Theorizing the U.S. Supreme Court, (with Lewis A. Kornhauser, NYU School of Law) Oxford Research Encyclopedia, Politics, January 2017.
We summarize the formal theoretical literature on Supreme Court decision-making. We focus on two core questions: What does the Supreme Court of the United States do, and how can one model those actions; and, what do the justices of the Supreme Court want, and how can one model those preferences? Given the current state of play in judicial studies, these questions then direct this survey mostly to so-called separation of powers (SOP) models, and to studies of a multi-member (“collegial”) court employing the Supreme Court’s very distinctive and highly unusual voting rule.
The survey makes four main points. First, it sets out a new taxonomy that unifies much of the literature by linking judicial actions, modeling conventions, and the treatment of the status quo. In addition, the taxonomy identifies some models that employ inconsistent assumptions about Supreme Court actions and consequences. Second, the discussion of judicial preferences clarifies the links between judicial actions and judicial preferences. It highlights the relationships between preferences over dispositions, preferences over rules, and preferences over social outcomes. And, it explicates the difference between consequential and expressive preferences. Third, the survey delineates the separate strands of SOP models. It suggests new possibilities for this seemingly well-explored line of inquiry. Fourth, the discussion of voting emphasizes the peculiar characteristics of the Supreme Court’s voting rule. The survey maps the movement from early models that ignored the special features of this rule, to more recent ones that embrace its features and explore the resulting (and unusual) incentive effects.
Are Supreme Court Nominations a Move-the-Median Game?, (with Jonathan P. Kastellec, Princeton University) American Political Science Review, November 2016. Erratum
We conduct a theoretical and empirical re-evaluation of move-the-median (MTM) models of Supreme Court nominations—the one theory of appointment politics that connects presidential selection and senatorial confirmation decisions. We develop a theoretical framework that encompasses the major extant models, formalizing the tradeoff between concerns about the location of the new median justice versus concerns about the ideology of the nominee herself. We then use advances in measurement and scaling to place presidents, senators, justices, and nominees on the same scale, allowing us to test predictions that hold across all model variants. We find very little support for MTM theory. Senators have been much more accommodating of the president’s nominees than MTM theory would suggest—many have been confirmed when the theory predicted they should have been rejected. These errors have been consequential: presidents have selected many nominees who are much more extreme than MTM theory would predict. These results raise serious questions about the adequacy of MTM theory for explaining confirmation politics and have important implications for assessing the ideological composition of the Court.
The Chief Justice and Procedural Power (with Tom Clark, Emory University) in The Chief Justice: Appointment and Influence, edited by David Danelski and Artemus Ward, University of Michigan Press, August 2016.
Associate Justices may acquire influence on the Court through force of intellect, force of personality, political skill, or the good fortune to be ideologically pivotal. And so may the Chief Justice. But, by virtue of the procedural rules employed on the Court, the Chief Justice has access to resources that the other justices do not. The Chief's procedural power is analogous to the powers held by the Speaker of the House, the Senate Majority Leader, or the Chairman of the Rules Committee: these officers have no right of absolute command. Rather, their power lies in the ability to manipulate the decision rules used by the members. Although some Speakers or Majority Leaders or committee chairs display more adroitness than others in using their procedural powers, it is in these special "vantage points" (to use Richard Neustadt's phrase) that their special influence lies. So, we argue, it is with the Chief Justice. Procedural power is the foundation of the Chief's extra impact on the Court.
Does White House Regulatory Review Produce a Chilling Effect and "OIRA Avoidance" in the Agencies?, (with Alex Acs, Princeton University) Presidential Studies Quarterly, September 2013.
What effect does regulatory auditing by the Office of Information and Regulatory Affairs (OIRA) have on the production of regulations in the agencies? In particular, does targeting an agency for heavy regulatory auditing inhibit its production of regulations, a "chilling" effect? Does heavy auditing encourage it to substitute multiple small regulations in place of single large one, "OIRA avoidance"? We present an early empirical analysis of these questions by estimating regulation production functions for federal agencies, using data from the Unified Agenda from 1995 to 2010. We attempt to distinguish the differential effects of regulatory auditing from appointments into the agencies, leveraging off exogenous variation created by independent regulatory commissions. Our data uncover no evidence of a chilling effect in the production of economically significant regulations due to the Bush administration's regulatory auditing, relative to the Clinton or early Obama administrations. Nor do we find any evidence of OIRA avoidance. We do find some evidence that the Bush administration reduced the production of noneconomically significant regulations overall. However, the effect appears to be due to appointments in the agencies. Overall, the results raise questions about the efficacy of presidential efforts to control the regulatory state and how best to evaluate those efforts
Voting for Justices: Change and Continuity in Confirmation Voting 1937-2010 (with Jonathan P. Kastellec, Princeton University, and Jee-Kwang Park, The American University in Cairo) The Journal of Politics, 2013.
