Showing papers on "Roberts Court published in 2017"

Justice, Interrupted: The Effect of Gender, Ideology and Seniority at Supreme Court Oral Arguments

Abstract: Oral arguments at the Supreme Court are important — they affect case outcomes and constitute the only opportunity for outsiders to directly witness the behavior of the justices of the highest court. This Article studies how the justices compete to have influence at oral argument, by examining the extent to which the Justices interrupt each other; it also scrutinizes how advocates interrupt the Justices, contrary to the rules of the Court. We find that judicial interactions at oral argument are highly gendered, with women being interrupted at disproportionate rates by their male colleagues, as well as by male advocates. Oral argument interruptions are also highly ideological, not only because ideological foes interrupt each other far more than ideological allies do, but we show that conservatives interrupt liberals more frequently than vice versa. Seniority also has some influence on oral arguments, but primarily through the female justices learning over time how to behave more like male justices, avoiding traditionally female linguistic framing in order to reduce the extent to which they are dominated by the men. We use two separate databases to examine how robust these findings are: a publicly available database of Roberts Court oral arguments, and another that we created, providing in-depth analysis of the 1990, 2002, and 2015 Terms. This latter data allows us to see whether the same patterns held when there were one, two, and three female justices on the Court, respectively. These two sets of analyses allow us to show that the effects of gender, ideology, and seniority on interruptions have occurred fairly consistently over time. It also reveals that the increase in interruptions over time is not a product of Justice Scalia’s particularly disruptive style, as some have theorized, nor of the political polarization in the country generally arising from the 1994 Republican Revolution. We also find some evidence that judicial divisions based on legal methodology, as well as ideology, lead to greater interruptions.

Justice, interrupted: The effect of gender, ideology, and seniority at supreme court oral arguments

Abstract: Oral arguments at the Supreme Court are important — they affect case outcomes and constitute the only opportunity for outsiders to directly witness the behavior of the justices of the highest court. This Article studies how the justices compete to have influence at oral argument, by examining the extent to which the Justices interrupt each other; it also scrutinizes how advocates interrupt the Justices, contrary to the rules of the Court. We find that judicial interactions at oral argument are highly gendered, with women being interrupted at disproportionate rates by their male colleagues, as well as by male advocates. Oral argument interruptions are also highly ideological, not only because ideological foes interrupt each other far more than ideological allies do, but we show that conservatives interrupt liberals more frequently than vice versa. Seniority also has some influence on oral arguments, but primarily through the female justices learning over time how to behave more like male justices, avoiding traditionally female linguistic framing in order to reduce the extent to which they are dominated by the men. We use two separate databases to examine how robust these findings are: a publicly available database of Roberts Court oral arguments, and another that we created, providing in-depth analysis of the 1990, 2002, and 2015 Terms. This latter data allows us to see whether the same patterns held when there were one, two, and three female justices on the Court, respectively. These two sets of analyses allow us to show that the effects of gender, ideology, and seniority on interruptions have occurred fairly consistently over time. It also reveals that the increase in interruptions over time is not a product of Justice Scalia’s particularly disruptive style, as some have theorized, nor of the political polarization in the country generally arising from the 1994 Republican Revolution. We also find some evidence that judicial divisions based on legal methodology, as well as ideology, lead to greater interruptions.

Confidence and Constraint: Public Opinion, Judicial Independence, and the Roberts Court

Abstract: Although Americans continue to express greater and more stable levels of confidence in the Supreme Court than in Congress and the executive branch of the federal government, the Supreme Court’s public standing has fallen steadily over the last fifteen years. A growing body of research in political science and related fields indicates that declining public support for the Supreme Court undermines judicial independence. To illustrate these effects, we estimate a statistical model of the Supreme Court’s propensity to invalidate federal laws on constitutional grounds in each term from 1973 through 2014 and generate predictions of the number of federal laws struck down by the Supreme Court under various political conditions. This analysis shows how public support lost during the Roberts Court has mattered for the justices’ willingness to invalidate federal laws. We argue that evidence of a link between persistent declines the Supreme Court’s public standing and lost institutional capacity suggest that Chief Justice Roberts take a more aggressive public stance as an advocate for the Supreme Court and the rule of law. *Doctoral Candidate, Department of Political Science, Texas A&M University. ahiggins11@tamu.edu. Lecturer, Department of Political Science, Texas A&M University. nickconway@tamu.edu. Associate Professor, Department of Political Science, Texas A&M University. jura@tamu.edu. There has been a steady decline in the public standing of the Supreme Court for more than a decade. Although the Supreme Court continues to enjoy substantially higher public confidence than either Congress or the executive branch of the federal government, public hostility to the Supreme Court is at the highest levels recorded in the four decades covered by the record of survey research on Americans’ views of the Court. Although the beginning of the decline in the Court’s public standing precedes John Roberts’s joining the Court as Chief Justice, it has continued throughout his tenure. The decline in the Court’s public standing over the past fifteen years works against the justices’ shared ability to use their institutional prerogatives to shape legal and political outcomes. Research in political science demonstrates that declining confidence in the Supreme Court undermines judicial independence: creating political space for Congress to decrease resource support and discretion and leading the Court to hold back from invalidating federal laws in order to avoid conflict with the elected branches of government. Among other things, lost public confidence undermines the justices’ willingness to invalidate federal laws. Although this effect is mitigated by low confidence in the elected branches of the national government, the Court is in a precarious position. Either further erosion of its public support or an increase in confidence in Congress and the executive branch would substantially curtail judicial independence. To demonstrate the consequences of these political dynamics and show the magnitude of their effects, we estimate a statistical model of the Supreme Court’s propensity to invalidate federal laws on constitutional grounds in each term from 1973 through 2014. This model allows us to generate predictions of the number of federal laws struck down by the Supreme Court under various political conditions. In particular, we generate predictions showing how changing public support for the Court and Congress affected the justices’ willingness to invalidate federal laws and simulate the impact of further reductions in the Court’s public standing and increases in confidence in Congress and the executive branch for expressed judicial independence.

