutral safeguard against the errors and biases of federal agencies. Because judicial policy commitments are playing a large role, there is a strong argument for reducing the role of those commitments, and perhaps for softening hard look review. * Assistant Professor of Law, University of Chicago Law School. ** Karl N. Llewellyn Distinguished Service Professor, Law School and Department of Political Science, University of Chicago Law School. We thank Eric Posner, Richard Posner, Peter Strauss, and Adrian Vermeule for helpful comments. We are grateful to Rachael Dizard, Casey Fronk, Darius Horton, Matthew Johnson, Bryan Mulder, Brett Reynolds, Matthew Tokson, and Adam Wells for superb research assistance.

Choices in Context: How Case-Level Factors Influence the Magnitude of Ideological Voting on the U.S. Supreme Court

Abstract: Most scholarship on Supreme Court decision making assumes that justices’ ideological preferences exhibit a uniform impact on their choices across a variety of situations. I develop a theoretical framework positing the importance of case-level context in shaping the magnitude of ideological voting on the Court. I hypothesize how issue-related factors influence this magnitude. I test the hypotheses using a multilevel modeling framework on data from the 1953-2004 terms. The results provide support for several of the hypotheses; issue salience, issue attention, the authority for the decision (statutory interpretation versus constitutionality of federal or state laws), intercourt conflict, the presence of a lower court dissent, and mandatory versus discretionary jurisdiction all significantly influence ideological voting. Overall, the article adds significant qualifications to extant theories of judicial decision making by showing how ideological voting on the Court is shaped by the varying situations that con...

Judicial Transparency in an Age of Prediction

Abstract: The Empirical Legal Studies (ELS) movement is making strides toward understanding judicial behavior, and ELS models could become the foundation for more accurate prediction of judicial decisions. This essay raises two questions associated with this development. First, what would an age of predictable judicial behavior look like? Second, would satisfying the informational needs of ELS prediction models also exhaust the demands for "judicial transparency"? My conclusions are that a state of predictable judicial behavior, if somehow stable, would leave almost no litigation to observe; and that a prediction-oriented information policy would nearly meet the demands of today's transparency advocates. One shortfall involves the intrinsic/consumption value of adjudication for intellectuals and others. A prediction-oriented policy would not meet that demand and could even thwart its satisfaction which presents an unappreciated normative choice for information policy.

Public Opinion, Public Support, and Counter-Attitudinal Voting on the U.S. Supreme Court

Abstract: Key questions in American politics are whether and why the Supreme Court is responsive to public opinion. Past scholarship has suggested a strong relationship between changes in public opinion and the ideological direction of the Court’s decisions. Here we focus on a slightly different question and examine why justices are willing to follow public opinion, even at the expense of their own ideological preferences. To this end we examine whether justices are willing to vote contrary to their preferences when those preferences are out of step with prevailing public opinion. We employ a novel issue-specific measure of public mood, and we find that justices follow public opinion to shore up broader institutional approval. But the constraint of public opinion is not static over time. Rather, justices are uniquely responsive to public opinion when public support for the Court is low or case salience is high.