Showing papers on "Supreme court published in 2016"
TL;DR: It is shown that GOP-leaning or GOP-dominated states have been most likely to embrace the expansion when organized business support outweighs pressures from conservative networks, which helps make sense of ongoing state-level debates over a core part of health reform and shed new light on mounting policy tensions within the Republican Party.
Abstract: A major component of the Affordable Care Act involves the expansion of state Medicaid programs to cover the uninsured poor. In the wake of the 2012 Supreme Court decision upholding and modifying reform legislation, states can decide whether to expand Medicaid-and twenty states are still not proceeding as of August 2015. What explains state choices about participation in expansion, including governors' decisions to endorse expansion or not as well as final state decisions? We tackle this puzzle, focusing closely on outcomes and battles in predominantly Republican-led states. Like earlier scholars, we find that partisan differences between Democrats and Republicans are central, but we go beyond earlier analyses to measure added effects from two dueling factions within the Republican coalition: statewide business associations and cross-state networks of ideologically conservative organizations. Using both statistical modeling and case studies, we show that GOP-leaning or GOP-dominated states have been most likely to embrace the expansion when organized business support outweighs pressures from conservative networks. Our findings help make sense of ongoing state-level debates over a core part of health reform and shed new light on mounting policy tensions within the Republican Party.
67 citations
TL;DR: The authors found that people who first heard about the Court decisions on health care and immigration were more likely to support the Court's decisions, and that these effects were largest among people who received one-sided information.
Abstract: Can Supreme Court rulings change Americans’ policy views? Prior experimental and observational studies come to conflicting conclusions because of methodological limitations. We argue that existing studies overlook the media’s critical role in communicating Court decisions and theorize that major decisions change Americans’ opinions most when the media offer one-sided coverage supportive of the Court majority. We fielded nationally representative surveys shortly before and after two major Supreme Court decisions on health care and immigration and connected our public opinion data with six major television networks’ coverage of each decision. We find that Court decisions can influence national opinion and increase support for policies the Court upholds as constitutional. These effects were largest among people who received one-sided information. To address selection concerns, we combined this observational study with an experiment and find that people who first heard about the Court decisions throug...
56 citations
Book•
01 Mar 2016
48 citations
Journal Article•
TL;DR: This article found that the disadvantaged demonstrate the greatest propensity to obey despite substantive disapproval, and the fact that these same persons are the least integrated with the polity leads to a tentative interpretation of legitimacy in terms of vulnerability.
Abstract: Legitimacy exists when citizens comply with governmental edicts despite substantive disapproval. Attribution of legitimacy may proceed from at least three antecedents: subscription to a "judicial myth," diffuse supportive orientations, and approval of past specific decisions. Survey research on both black and white students, however, fails to support any of the three. Instead, the disadvantaged (especially blacks) demonstrate the greatest propensity to obey. This, coupled with the fact that these same persons are the least integrated with the polity (e.g., they exhibit lower levels of myth subscription and diffuse support), leads to a tentative interpretation of legitimacy in terms of vulnerability.
47 citations
TL;DR: A computational model is presented that allows us to understand redistricting in fundamentally new ways and allows for the creation of many tools to connect citizens and automate human tasks.
Abstract: Partisan gerrymandering is widely frowned upon by the citizenry as well as the Supreme Court. Despite broad disdain for the practice, the Supreme Court has found it difficult to identify a workable standard by which we might regulate political gerrymandering. We have lacked sufficient tools to analyze and synthesize redistricting data, in part, because the requisite computation is massive. At the same time, the recent proliferation of significant computing power has led to the discovery of the extensive and often surprising reach of technology, information, and computation in many realms of life. Our capacities to compile, organize, analyze, and disseminate information have increased dramatically and facilitated the creation of many tools to connect citizens and automate human tasks. We present a computational model that brings these significantly advanced computing capacities to the redistricting process. Our model allows us to understand redistricting in fundamentally new ways and allows us to ...
47 citations
Book•
11 Mar 2016TL;DR: In this article, the political and constitutional consequences of the Vieth v. Jubelirer (2004) decision were considered, where the Supreme Court held that partisan gerrymandering challenges could no longer be adjudicated by the courts.