Opinion Construction in the Roberts Court

Abstract: The Supreme Court's main output is the decision on the merits. Little is known, however, about how such decisions are constructed. This article is one of the first to look at the way Supreme Court opinions are constructed by examining the impact of the core linguistic resources at the Court's disposal. It does so in a novel manner by measuring the Court's reliance on wording from parties' merits filings, amicus briefs, and lower court opinions between the 2005 and 2014 terms. To accomplish this goal, the article compares language in over 13,000 documents in the Court's docket during this period with their respective majority opinions. The article then looks at the relative impact of parties' briefs and filings, amicus curiae briefs, and lower court opinions on the Court's majority opinion language. This article provides both macro and microlevel analyses by locating the relative effects of these linguistic resources on the Court's overall opinion language as well as by breaking these findings down by individual justice. In the aggregate, this article finds that of the three resources analyzed, the Court tends to use language from parties' merits briefs most frequently, then wording from lower court opinions, and the least from amicus briefs, but that differences in case level factors shift the relative utility of each of these three resources. This article is protected by copyright. All rights reserved.

Symposium: Business in the Roberts Court - Introduction: Still in Search of the Pro-Business Court

Abstract: The Supreme Court under Chief Justice Roberts is often described as a “pro-business” court Many commentators believe that Court is particularly sympathetic to business interests in concerns A 2016 volume, Business and the Roberts Court turned a critical eye to this hypothesis In September 2016, the Center for Business Law & Regulation at the Case Western Reserve University School of Law hosted a symposium to further explore how the Roberts Court deals with business issues Papers from this conference were published in the Case Western Reserve Law Review, and this brief article served as the Introduction for this symposium

The Influence of the Solicitor General as Amicus Curiae on the Roberts Court, 2005–2014: A Research Note

Abstract: In this article, we examine the influence of the Solicitor General (SG) as amicus curiae on Supreme Court decision making. We use the Supreme Court Database (SCDB) as well as original data on participation by the SG and other amici. Our data span the first ten terms of the Roberts Court: 2005 to 2014, inclusive. Our analysis employs logistic regression where the dependent variable is the ideological direction of the vote cast by each justice in each case (the “DIR” variable in the SCDB). To isolate the impact of the SG as amicus, we control for judicial ideology, the direction of the lower court decision under review, the participation of other amici, and whether the federal government is a party to the case. Our analysis shows that the influence of the Solicitor General as an amicus arguing for a liberal outcome exceeds that of the other variables in the model. The marginal effect of the Solicitor General as an amicus arguing for a conservative outcome is somewhat less, but still exceeds all othe...

When It Comes to Business, the Right and Left Sides of the Court Agree

Abstract: Although the conservatives (all Republican appointees) on the Roberts Court are more favorable to business than the liberals (all Democratic appointees), the liberals are hardly anti-business. We show that the four Democratic appointees serving on the Roberts Court are far more business-friendly than Democratic appointees of any other Court era. Even more surprising, the Democrats vote in favor of business at significantly higher rates than Republican appointees in all the other chief justice periods since 1946. Because the current Democratic and Republican appointees support business at record levels, the fraction of unanimous pro-business decisionsthe "Business Favorability Index"-has never been higher. What with the left and right side of the bench favoring business at levels unprecedented in the last 70 years, it is fair to continue to characterize the Roberts Court as "pro-business." . Epstein is the Ethan A.H. Shepley Distinguished University Professor at Washington University in St. Louis. Landes is the Clifton R. Musser Professor Emeritus of Law and Economics at the University of Chicago Law School. Posner served on U.S. Court of Appeals for the Seventh Circuit and is a senior lecturer at the University of Chicago Law School. We are grateful to Ha Eun Park for research assistance and to Jonathan Adler for very helpful comments. Epstein thanks the National Science Foundation, Washington University School of Law, and the John Simon Guggenheim Foundation, and Landes and Posner the law and economics program at the University of Chicago, for research support. All data used in this article are available at http://epstein.wustl.edu/researchibusinessSupCt.html.

