University of Virginia Press

Constitutionalism and Democracy

Gregg Ivers and Kevin McGuire

Published by: University of Virginia Press

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Constitutionalism and Democracy

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Answering the Call of the Court

How Justices and Litigants Set the Supreme Court Agenda

Vanessa A. Baird

The U.S. Supreme Court is the quintessential example of a court that expanded its agenda into policy areas that were once reserved for legislatures. Yet scholars know very little about what causes attention to various policy areas to ebb and flow on the Supreme Court’s agenda. Vanessa A. Baird’s Answering the Call of the Court represents the first scholarly attempt to connect justices’ priorities, litigants’ strategies, and aggregate policy outputs of the U.S. Supreme Court.

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Battle over the Bench

Senators, Interest Groups, and Lower Court Confirmations

As as arbiters of political and social issues, lower court judges play at least as decisive a role as Supreme Court justices, yet remarkably little is known about the process by which some lower court nominees are confirmed while others may be blocked. The most throrough empirical study the confirmation process concludes that political horse-trading unrelated to a judge's politics is even more important than the expected factors of political ideology and interest group lobbying.

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Diversity Matters

Judicial Policy Making in the U.S. Courts of Appeals

Susan B. Haire and Laura P. Moyer

Until President Jimmy Carter launched an effort to diversify the lower federal courts, the U.S. courts of appeals had been composed almost entirely of white males. But by 2008, over a quarter of sitting judges were women and 15 percent were African American or Hispanic. Underlying the argument made by administration officials for a diverse federal judiciary has been the expectation that the presence of women and minorities will ensure that the policy of the courts will reflect the experiences of a diverse population. Yet until now, scholarly studies have offered only limited support for the expectation that judges’ race, ethnicity, or gender impacts their decision making on the bench. In Diversity Matters, Susan B. Haire and Laura P. Moyer employ innovative new methods of analysis to offer a fresh examination of the effects of diversity on the many facets of decision making in the federal appellate courts.

Drawing on oral histories and data on appellate decisions through 2008, the authors’ analyses demonstrate that diversity on the bench affects not only individual judges’ choices but also the overall character and quality of judicial deliberation and decisions. Looking forward, the authors anticipate the ways in which these process effects will become more pronounced as a result of the highly diverse Obama appointment cohort.

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Institutional Games and the U.S. Supreme Court

Edited by James R. Rogers, Roy B. Flemming, and Jon R. Bond

Over the course of the past decade, the behavioral analysis of decisions by the Supreme Court has turned to game theory to gain new insights into this important institution in American politics. Game theory highlights the role of strategic interactions between the Court and other institutions in the decisions the Court makes as well as in the relations among the justices as they make their decisions. Rather than assume that the justices’ votes reveal their sincere preferences, students of law and politics have come to examine how the strategic concerns of the justices lead to "sophisticated" behavior as they seek to maximize achievement of their goals when faced with constraints on their ability to do so.

In Institutional Games and the U.S. Supreme Court, James Rogers, Roy Flemming, and Jon Bond gather various essays that use game theory to explain the Supreme Court's interactions with Congress, the states, and the lower courts. Offering new ways of understanding the complexity and consequences of these interactions, the volume joins a growing body of work that considers these influential interactions among various branches of the U.S. government.

Contributors:

Kenneth A. Shepsle, Andrew De Martin, James R. Rogers, Christopher Zorn, Georg Vanberg, Cliff Carrubba, Thomas Hammond, Christopher Bonneau, Reginald Sheehan, Charles Cameron, Lewis A. Kornhauser, Ethan Bueno de Mesquita, Matthew Stephenson, Stefanie A. Lindquist, Susan D. Haire, Lawrence Baum

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Law, Politics, and Perception

How Policy Preferences Influence Legal Reasoning

Eileen Braman

Based on an innovative combination of psychological experimentation and studies of individual cases, the author advances a new theory about the ways in which policy preferences influence judicial decision-making. She demonstrates that "motivated reasoning" does indeed occur, but its scope is limited by rules of legal analysis.