Abstract: This book considers the political and constitutional consequences of Vieth v. Jubelirer (2004), where the Supreme Court held that partisan gerrymandering challenges could no longer be adjudicated by the courts. Through a rigorous scientific analysis of US House district maps, the authors argue that partisan bias increased dramatically in the 2010 redistricting round after the Vieth decision, both at the national and state level. From a constitutional perspective, unrestrained partisan gerrymandering poses a critical threat to a central pillar of American democracy, popular sovereignty. State legislatures now effectively determine the political composition of the US House. The book answers the Court's challenge to find a new standard for gerrymandering that is both constitutionally grounded and legally manageable. It argues that the scientifically rigorous partisan symmetry measure is an appropriate legal standard for partisan gerrymandering, as it logically implies the constitutional right to individual equality and can be practically applied.
47 citations
TL;DR: Examination of factors explaining state variation in Medicaid expansion from 2012 to 2014 demonstrates that the enactment of legislation is only a part of the policy formation process and that implementation is equally salient, with state dynamics playing a critical role.
Abstract: After President Barack Obama signed into law the Affordable Care Act (ACA) of 2010, 26 states filed lawsuits challenging key provisions. In 2012, the Supreme Court ruled in support of most provisions but held that the mandatory Medicaid expansion was unconstitutional, in effect making it optional for the states. Yet Medicaid expansion is critical if the ACA is to achieve its goal of substantially increasing coverage, especially for lower-income adults with health problems, many of whom are racial and ethnic minorities. This article examines the factors explaining state variation in Medicaid expansion from 2012 to 2014. Although partisan power in the states is a key predictor, other relevant factors include the state’s Medicaid policy legacy, providers’ influence, conservative ideology, and racial resentment. We demonstrate that the enactment of legislation is only a part of the policy formation process and that implementation is equally salient, with state dynamics playing a critical role.
46 citations
TL;DR: In this article, the authors argue that the U.S. Supreme Court has been reaching wildly inconsistent conclusions on the issue of harm, with most courts dismissing data breach lawsuits for failure to allege harm.
Abstract: In lawsuits about data breaches, the issue of harm has confounded courts. Harm is central to whether plaintiffs have standing to sue in federal court and whether their claims are viable. Plaintiffs have argued that data breaches create a risk of future injury from identity theft or fraud and that breaches cause them to experience anxiety about this risk. Courts have been reaching wildly inconsistent conclusions on the issue of harm, with most courts dismissing data breach lawsuits for failure to allege harm. A sound and principled approach to harm has yet to emerge, resulting in a lack of consensus among courts and an incoherent jurisprudence.In the past five years, the U.S. Supreme Court has contributed to this confounding state of affairs. In 2013, the Court in Clapper v. Amnesty International concluded that fear and anxiety about surveillance – and the cost of taking measures to protect against it – were too speculative to constitute “injury in fact” for standing. The Court emphasized that injury must be “certainly impending” to warrant recognition. This past term, the U.S. Supreme Court in Spokeo v. Robins issued an opinion aimed at clarifying the harm required for standing in a case involving personal data. But far from providing guidance, the opinion fostered greater confusion. What the Court made clear, however, was that “intangible” injury, including the “risk” of injury, could be sufficient to establish harm. In cases involving informational injuries, when is intangible injury like increased risk and anxiety “certainly impending” or “substantially likely to occur” to warrant standing? The answer is unclear.Little progress has been made to harmonize this troubled body of law, and there is no coherent theory or approach. In this essay, we examine why courts have struggled when dealing with harms caused by data breaches. The difficulty largely stems from the fact that data breach harms are intangible, risk-oriented, and diffuse. Harms with these characteristics need not confound courts; the judicial system has, been recognizing intangible, risk-oriented, and diffuse injuries in other areas of law.We argue that courts are far too dismissive of certain forms of data breach harm. In many instances, courts should find that data breaches cause cognizable harm. We explore how existing legal foundations support the recognition of such harm. We demonstrate how courts can assess risk and anxiety in a concrete and coherent way.