Of White Whales, Obamacare, and the Roberts Court: The Republican Attempts to Harpoon Obama’s Presidential Legacy

Abstract: © American Political Science Association, 2017 doi:10.1017/S1049096516002079 ........................................................................................................................................................................................................................................................................................................ ........................................................................................................................................................................................................................................................................................................

The Anti-Deference Pro-Preemption Paradox at the U.S. Supreme Court: The Business Community Weighs In

Abstract: Two indicia of the Roberts Court’s alleged pro-business leanings are, first, its readiness to find state tort law preempted by federal law and, second, its skepticism toward Auer deference to federal agencies But it is difficult to reconcile individual Justices’ — particularly those identified as part of the “conservative core” — pro-preemption positions and anti-Auer positions, and this tension suggests that the oft-advanced pro-business narrative warrants a closer look The tension is on clearest display in drug preemption cases, where even the most anti-agency deference Justices readily defer to the Food and Drug Administration (FDA), particularly when the agency’s interpretation of its own regulations under Auer is at issue This Article examines the extent to which the business community is involved in, and is perhaps even playing a role in perpetuating, this paradox It also remains to be seen how, if at all, this will affect the Court going forward

Leidos and the Roberts Court's Improvident Securities Law Docket

Abstract: This Essay addresses a noteworthy case from the U.S. Supreme Court's 2017 Term, Leidos, Inc. v. Indiana Public Retirement System (Leidos). Leidos turned on a significant issue in securities law, as it concerned investors’ ability to bring fraud claims under Rule 10b-5 in connection with one of the more controversial corporate disclosures mandated by the SEC — an overview of uncertainties facing a company’s financial future, known as “Management’s Discussion and Analysis” (MD&A). Although Leidos was billed in both the briefing to the Supreme Court and academic commentary as presenting a classic circuit split, this Essay demonstrates that a careful reading of the underlying precedents reveals no genuine dispute among the federal courts. The case, which was settled in the weeks leading up to its oral argument, therefore left so little to be resolved that it was already ripe for removal from the Supreme Court’s docket on the grounds that certiorari had been “improvidently granted.” The confusion surrounding Leidos is of broader importance for understanding the evolution of the Supreme Court’s securities law jurisprudence since John Roberts became Chief Justice in 2005. Namely, it highlights what is becoming a defining characteristic of the Roberts Court: that it has combined an enthusiasm for granting certiorari on securities law petitions with a tendency to misapprehend the issues (or lack thereof) which they raise. This practice reflects an inefficient use of the Court’s scarce docket space. It also represents a missed opportunity to clarify the many areas of securities regulation that remain mired in doctrinal incoherence.

When Facts Don’t Matter

Abstract: We are used to thinking that facts shape legal outcomes, but sometimes the Supreme Court wants nothing to do with facts. In some high-profile constitutional decisions, the Roberts Court has ignored important congressional findings, deeming irrelevant facts that document the very mischief Congress sought to remedy. Similarly, in these same cases the Court exploits the muddy line between facial and as-applied challenges to avoid confronting particular facts. The Justices in these cases do not question the veracity of seemingly relevant facts. Rather, they write their opinions as though these facts don’t matter. This Article examines the Court’s penchant for brushing aside inconvenient facts. Using three prominent decisions as case studies, it argues that a majority of Justices too often rely on novel constitutional doctrine to dismiss congressional findings and other facts. This collective disdain for facts muddles constitutional law, aggrandizes the judiciary, and privileges ideology over evidence. Of course, the relevance of particular facts is ultimately a legal question, so the Court clearly enjoys the prerogative to determine which findings have constitutional salience. That said, the Court still owes Congress and the country a more careful explanation when it deems irrelevant the very facts that prompted legislative action in the first place.