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Merely Judgment

Ignoring, Evading, and Trumping the Supreme Court

Based on an award-winning dissertation, Merely Judgment examines what happens after a Supreme Court decision is handed down--in particular how governments and other institutions can derail the implementation of Supreme Court decisions on affirmative action in governmental contracting; also flag burning, hate speech, and school prayer.

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A Storm over This Court

Law, Politics, and Supreme Court Decision Making in Brown v. Board of Education

Jeffrey D. Hockett

On the way to offering a new analysis of the basis of the Supreme Court’s iconic decision in Brown v. Board of Education, Jeffrey Hockett critiques an array of theories that have arisen to explain it and Supreme Court decision making generally. Drawing upon justices’ books, articles, correspondence, memoranda, and draft opinions, A Storm over This Court demonstrates that the puzzle of Brown’s basis cannot be explained by any one theory.

Borrowing insights from numerous approaches to analyzing Supreme Court decision making, this study reveals the inaccuracy of the popular perception that most of the justices merely acted upon a shared, liberal preference for an egalitarian society when they held that racial segregation in public education violates the equal protection clause of the Fourteenth Amendment. A majority of the justices were motivated, instead, by institutional considerations, including a recognition of the need to present a united front in such a controversial case, a sense that the Court had a significant role to play in international affairs during the Cold War, and a belief that the Court had an important mission to counter racial injustice in American politics.

A Storm over This Court demonstrates that the infusion of justices’ personal policy preferences into the abstract language of the Constitution is not the only alternative to an originalist approach to constitutional interpretation. Ultimately, Hockett concludes that the justices' decisions in Brown resist any single, elegant explanation. To fully explain this watershed decision—and, by implication, others—it is necessary to employ a range of approaches dictated by the case in question.

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The View from the Bench and Chambers

Examining Judicial Process and Decision Making on the U.S. Courts of Appeals

Jennifer Barnes Bowie, Donald R. Songer, and John Szmer

For most of their history, the U.S. courts of appeals have toiled in obscurity, well out of the limelight of political controversy. But as the number of appeals has increased dramatically, while the number of cases heard by the Supreme Court has remained the same, the courts of appeals have become the court of last resort for the vast majority of litigants. This enhanced status has been recognized by important political actors, and as a result, appointments to the courts of appeals have become more and more contentious since the 1990s. This combination of increasing political salience and increasing political controversy has led to the rise of serious empirical studies of the role of the courts of appeals in our legal and political system.

At once building on and contributing to this wave of scholarship, The View from the Bench and Chambers melds a series of quantitative analyses of judicial decisions with the perspectives gained from in-depth interviews with the judges and their law clerks. This multifaceted approach yields a level of insight beyond that provided by any previous work on appellate courts in the United States, making The View from the Bench and Chambers the most comprehensive and rich account of the operation of these courts to date.

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The View of the Courts from the Hill

Interactions between Congress and the Federal Judiciary

Mark C. Miller

Using a "governance as dialogue" approach, Miller's study of the changing relationship between congress and the courts identifies threats--most recently from social conservatives and the religious right--to the judicial independence necessary to a dialogue between the two branches.

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Voters' Verdicts

Citizens, Campaigns, and Institutions in State Supreme Court Elections

Chris W. Bonneau and Damon M. Cann

In Voters’ Verdicts, Chris Bonneau and Damon Cann address contemporary concerns with judicial elections by investigating factors that influence voters’ decisions in the election of state supreme court judges. Bonneau and Cann demonstrate that the move to nonpartisan elections, while it depresses political participation, does little to mute the effects of partisanship and ideology. The authors note the irony that judicial elections, often faulted for politicizing the legal process, historically represented an attempt to correct the lack of accountability in the selection of judges by appointment, since unlike appointive systems, judicial elections are at least transparent.

This comprehensive study rests on a broad evidentiary base that spans numerous states and a variety of electoral systems. Bonneau and Cann use the first national survey of voters in state supreme court elections paired with novel laboratory experiments to evaluate the influence of incumbency and other ballot cues on voters’ decisions. Data-rich and analytically rigorous, this provocative volume shows why voters decide to participate in judicial elections and what factors they consider in casting their votes.

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