45 citations
01 Jan 2016
TL;DR: The essential facilities doctrine is less a doctrine than an epithet, indicating some exception to the right to keep one's creations to oneself, but not telling us what those exceptions are as discussed by the authors.
Abstract: There is much talk these days, particularly in the context of deregulated industries, about the so-called essential facilities doctrine1 "socalled" because most Supreme Court cases invoked in support do not speak of it and can be explained without reference to it. Indeed, the cases support the doctrine only by implication and in highly qualified ways. You will not find any case that provides a consistent rationale for the doctrine or that explores the social costs and benefits or the administrative costs of requiring the creator of an asset to share it with a rival. It is less a doctrine than an epithet, indicating some exception to the right to keep one's creations to oneself, but not telling us what those exceptions are.
44 citations
Journal Article•
TL;DR: In this article, the authors focus on the extraordinary legal and personal saga of one man, Joe Giarratano, his decades-long heroic struggle to overturn his death sentence and, ultimately, to obtain his release and exoneration.
Abstract: Table of ContentsI. Introduction 1470II. A Brief Review of U.S. Supreme Court Jurisprudence on the Death Penalty and Mental Illness 1473III. The Death Penalty in International Human Rights Law and Practice: Toward Abolition 1477IV. Some Methodological Challenges in Documentation of Mental Illness and Death Penalty Issues in International Law 1481V. The Evolving Jurisprudence on the Death Penalty and Mental Illness Under International Human Rights Law 1485A. Support for a Ban on Execution of Persons with Any Mental Impairment 1489B. Support for a Ban on Execution of Persons with Severe Mental Impairment 1494VI. Conclusion 1498I. IntroductionThis symposium primarily focuses on the extraordinary legal and personal saga of one man, Joe Giarratano, his decades-long heroic struggle to overturn his death sentence and, ultimately, to obtain his release and exoneration. Prior to the conference, my only acquaintance with the Giarratano case was the decision in Murray v. Giarratano1-the U.S. Supreme Court decision holding that the Sixth Amendment right to appointed counsel does not extend to the post-conviction stages of death penalty litigation.2 The symposium provided a much broader perspective on the saga of Joe Giarratano, whose own legal skills parallel those of the many lawyers involved in his representation. My particular panel was one focused on mental illness and the death penalty, which, as other panelists made evident, was deeply implicated in the Giarratano case as well. My participation in the panel, however, was intended to offer a broader perspective on the issue, indeed the only international law perspective on the array of issues discussed during the symposium. This Article addresses the question of what international human rights law has to say about the death penalty in general, as well as the evolving views of the international community as to how mental illness may, or should, bar the imposition and carrying out of the death penalty.Issues about mental illness and the death penalty remain unresolved at the constitutional level in the United States, despite a number of U.S. Supreme Court decisions addressing the topic, as will be addressed below.3 It is conservatively estimated that some five to ten percent of all inmates on death row suffer from some form of mental illness.4 In a book published in 2014, I predicted that the next issue to be addressed by the U.S. Supreme Court-in its gradual chipping away at the death penalty in the United States-would be whether mental illness, other than insanity, should bar the imposition of capital punishment under the Eighth Amendment to the Constitution.5 I am not alone in this prediction.6 Despite the death of Justice Antonin Scalia, and the apparent impasse as to the Senate review and confirmation of his successor, I continue to believe that the Court will soon take up this important question.The Court again addressed the contentious issue of lethal injection as a method of execution in its 2015 decision Glossip v. Gross7-a decision more noteworthy for its dissents than its majority opinion. In a far-reaching and exhaustive analysis, Justice Breyer, joined by Justice Ginsburg, concluded that "the death penalty, in and of itself, now likely constitutes a legally prohibited 'cruel and unusual punishmen[t].'"8 That opinion coincides with the arc of justice in the international community where the law, standards, and practice bend strongly toward abolition.9 This Article will broadly examine the question of how international human rights law looks at the death penalty generally, as well as the context of those who are mentally ill on death row. …
43 citations
TL;DR: The authors argues that denationalization is, in principle, the adequate response to terrorism, because terrorism, particularly of the Islamist kind, is no ordinary crime but attack on the fundaments of citizenship.
