Even if party capability theory has been well documented, parsing out the reasons why “haves” come out ahead has been challenging. Our study takes advantage of the Argentine Supreme Court’s power to dismiss appeals because they contain formal errors to ascertain the existence of representational advantage. We show that representational advantage plays a significant role, as individual appellants represent a larger proportion of appeals rejected on formal grounds than of those analyzed on their merits. In addition, certain areas of law where asymmetrical capability is prevalent and consistent, particularly labor law, are significantly overrepresented in appeals rejected on formal grounds.

Legal doctrine is generally thought to contribute to legal decision-making only to the extent it determines substantive results. Yet in many cases, the available authorities are indeterminate. I propose a different model for how doctrinal reasoning might contribute to judicial decisions. Drawing on performance theory and psychological studies of readers, I argue that judges’ engagement with formal legal doctrine might have self-disrupting effects like those performers experience when they adopt uncharacteristic behaviors. Such disruptive effects would not explain how judges ultimately select, or should select, legal results. But they might help legal decision makers to set aside subjective biases.

The legislative deferral hypothesis posits that elected policy makers, anxious to avoid the political repercussions of taking clear positions on controversial issues, will actively seek to involve the judiciary in resolving these disputes. This study seeks to further test the legislative deferral theory by considering its applicability to the state level. What is revealed from an examination of the development of abortion policy in New York is that, despite the controversial nature of the issue, lawmakers did not seem to attempt to involve the courts in its resolution, and virtually no policy was created by the state’s judicial branch. I propose an alternative explanation for judicial noninvolvement, borrowing from path-dependence theory, that emphasizes the importance of the initial location of policy change and the issue frames that first took hold around this issue.

For decades now, experiments have revealed that we humans tend to evaluate the views or activities of our own group and its members more favorably than those of outsiders. To assess convergence between experimental and observational results, we explore whether US Supreme Court justices fall prey to in-group bias in freedom-of-expression cases. A two-level hierarchical model of all votes cast between the 1953 and 2014 terms confirms that they do. Although liberal justices are (overall) more supportive of free-speech claims than conservative justices, the votes of both liberal and conservative justices tend to reflect their preferences toward the speech’s ideological grouping and not solely an underlying taste for (or against) greater protection for expression. These results suggest the importance of new research programs aimed at evaluating how other cognitive biases identified in experimental work may influence judicial behavior in actual court decisions.

A significant undiscussed problem with the leading conceptualization of ideologically based judicial behavior, Jeffrey Segal and Harold Spaeth’s attitudinal model, is its lack of theory. This problem leads to circular reasoning, ad hoc coding adjustments, and inaccurate characterizations and explanations of case outcomes, judicial votes and ideologies, and trends in judicial behavior. A values-based theory of ideology, such as the cultural theory pioneered by Mary Douglas, Michael Thompson, Aaron Wildavsky, and others, can help remedy this problem. Applying this cultural theory to First Amendment cases, we find that political cultures valuing equality, order, and liberty provide a more accurate account of judicial decisions than labeling them liberal or conservative.

I examine the relationship between judicial federalism and state-level representation. I develop a framework in which federal courts establish a federal “floor” in a policy area, thus creating an asymmetry—states with lower levels of policy must shift policy to the floor, whereas states with higher levels of policy above the floor are unaffected. I use the framework to recast the “countermajoritarian difficulty” as an issue of federalism. To illustrate the framework, I present a quantitative analysis of the legalization of same-sex marriage in all 50 states, using data on public opinion, federal and state judicial decisions, and state-level policy.

At the intersection of behavioral and institutional studies of policy making lie a series of questions about how elite choices affect mass public opinion. Scholars have considered how judicial decisions—especially US Supreme Court decisions—affect individuals’ support for specific policy positions. These studies yield a series of competing findings. Whereas past research uses opinion surveys to assess how individuals’ opinions are shaped, we believe that modern techniques for analyzing social media provide analytic leverage that traditional approaches do not offer. We present a framework for employing Twitter data to study mass opinion discourse. We find that the Supreme Court’s decisions relating to same-sex marriage in 2013 had significant effects on how the public discussed same-sex marriage and had a polarizing effect on mass opinion. We conclude by connecting these findings and our analyses to larger problems and debates in the area of democratic deliberation and big-data analysis.

