Interest groups often post about their judicial advocacy on social media. We argue that they do so for two main reasons. First, providing information about the courts on social media builds the group’s credibility as a source of information with policymakers, media and the public. Second, social media provides a way to claim credit for litigation activity and outcomes, which can increase membership and aid in fundraising. Using original datasets of millions of tweets and Facebook posts by interest groups, we provide evidence that interest groups use social media for public education and to credit claim for their litigation activity.

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.

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.

What strategies do judges employ when they anticipate review? Constrained judges behave strategically by using particular instruments—like language complexity—when authoring opinions. Prior studies suggest that judges use complexity in anticipation of legislative hostility. Similarly, the threat of review and reversal may spur opinion complexity. This study examines variations in circuit court opinions resulting from precedent treatment and Supreme Court preferences. When a circuit negatively treats a Supreme Court precedent that the justices prefer or a circuit positively treats a precedent that the justices dislike, opinion complexity should increase. These hypotheses find support, suggesting that circuits strategically insulate using opinion complexity.

How do political actors use rhetoric after an initial policy battle? We explore factors that lead Supreme Court justices to integrate disagreeable rhetoric into opinions. Although disagreeable language has negative consequences, we posit that justices pay this cost for issues with high personal significance. At the same time, we argue that integrating disagreeable rhetoric has a deleterious effect on the institution by reducing majority coalition size. Examining opinions from 1946 to 2011 using text-based measures of disagreeable rhetoric, we model the language of opinion writing as well as explore the consequences for coalition size. Our findings suggest serious implications for democratic institutions and political rhetoric.

Psychological scholarship on personality is uniting with political science to redefine existing theories. This is clearly the case with research on judicial behavior and the US Supreme Court. But if this new approach is to survive and thrive, it must employ measures equal to the task. We show that Supreme Court Individual Personality Estimates, which seek to estimate justices’ personalities by examining their concurring opinions, suffer from a number of important methodological deficits that critically limit their usefulness. We briefly discuss what kinds of improved personality measures scholars should use instead and offer an improved set of estimates for one trait with an application that demonstrates our cautionary tale.

The first, hidden stage of the Supreme Court’s agenda-setting process is the formation of the “discuss list,” the small set of cases actually considered in conference. Yet few have systematically considered the operation of and the influences on this critical initial phase of decision making. No systematic, empirical work makes comparisons over time of how features of cases shape the makeup of the chief justice’s discuss list. Here, we examine the composition of the discuss list through a multivariate analysis of all paid petitions for certiorari filed in October Term 1939, 1968, and 1982. We are thereby able to compare the tendencies and efficacy of three long-serving chief justices—Hughes, Warren, and Burger—in making up the discuss list. And, methodologically, we present an alternative to the “observed-value” and the “representative-case” methods of calculating effect sizes for second differences, with software to implement our proposal.

Building on the empirical portrait of federal judicial selection processes and outcomes in the 113th Congress published in part 1, we now turn to in-depth analyses, drawing on extensive interview data, of the confirmation battle over confirmations to the DC Circuit Court of Appeals, filibuster reform (the nuclear option) and its consequences, the role of the blue slip system in contemporary judicial selection, case studies of selection successes and failures, and the historic impact of the Obama appointments record on patterns of diversity and partisanship on the federal bench.

Scholars studying judicial behavior have identified a host of factors theoretically and empirically connected to judicial decision making. One recent theory identifies economic conditions—which have implications for the decisions of voters and politicians—as influencing the voting behavior of US Supreme Court justices. Yet the US Supreme Court is a unique judicial institution addressing limited—though indisputably important—economic cases every year. State courts, on the other hand, address a multitude of issues every year with economic ramifications. Building on the rich body of literature examining state courts of last resort, I analyze whether judges, across a variety of methods for judicial selection and retention, respond to temporary changes in the state of the economy. Results indicate that the responses of state supreme court judges to changes in the state of the economy are conditional on the electoral vulnerability of the justice. This research thus offers considerable insight into judicial behavior under different selection mechanisms and the conditional influence of the state of the economy.

What explains expansions to the federal judiciary? Whereas existing research focuses on unified government as an explanation, we argue ideological proximity between institutions involved in the expansion process more accurately predicts judicial expansions. We examine whether Congress chose to add seats to each federal district or circuit court annually from 1937 to 2012 and find expansions are more likely when (1) the ideological distance between chambers of Congress is smaller and (2) the ideological distance between Congress and individual district or circuit courts is greater. These findings suggest the administration of federal courts is influenced by the political concerns in another branch of government, raising important questions about judicial independence.

Do people turn on those who turn to the courts? Using a survey experiment, we find people have significantly more negative attitudes toward personal injury litigants than other types of claimants, even when they believe the claimant is injured and mostly not at fault. Moreover, our subjects were not anti-claim, anti-hiring a lawyer, or even anti-government program. Instead, they were distinctively anti-litigant.