Abstract: Terror in the name of God and the specter of returning fighters for the so-called ‘Islamic State’ have recently moved some Western states, including Britain, Canada, and France, toward revoking the citizenship of terrorists. To critics, this constitutes a ‘return to banishment,’ a ‘fate universally decried by civilized people,’ as an American Supreme Court Chief Justice put it in the late 1950s. In a double reflection on the changing nature of terror and of citizenship, this paper argues that denationalization is, in principle, the adequate response to terror. This is because terror, particularly of the Islamist kind, is no ordinary crime but attack on the fundaments of citizenship. But what is right in principle may not be the right thing to do, because denationalization raises serious practicality problems.
TL;DR: The conflict analysis findings indicate that the dispute is enduring because of a lack of incentive and opportunity for any party to move beyond the present circumstances, and is likely to require a third party intervention, such as equal apportionment by the US Supreme Court.
TL;DR: The Supreme Court decision in Montgomery v Lanarkshire Health Board signaled a move away from a ‘doctor knows best’ approach to one that focuses on disclosing information to which particular patients would attach significance, which is a welcome development.
Abstract: This paper examines the UK Supreme Court decision in Montgomery v Lanarkshire Health Board, which deals with consent and information disclosure in medical treatment and care. It signaled a move away from a 'doctor knows best' approach to one that focuses on disclosing information to which particular patients would attach significance. Notwithstanding concerns about increased litigation and loss of professional autonomy, the reality is that the decision will make little difference to healthcare practice and consent in the UK. The Supreme Court has endorsed a view that most lawyers and doctors thought already prevailed, and it reflects the General Medical Council's guidance on the issue of consent in any case. Given recent healthcare scandals in the National Health Service (NHS), the Supreme Court's legal recognition of the importance of recognizing patient autonomy in disclosing risks about medical treatment and care is a welcome development.
Journal Article•
TL;DR: This paper proposed three statistical tests to reliably assess asymmetry in state-level districting schemes: (a) an unrepresentative distortion in the number of seats won based on expectations from nationwide district characteristics; (b) a discrepancy in winning vote margins between the two parties; and (c) the construction of reliable wins for the party in charge of redistricting, as measured by either the difference between mean and median vote share, or an unusually even distribution of votes across districts.
Abstract: Since the United States Supreme Court’s Davis v. Bandemer ruling in 1986, partisan gerrymandering for statewide electoral advantage has been held to be justiciable. The existing Supreme Court standard, culminating in Vieth v. Jubelirer and LULAC v. Perry, holds that a test for gerrymandering should demonstrate both intents and effects, and that partisan gerrymandering may be recognizable by its asymmetry: for a given distribution of popular votes, if the parties switch places in popular vote, the numbers of seats will change in an unequal fashion. However, the asymmetry standard is only a broad statement of principle, and no analytical method for assessing asymmetry has yet been held by the Supreme Court to be manageable. This Article proposes three statistical tests to reliably assess asymmetry in state-level districting schemes: (a) an unrepresentative distortion in the number of seats won based on expectations from nationwide district characteristics; (b) a discrepancy in winning vote margins between the two parties; and (c) the construction of reliable wins for the party in charge of redistricting, as measured by either the difference between mean and median vote share, or an unusually even distribution of votes across districts. The first test relies on computer simulation to estimate appropriate levels of representation for a given level of popular vote, and provides a way to measure the effects of a gerrymander. The second and third tests, which evaluate intent, rely on well-established statistical principles, and can be carried out using a hand calculator without examination of maps or redistricting procedures. I apply these standards to a variety of districting schemes, starting from the original “Gerry-manderˮ of 1812 up to modern cases. In post-2010 Congressional elections, partisan gerrymandering in a handful of states generated effects that are larger than the total nationwide effect of population clustering. By applying these standards in two recent cases, I show that Arizona legislative districts (Harris v. Arizona Independent Redistricting Commission) fail to qualify as a partisan gerrymander, but Maryland’s Congressional districts (Shapiro v. McManus) do. I propose that an intents-and-effects standard based on these tests is robust enough to mitigate the need to demonstrate predominant partisan intent. The three statistical standards offered here add to the judge’s toolkit for rapidly and rigorously identifying the effects of redistricting.