Managed Speech: The Roberts Court's First Amendment

Abstract: In Managed Speech: The Roberts Court’s First Amendment, First Amendment scholar Gregory Magarian explores and critiques how the present U.S. Supreme Court, led by Chief Justice John Roberts, has reshaped and degraded the law of expressive freedom. This timely book shows how the Roberts Court’s free speech decisions embody a version of expressive freedom that Professor Magarian calls “managed speech.” Managed speech empowers stable, responsible institutions, both government and private, to manage public discussion; disfavors First Amendment claims from social and political outsiders; and, above all, promotes social and political stability. Professor Magarian examines all of the more than forty free speech decisions the Supreme Court handed down between Chief Justice Roberts’ ascent in 2005 and Justice Antonin Scalia’s death in 2016. Those decisions, taken together, aggressively advance stability at a steep cost to robust public debate. Professor Magarian proposes a theoretical alternative to managed speech, one that would aim to increase the range of ideas and voices in public discussion: dynamic diversity. A First Amendment doctrine based on dynamic diversity would prioritize political dissent and the rights of journalists, allow for reasonable regulations of money in politics, and work to broaden opportunities for speakers to be heard. Managed Speech: The Roberts Court’s First Amendment offers a fresh, critical perspective on the crucial question of what the First Amendment should mean and do.

All Relationships Dissipate Except This: The Attitude-Behavior Link on the Roberts Court

Abstract: In contrast to two prominent themes in behavioral research—that major findings often cannot be replicated, and that there is a very weak relationship between attitudes and behavior—this Article shows that the observed relationship between the ideology of Supreme Court Justices, as measured by newspaper editorials in prominent papers between the nomination by the President and their confirmation by the Senate, and their voting behavior once on the Supreme Court, as first reported by Segal and Cover, has strengthened from the Burger Court to the Roberts Court. The Article identifies several explanations consistent with this trend. ALL RELATIONSHIPS DISSIPATE, EXCEPT THIS A prominent theme in psychology over the past few years is that key findings cannot be replicated, or a little less severely, that relationships dissipate. A recent review in Science found that efforts to replicate twenty-seven “well-known” studies resulted in “complete failure” in more than one-third of the attempts. In another set of 1 John Bohannon, Replication Effort Provokes Praise—and ‘Bullying’ Charges, 344 SCIENCE 788–89 (2014). See also Richard A. Klein et al., Washington University Open Scholarship

Originalism, Pragmatic Conservatism, and Living Document Judicial Philosophies: Explaining Variation in U.S. Supreme Court Votes in Criminal Procedure Cases for the 1994–2014 Terms of Court

Abstract: Prior research on U.S. Supreme Court justice votes and case outcomes has examined a variety of hypotheses to explain variation in voting and case decisions in criminal procedure matters. Largely ignored by prior work, however, is the notion that the effects of the measures used to examine these prior hypotheses may vary for the justices based on the judicial philosophy espoused and followed by the justice. This article identifies three distinct overarching judicial philosophies of law interpretation that have guided the justices for much of the Rehnquist Court and the entirety of the Roberts Court: Originalism, Pragmatic Conservatism, and Living Document. It contextualizes the Information, Affected Groups, and Legal Issue hypotheses in a framework that considers their potential effects across Originalist, Pragmatic Conservative, and Living Document justices on the Court for the 1994 through 2014 terms. The study finds that enhanced activity by special interest organizations (the Affected Groups Hypothesis) in support of the non-government other party impacts vote direction among Pragmatic Conservative and Living Document justices but not for the Originalist justices. It also finds more case type (Legal Issue) effects for Originalist justices than for Pragmatic Conservative and Living Document justices in that for Originalist justices a vote for the government is less likely in cases that concern statutory meaning (relative to constitutional meaning). Implications are discussed.

The Roberts Court Constitution of Freedom of Speech: Preferences, Principles, and the Study of Supreme Court Decision-making

Abstract: Since the appointment of Chief Justice G. Roberts to the U.S. Supreme Court, political scientists and legal scholars have assessed the Court’s behavior in a diverse array of cases and issue areas, including those touching on federalism, reproductive rights, voting rights, and economic liberty (cases involving businesses and corporations). Few issues have proven as vexing as the Court’s constitution of the First Amendment’s command “Congress shall make no law...abridging the freedom of speech...” In light of the Court’s ongoing constitution of the scope and coverage of the First Amendment, a narrative has emerged that paints the Court as distinctly conservative. In a number of widely publicized, controversial decisions, the Court under Chief Justice Roberts has incrementally dismantled federal and state efforts at campaign finance reform, made union fundraising more difficult, and restricted the availability of First Amendment protection for students, prisoners, and government employees. This explanation, however intuitive and prevalent, is complicated by another narrative. During the same period, the Court has issued incredibly speech-protective decisions in cases involving the distribution of videos depicting dog fights, violence in videogames, protesters at the funerals of fallen service members, lying about military awards, NGOs working abroad to address the AIDS epidemic, roadside signage, and even government employees. Adding another wrinkle to the fold is entire corpus of anti-speech claimant decisions that have been issued by a unanimous Court, or a Court divided in a way unexpected by the ‘liberals versus conservatives’ characterization of our nation’s highest