The contentiousness of Senate voting on Supreme Court nominations increased dramatically from 1937 to 2010. We identify four potential sources of the increase: (1) changes in the Senate; (2) changes in the nominees; (3) changes in the political environment; and, (4) changes in senators' evaluative criteria. Using new data and improved statistical techniques, we estimate a well-performing model of senators' individual voting choices on Supreme Court nominees. Simulations allow an evaluation of the contribution of the four classes of factors to increased contentiousness. The principal source of increased contentiousness was the combination of increasingly extreme nominees and an increasingly polarized Senate. Also significant was the increased mobilization of interest groups. In sum, increased contentiousness seems largely to reflect the ideological polarization of American political elites.
Vetoes, Bargaining, and Boundary Conditions (edited by Jonathan Katz) Political Analysis, 2012.
"Testing Theories of Congressional-Presidential Interaction with Veto Override Rates" (henceforth "Veto Override Rates") offers several tests of two models of vetoes and finds the models wanting. The paper concludes that something is seriously amiss with the models. In my view, the problem lies not in the models but in the tests. Understanding why the tests miss the mark is helpful in understanding models of veto politics, and more generally in thinking about testing strategies when multiple models analyze different causal mechanisms that hold under different circumstances. I should note immediately that the effort in the paper to think hard about override rates is admirable; it simply does not go far enough.
Going Public When Opinion Is Contested: Evidence From Presidents' Campaigns For Supreme Court Nominees, 1930 - 2009, (with Jee-Kwang Park) Presidential Studies Quarterly, 2011.
The standard "political capital" model of going public assumes the president does not face organized opposition when he takes his case to the public. But often, the president must fight it out against opponents who also go public. To study such situations we propose a new framework, the "opinion contest" model of going public. Then, using new data on going public and interest group mobilization during Supreme Court nominations, we explore the differences between political capital and opinion contest accounts. We find that presidents go public over Supreme Court nominees primarily when groups mobilize against the nominee. Republican presidents have been particularly inclined to do so when their nominee would move the median on the Supreme Court in a conservative direction. When going public, presidents engage in "crafted talk" emphasizing the nominee's positive qualities, not his or her often extreme ideological commitments. Finally, going public is associated with more negative votes in the Senate, not fewer. This is because presidents go public over Supreme Court nominees only when battling an active opposition.
Coding Rules for Coding Presidents "Going Public" on Supreme Court Nominations
Going Public PSQ for Web posting
Scripts for the Paper
Strategic Defiance and Compliance in the U.S. Courts of Appeals (with Chad Westerland, Jeffrey Segal, Lee Epstein, and Scott Comparato) American Journal of Political Science, 2010.
Why do lower courts treat Supreme Court precedents favorably or unfavorably? To address this question, we outline two distinct theoretical frameworks. The first, based on the theory of teams, assumes a shared conception of the judicial role, and emphasizes judicial learning by circuit judges. The second, drawing inspiration from principal-agent theory, assumes pervasive value conflicts among judges, and emphasizes power and control. We use the frameworks to structure an empirical analysis of a random sample of 500 Supreme Court cases, yielding over 10,000 subsequent treatments in the U.S. Courts of Appeals. We find support for both the team-theoretic and agency-theoretic perspectives. The results have important implications for understanding legal change, political control of the judiciary, and strategic litigation.
How Will They Vote? Predicting The Future Behavior of Supreme Court Nominees, 1937-2006 (with Jee-Kwang Park) Journal of Empirical Legal Studies, 2009.