TL;DR: The authors argue against providing access to MAID for mental illness, pointing out that there is a gap between the idealized basis upon which MAID is advocated for patients with psychiatric conditions and the reality of its practice.
Abstract: The Supreme Court of Canada ruled in Carter v. Canada [1][1] that competent, consenting adults whose suffering is due to a “grievous and irremediable” medical condition should have access to some form of medical assistance in dying and invited Parliament to develop a regulatory regime along
TL;DR: In the wake of the Citizens United Supreme Court decision, many American private-sector employers now have the legal right to recruit their workers into politics and to fire or discipline employees who refuse to participate as mentioned in this paper.
Abstract: In the wake of the Citizens United Supreme Court decision, many American private-sector employers now have the legal right to recruit their workers into politics and to fire or discipline employees who refuse to participate. How many firms and workers are engaged in this kind of political recruitment and why? And how have the opportunities for the political recruitment of workers by their employers changed over time? Drawing on national surveys of top corporate managers and workers, as well as a review of the legal literature, I provide initial answers to these questions and illustrate the implications of employer political recruitment for a range of substantive and normative issues in American politics. My findings invite further research and discussion about this feature of the American workplace and its effects on politics and policy.
Book•
07 Apr 2016
TL;DR: In this article, the authors investigate the extent to which US Supreme Court justices alter the clarity of their opinions based on expected reactions from their audiences, and demonstrate that actors are more likely to comply with clearer Court opinions.
Abstract: This book is the first study specifically to investigate the extent to which US Supreme Court justices alter the clarity of their opinions based on expected reactions from their audiences. The authors examine this dynamic by creating a unique measure of opinion clarity and then testing whether the Court writes clearer opinions when it faces ideologically hostile and ideologically scattered lower federal courts; when it decides cases involving poorly performing federal agencies; when it decides cases involving states with less professionalized legislatures and governors; and when it rules against public opinion. The data shows the Court writes clearer opinions in every one of these contexts, and demonstrates that actors are more likely to comply with clearer Court opinions.
Journal Article•
TL;DR: Montgomery banishes medical paternalism, putting the focus firmly with the patient, which is the standard that will now be used by both the courts and the regulators.
Abstract: This landmark legal case has changed the law on consent in health care. All health care workers must be aware of the implications of this for their practice when 'sharing information' with patients and the assertion of consent by the patient. Essentially, Montgomery banishes medical paternalism, putting the focus firmly with the patient. This is the standard that will now be used by both the courts and the regulators.
Posted Content•
TL;DR: Vagrant Nation as discussed by the authors is a history of civil rights, peace, gay rights, welfare rights, sexual, and cultural revolutions in the United States, focusing on the use of the criminal justice system to maintain safety and order and enforce conventional standards of morality and propriety.
Abstract: In 1950s America, it was remarkably easy for police to arrest almost anyone for almost any reason. The criminal justice system — and especially the age-old law of vagrancy — served not only to maintain safety and order but also to enforce conventional standards of morality and propriety. A person could be arrested for sporting a beard, making a speech, or working too little. Yet by the end of the 1960s, vagrancy laws were discredited and American society was fundamentally transformed. What happened? Vagrant Nation answers that question by showing how constitutional challenges to vagrancy laws shaped the multiple movements that made "the 1960s." Vagrancy laws were so broad and flexible that they made it possible for the police to arrest anyone out of place: Beats and hippies; Communists and Vietnam War protestors; racial minorities and civil rights activists; gays, single women, and prostitutes. As hundreds of these "vagrants" and their lawyers challenged vagrancy laws in court, the laws became a flashpoint for debates about radically different visions of order and freedom. In describing those challenges, Vagrant Nation offers a new, integrated history of the civil rights, peace, gay rights, welfare rights, sexual, and cultural revolutions. It also demonstrates how ordinary people, with the help of lawyers and judges, can change the meaning of the Constitution. The Supreme Court's 1972 decision declaring vagrancy laws unconstitutional continues to shape conflicts between police power and constitutional rights, including clashes over stop-and-frisk, homelessness, sexual freedom, and public protests. Since the downfall of vagrancy law, battles over what, if anything, should replace it, like battles over the legacy of the sixties transformations themselves, are far from over.