Judicial empowerment is often cited as a driver of transnational governance, particularly in the European Union. In this view, lower national courts enthusiastically began referring cases to the European Court of Justice to acquire new powers of judicial review. Revisiting this argument, I argue that path dependent, everyday practices within domestic judiciaries stemming from insufficient training in European Union law, workload pressures, and cultural aversions to judicial review can resist Europeanization even when it would lead to empowerment. The argument is evaluated via a critical case study of judicial practice in Italy that is placed in a broader comparative context.

The legislature wields multiple tools to limit judicial power, but scholars have little information about how judges interpret variant threats and which they find most concerning. To provide insight, we conduct original interviews regarding legislative threats to courts with over two dozen sitting federal judges, representing all tiers of the federal judiciary. We find that judges have a nuanced understanding of threats and tend to identify components of legislative proposals that threaten formal institutional powers as more concerning than those challenging policy set by judges. This distinction has broad implications for our understanding of judicial behavior at the federal level.

Employing a matching design on US state supreme court vacancies and replacements from 1970 to 2016, I demonstrate that patterns of judicial replacement are gendered. Vacancies made by women are filled by women at a greater rate than vacancies made by men, and vacancies made by men are filled by men at a greater rate than vacancies made by women. To examine whether these patterns of replacement have systematically suppressed or advantaged the selection of women judges, I compare judicial selections to the gender composition of lawyers. Women are selected to state supreme courts at rates that parallel the gender diversity of lawyers over time, which suggests that gendered patterns of replacement have neither advantaged nor excluded women from state supreme courts in the aggregate.

Does merit selection work? Existing evidence on institutional performance compares outcomes of interest across selection mechanisms, which does not account for the two-stage process that makes merit selection unique. Using information obtained from public records requests, this article analyzes the determinants of commission and gubernatorial selections from relevant candidate pools. The evidence suggests that although commissions and governors seem to select on certain qualifications, women are disadvantaged at the commission stage and partisanship is relevant at both stages. The results have important implications for our understanding of merit selection’s institutional performance and the broader judicial selection debate.

While many scholars have focused on the relationship shared between the Supreme Court and lower courts, fewer have studied how those outside the judicial branch implement court policy. This study examines how police implemented a major shift in vehicle search law after the Supreme Court placed limits on search incident to arrest. Comprehensive traffic-stop data from two states are relied upon for time series intervention analyses to test the decision’s impact. Evidence of the Court’s influence is found in seriously limiting searches incident to arrest and expanding the use of alternative searches as a means to circumvent the ruling.

In 2006, the Bush administration directed nine US attorneys to resign. This decision was a partial cause of the attorney general’s departure from the administration, and it prompted investigations and congressional hearings. Seen as largely ad hoc, we argue that theory predicts a more systematic decision-making process. We investigate this empirically and find, consistent with literature on principal-agent theories and bureaucracy, that performance on easily monitored metrics and adverse-selection concerns predict the firings. We explore the implications of these findings for efforts to centralize decision-making in the Department of Justice and to exert political control over US attorneys.

The previous literature debates whether rising rates of dissent are best explained by changes in court leadership and the composition of justices or by greater judicial discretion and changes in agenda. This article examines the influential hypotheses derived from the literature in the relevant and testable European case of the Supreme Court of Norway. It shows that the rising rate of dissent in the Court in the 1990s was mainly catalyzed by fundamental changes to the Court’s discretionary power and by its newfound agenda to work more actively with the development of the law and the protection of human rights.

Despite being a dominant explanation of judicial independence in democracies for over a decade, the “insurance” model has received little systematic attention. I argue that how we conceptualize democracy is especially important for analyses of judicial independence employing this insurance framework, demanding more careful attention from scholars. I illustrate that empirical results are contingent on specific conceptualizations by replicating the single existing study examining the insurance model across democracies globally. In doing so, I demonstrate that existing findings are largely driven by classifying electoral authoritarian regimes like Kazakhstan and Russia as democracies.