As the chief litigator for the US government, the solicitor general plays a crucial role in the Supreme Court decision-making process. The justices and solicitor general share a mutually beneficial relationship that is reinforced by the solicitor general’s willingness to provide legal advice when asked. In this article, we examine whether and how this relationship changes when the solicitor general files a formal “confession of error.” Using data on confessions filed between the 1979 and 2014 terms, we find the justices are significantly less likely to support the solicitor general’s position at multiple stages of the Court’s decision-making process if the solicitor general confesses error in light of a policy change. This punishment is harshest when the solicitor general provides advice as an amicus curiae participant, but it is only temporary. These results provide new insight into the scope and limitations of benefits allotted to the Court’s “tenth justice.”

Supreme Court influence depends greatly on the responses of lower court judges to its precedent. Justices employ numerous strategies to obtain lower court deference to their decisions, including the provocative practice of relying upon foreign law. Referred to as “constitutional cross-fertilization” when used in constitutional interpretation, this practice is labeled by critics as a threat to American democracy. Research suggests that the Court uses such references strategically to prop up controversial and ideologically charged decisions, and that they obtain a benefit in the form of increased citations. These studies do not tell us if the Court gains lower court deference. I contend that, in constitutional cases, lower court judges will not find reliance upon such sources persuasive; rather, they will regard these references with disdain. My findings support my argument. Contrary to the justices’ intentions, reliance upon foreign law in constitutional cases is associated with an increased probability of negative, as opposed to positive, treatment. Justices incur significant costs from participating in the global rights dialogue.

Despite the Supreme Court’s lack of direct electoral accountability, voters may factor its outputs into their voting decisions because elected representatives can affect the Court’s powers and composition. In this paper, we uncover an ironic predicament that faces candidates running on reforming this institution. Citizens who possess higher levels of diffuse support for the Court are more likely to rank it as an important factor in their voting logic. But because this diffuse support has sorted along partisan lines, candidate messaging about reform may not motivate partisans who have lost support for the Court because they view it as less important than other pressing issues. Thus, although Democrats are sympathetic to reform, Democratic candidates may have weak incentives to promote reform given low levels of diffuse support among their constituents. This dynamic mitigates against the possibility of a public or congressional backlash against the Court, preserving the status quo.

House deliberations over healthcare legislation in 1798 show members of the Fifth US Congress debating the constitutional basis of small government assumptions about states’ rights and federal power, asking why the regime’s principles should not be understood as requiring direct federal intervention in the lives of socially and economically vulnerable groups irrespective of states’ authority. Extending the current scholarly debate over nationalization and state building in early American thought, I suggest that questions alleged by many scholars to have been excluded from political and constitutional debate in the early republic were, in cases like this, robustly contested.

Free speech is essential to democracy and political participation. But scholars hold competing expectations about whether courts will protect free speech in similar ways for extremism. Drawing on free speech cases from high courts in Australia, Canada, India, and South Africa, as well as from the European Court of Human Rights, I show that judges are substantially less likely to support free speech in cases involving extremist claimants or extreme speech. Moreover, I demonstrate how judges tailor arguments in response to concerns about extremism. This evidence has implications for our understanding of judicial behavior and the role that courts play in preserving democracy.

After democratic transitions, many Eastern European countries reformed their political institutions in a piecemeal fashion. Focusing on the Bulgarian Constitutional Court from 1992 to 2012 and the Soviet-style procurator general, we analyze how legal reforms operate in practice in transitional societies. Using original data, we find that judges are influenced by the powerful and unaccountable procurator general. Judges’ decisions to strike down laws also are guided by alignment with their or their appointers’ political preferences and the opinions of interested parties in amicus briefs. The study has implications about interbranch relations and the role of procurator generals in constitutional review.

Debates over prison privatization neglect to consider differences in legal access across private and public prisons. I argue that private prisons experience lower filing rates than public prisons, and that cases brought against publicly traded private prison companies are less likely to be dismissed and more likely to succeed than similar cases against public prisons. I find evidence consistent with these claims, a result that is not driven by other explanations of judicial decision-making. This paper has implications for skepticism of private interests in public policymaking, and encourages investigation of access to justice for inmates in public and private custody.

Judicial ethics and conduct guides emphasize dignity, decorum, patience, and courtesy, contributing to an understanding of judging as rational, detached, and unemotional. However, these are also interactional capacities, implying the presence of emotion and emotion work. Empirical research finds that judicial officers express considerable awareness of the need for judicial emotional capacities and emotion work and undertake a range of strategies to manage emotion. This judicial experience shows that available guidance does not adequately address emotion in judicial officers’ everyday work. Improved guidance will explicitly recognize judicial work as an interactional space, generating emotion and demanding emotion work.

To compare court decisions in a systematic way, it is typically necessary to first read these decisions and then apply legal methods to them. Measurement models that support analysts in this manual labor usually rely on judges’ voting records. Since these data are often not available, we instead propose a latent-variable model that uses the widely available references in court decisions to measure the decisions’ latent position in their common case-space. We showcase our model in the context of forum shopping and forum selling of Germany’s lower courts.