TL;DR: Corley et al. as mentioned in this paper found that when the Supreme Court makes a decision contrary to public opinion, justices are likely to worry the Court will lose public support (see, e.g., Nelson, N.d.).
Abstract: When the Supreme Court makes a decision contrary to public opinion, justices are likely to worry the Court will lose public support. So, what are justices to do? One option, of course, is to move the policy content of the opinion closer to public sentiment. Yet, we know that justices seek, among other things, ideological goals (Epstein and Knight 1998) and would prefer to effectuate them when feasible. Another option, then, is to seek their policy goals while mitigating the possible loss of public support. It is on this perspective we focus. We argue that justices, when they rule contrary to public opinion, will vary the clarity of majority opinions in an effort to maintain public support as best they can. While the Court has a deep reservoir of diffuse support, frequent counter-majoritarian decisions could leave it at risk (Gibson et al. 2003: 365). By writing a clear opinion when ruling against public sentiment, justices can better inform the public why they so decided, and thereby manage any immediate loss of support they might suffer-or, think they might suffer (see, e.g., Nelson, N.d.).We develop a measure of opinion clarity based on automated textual readability scores that we validate using human raters. Our results show public opinion strongly influences the content of Court opinions. Importantly, we analyze both macro- and case-level public opinion, providing broad-based support for our findings. In one approach, we compile an aggregate data set that includes Court decisions from 1952 to 2011, and execute a time series analysis that scrutinizes opinion clarity as a function of yearly changes in public mood. In a second approach, we rely on issue-specific public opinion polls that directly relate to individual Supreme Court cases (Marshall 1989, 2008). Using these microlevel data, we analyze the content of specific majority opinions to determine how public opinion influences Supreme Court opinion clarity. Both empirical analyses offer considerable support for our argument that justices write clearer opinions when they deviate from public sentiment. What is more, our measure of opinion clarity is one scholars who study other institutions could employ.These findings are important for a number of reasons. First, it is the content of the Supreme Court's opinions that influence society's behavior. Actors within society look to those opinions to determine whether they can engage in particular behaviors (Spriggs and Hansford 2001). "[S]cholars, practitioners, lower court judges, bureaucrats, and the public closely analyze judicial opinions, dissecting their content in an endeavor to understand the doctrinal development of the law" (Corley et al. 2011: 31). People must understand the content of opinions and, as such, scholars should understand the factors that influence those opinions. Our results speak to how the Court crafts the content of those opinions.Second, the results address the Court as one institution in a broader political system where justices know they do not necessarily have the last word. That is, our approach shows how the Court is tied into a larger network of actors and audiences in the American political and legal system (Baum 2006). Rather than focus on how justices influence others, we show how others (i.e., the public) can influence justices. At the same time, knowing justices intentionally alter the language of their opinions to overcome audience-based obstacles tells us something that speaks to broader normative debates about democratic control. Justices appear to do what they can to overcome obstacles from public opinion. So, while public opinion seems to influence their behavior, justices appear able to circumvent the constraints of public opinion by tailoring their messages. For those interested in ensuring more accountability of judges, these results suggest such control is perhaps more difficult than previously believed.Third, understanding how the Court alters its opinions can inform us about how the Court acquires and maintains judicial legitimacy. …
TL;DR: The authors show that negative dissents attract more media coverage, which creates a variety of mechanisms through which a dissenter's policy preferences could be realized, such as inducing Congress to take action, influencing public debate on the issue, and provoking further litigation.
Abstract: Unable to directly control the policy articulated by the Supreme Court, dissenting justices are faced with the challenge of finding alternative ways to pursue their policy goals. We argue that one strategy available to them is to use their power over the language of a dissenting opinion to increase the media attention paid to a case. Our results show that cases with negative dissents attract more media coverage, which creates a variety of mechanisms through which a dissenter’s policy preferences could be realized, such as inducing Congress to take action, influencing public debate on the issue, and provoking further litigation. This finding ultimately suggests that dissenters, while disadvantaged, are not powerless to affect legal policy.
Journal Article•
TL;DR: In this article, the authors focus on the less visible side of Court-Congressional interaction by examining Congress' response to the Court's interpretations of labor and antitrust statutes, and several hypotheses linking Congressional response to characteristics of the court's decision are tested.
Abstract: Studies of the Supreme Court-Congressional relationship have concentrated on the interaction that occurs between the two institutions in constitutional policy areas while ignoring the presumably more routine aspects of the relationship involving statutory issues. This article focuses on the less visible side of Court-Congressional interaction by examining Congress' response to the Court's interpretations of labor and antitrust statutes. Patterns of reaction are delineated, and several hypotheses linking Congressional response to characteristics of the Court's decision are tested. Factors such as the unanimity and direction of the Court's decision, which are often thought to have some bearing on the response of other political actors to the Court, do not, however, provide clear-cut explanations for Congressional reaction to the Court's statutory decisions. Striking differences are found between the labor and antitrust policy areas, suggesting that those who study judicial impact need to be careful in gener...
TL;DR: Grimmer, Westwood, and Messing as discussed by the authors provide an updated, impressive, and in-depth look at how lawmakers are able to claim credit for, and benefit from, federal spending decisions.
Abstract: House. As the out-party, attacking the government for reckless spending suddenly became more advantageous than it was when Republicans controlled theWhite House and the levers of congressional power. Indeed, a party’s majority/minority status may have wide-ranging implications for the ways in which lawmakers seek credit for federal spending decisions. It may be that while Democrats from left-leaning districts always prefer more federal spending and more pork, Republicans’ willingness to claim credit for federal spending decisions may vary on the basis of their party’s position in Washington. After all, earmarking reached its height during the unified Republican control of Washington from 2003 to 2006, despite the Republican Party’s self-professed reputation as the party of fiscal conservatism. One final critique regards the language that Grimmer, Westwood, and Messing use to describe lawmakers’ attempts to claim credit for bureaucratic decisions about federal spending in their districts. Throughout the book, these actions are presented as deceitful or described as lies. I find this language a bit harsh. While, indeed, lawmakers have a more direct claim to influence over some spending decisions than others, and while examining a competitive grant program provides a clever way to understand how far lawmakers can go with their credit claiming, it is unclear how frequently lawmakers make claims regarding grant program decisions completely insulated from their direct influence. Consequently, it is difficult to truly evaluate how concerned we should be, if indeed we should be concerned at all, about these actions. After all, it is not clear that Congress and its members should not be able to claim credit for any and all federal spending since they ultimately hold the power of the purse. To their credit, the authors provide a relatively balanced discussion of the normative implications of the leeway with which lawmakers can claim credit. Nonetheless, explicitly labeling congressional representatives as deceptive and liars strikes me as unnecessarily harsh. Relative to the important contributions of Impression of Influence, however, these are minor concerns. Ultimately, Grimmer, Westwood, and Messing have provided an updated, impressive, and in-depth look at how lawmakers are able to claim credit for, and benefit from, federal spending decisions. I expect that this book will be read by students of Congress for many years.
Journal Article•
TL;DR: The authors examined whether circuit court judges sacrifice policy purity for career goals and found that during vacancy periods, contender judges are more likely to vote consistently with the president's preferences, to rule in favor of the United States, and to write dissenting opinions.
Abstract: We examine whether circuit court judges sacrifice policy purity for career goals. We compare the behavior of contender judges–those most likely to be elevated to the Supreme Court–during vacancy periods with their behavior outside vacancy periods. We also examine the behavior of noncontender judges during those same times. The data show that during vacancy periods, contender judges are more likely to vote consistently with the president's preferences, to rule in favor of the United States, and to write dissenting opinions. Noncontender judges fail to evidence such behavior. These findings provide empirical support for the argument that federal judges adapt their behavior to specific audiences, and provide new avenues for research into judges' goals and the role of audiences in judicial decision making.
TL;DR: In this article, the authors focus on the relationship between specific and diffuse support and the role judicial symbols play in undermining that connection, concluding that the Court's legitimacy is more secure than many imagine.
Abstract: Political pundits and scholars alike have recently noticed that public judgments of how well the U.S. Supreme Court is doing its job have plummeted. Yet, the meaning of this drop for the larger legitimacy of the Court is not as clear as the poll data themselves. Some believe that dissatisfaction with the Court’s rulings threatens the institution’s legitimacy. Conventional Legitimacy Theory, on the other hand, posits a “reservoir of goodwill” through which the translation of dissatisfaction into lowered legitimacy is blocked. Positivity Theory, with its focus on the legitimizing role of the symbols of judicial authority, provides at least a partial explanation of how legitimacy is maintained in the face of rising disappointment in the Court’s rulings. Here, we focus specifically on the relationship between specific and diffuse support and the role judicial symbols play in undermining that connection, concluding that the Court’s legitimacy is more secure than many imagine. hose studying public opinion toward the U.S. Supreme Court have of late noted that the legitimacy of the institution may be on the retreat. Spurred by highly salient and unpopular Court decisions such as Kelo, Citizens United, and the Obamacare ruling, some have speculated that the institution’s “reservoir of goodwill” is facing (or beginning to face) a Texassized drought. This view has been forcefully stated in the scholarly literature (e.g., Bartels and Johnston 2013), and has even made its way into the New York Times (Liptak 2011) and into the research agenda of the Pew Research Center for the People and the Press (2013). The question of the stability of the Court’s legitimacy is a matter of practical as well as theoretical import. A fragile Court is likely to act differently from a secure Court; or, more precisely, justices with heightened concerns about institutional legitimacy might even shape their votes in highly salient cases so as to protect their institution.1 More generally, if an elemental function of the Supreme Court is to check majority opinion when it runs amok, then the so-called countermajoritarian dilemma is quite a dilemma indeed. Without a reservoir of goodwill, the Court is even more vulnerable than indicated by the many formal weaknesses of the institution. That support for the Supreme Court would be so volatile runs counter to the conventional wisdom on the sources of the Court’s legitimacy. Court attitudes are typically thought of as 1 Crawford (2012) reports that Chief Justice Roberts acted strategically to protect the Court’s legitimacy during the opinion-writing process for National Federation of Independent Business v. Sebelius, changing his vote from one to strike down the Affordable Care Act to one preserving the legislation’s constitutionality. T
TL;DR: This paper developed a political history of Wards Cove v. Atonio (1989) to show how Robert Cover's concepts of jurisgenesis and jurispathy can enrich the legal mobilization framework for understanding law and social change.
Abstract: We develop a political history of Wards Cove v. Atonio (1989) to show how Robert Cover's concepts of jurisgenesis and jurispathy can enrich the legal mobilization framework for understanding law and social change. We illustrate the value of the hybrid theory by recovering the Wards Cove workers’ own understanding of the role of litigation in their struggle for workplace rights. The cannery worker plaintiffs exemplified Cover's dual logic by articulating aspirational narratives of social justice and by critically rebuking the Supreme Court's ruling as the “death throe” for progressive minority workers’ rights advocacy. The cannery workers’ story also highlights the importance of integrating legal mobilization scholars’ focus on extrajudicial political engagement into Cover's judge-centered analysis. Our aim is to forge a theoretical bridge between Cover's provocative arguments about law and the analytical tradition of social science scholarship on the politics of legal mobilization.
TL;DR: In this paper, the negative consequences of constitutional change for judicial stability are explored using an original database of Supreme Court and Constitutional Tribunal members in eighteen Latin American countries between 1904 and 2010.
Abstract: Legal scholars frequently advocate institutional reforms to modernize the judiciary and promote judicial independence. However, constitutional reforms also offer an opportunity for politicians to reshuffle the high courts. The negative consequences of constitutional change for judicial stability are explored using an original database of Supreme Court and Constitutional Tribunal members in eighteen Latin American countries between 1904 and 2010. Because unobserved factors potentially explain constitutional replacement as well as judicial turnover, a two-stage event-history model has been employed. The analysis integrates two literatures, studies of constitution-making and studies of judicial politics. The results show that constitutional change is a significant cause of judicial instability and court manipulation, even after potential endogeneity has been taken into account.