Read Me NSP Scores
Nominate Scaled Perception(NSP) Scores for Supreme Court Nominees 1937-2006 (1st Dimension).xls
Nominate Scaled Perception(NSP) Scores for Supreme Court Nominees 1937-2006 (2nd Dimension).xls
Voting Scores for Supreme Court Justices 1937-2006 (By Issue Area - % of Liberal Votes).xls
Voting Scores for Supreme Court Justices 1937-2006 (By Issue Area - Item Response Scores).xls
Voting Scores for Supreme Court Justices 1937-2006 (By Issue Area - Updated Segal et al 2000 Scores).xls
Previous research suggests the future behavior of nominees to the U.S. Supreme Court is relatively unpredictable, except for civil liberties cases. We devise a new measure of nominees' political ideology that more efficiently uses pre-confirmation information about the nominees. The measure employs Segal-Cover scores (based on content analysis of contemporary newspaper editorials) but also DW-NOMINATE indicators, and is scaled into the DW-NOMINATE space. The measure predicts confirmed nominees' overall immediate, short-term, and longer-term voting behavior, as well as voting in issue-specific domains, much better than previous measures. It is particularly successful for nominees confirmed after 1957.
The Presidential Veto in William Howell and George Edwards (eds) The Oxford Handbook of the American Presidency, Oxford University Press 2009.
This essay reviews what political scientists have, and have not, learned about the use of vetoes, the effects of vetoes, and the significance of the veto power. It briefly reviews the micro-politics of the veto: the strategic logic of the veto as applied to individual pieces of legislation or bargaining episodes between the President and Congress. It more fully reviews the macro-politics of the veto: the effect of structural features of the political environment (like unified or divided party control of the government) on aggregate veto use; the effect of vetoes on presidential popularity; the overall effects of the veto power on bill content (including pork barrel legislation), the legislative productivity of Congress, and the stability of public policy. The essay also discusses methodological problems and solutions in studying the veto or other tools of presidential governance. Finally, the essay points to the possibility of theoretically modeling, and empirically studying, integrated presidential strategy.
"Changing Supreme Court Policy Through Appointments: The Impact of a New Justice," University of Minnesota Law Review (Special Edition).
Different theories of decision making on the U.S. Supreme Court make radically different predictions about the impact of a new justice on the Court. We draw out these predictions and, using a new method for locating average opinion locations in a policy space, test the predictions in a case study: the replacement of Justice Potter Stewart by Justice Sandra Day O'Connor. We find a direct effect of the new justice: O'Connor's opinions were more conservative than Stewart's. In addition, her appearance on the Court induced strong but varying peer effects among the other justices: conservatives wrote somewhat more conservative opinions while liberals wrote somewhat more liberal opinions. These findings appear quite harsh to the Median Voter Model of Supreme Court decision making and diverge in important ways from the predictions of Median Majority and Monopoly Author models. They appear somewhat more friendly to "author influence" theories such as the recent Gravitation Attraction Model. We discuss the implications for the president's ability to shape the Court's policy through appointments. In sum, we see those opportunities as substantial.
Quantitative Political Science in Quantitative Models and Methods: A Tour of the Social Sciences, Andrew Gelman and Jeronimo Cortina (eds), Cambridge University Press, 2009.
This chapter discusses how to formulate simple game theoretic models of politics, derive their empirical implications, test them with quantitative data, and use them to understand real political phenomena. To illustrate, I formulate a new formal model of congressional hearings. I then use the model to explore Senate Judiciary Committee hearings on Supreme Court nominees, emphasizing the role of scandals. The chapter is informal in style, based on lectures to graduate students at Columbia and Princeton, and does not require an understanding of advanced methods.
A Primer on the President’s Legislative Program with Jee-Kwang Park, Princeton University, in Presidential Leadership: The Vortex of Power, Bert Rockman and Richard Waterman (eds), Roxbury Press, 2007.
We review what political scientists have learned about the president's legislative program as a tool of presidential governance. We discuss what is known about the volume of proposals (legislative activism), the content of proposals, Congress's response to proposals, and the policy impact of proposals. We also review existing theory or theoretical notions in the literature. We then propose a new game theoretic model of the presidential program, the "burden sharing" model. The model suggests that presidents should become activists when policy windows are open in Congress and simultaneously the public clamors for major new legislation. We test the model empirically, using counts of proposals from 1963 to 1996 and new data on social movement activism. The data afford some support for the model.
Bargaining and Opinion Assignment on the U.S. Supreme Court (with Jeffrey R. Lax, Columbia University) Journal of Law, Economics, and Organization. 23(2):276-302, 2007.
We formulate a new game-theoretic model of bargaining on the U.S. Supreme Court. In the model, a degree of monopoly power over policy endogenously accrues to the assigned writer despite an "open rule" permitting other justices to make counteroffers. We assume justices are motivated ultimately by a concern for judicial policy, but that the policy impact of an opinion depends partly on its persuasiveness, clarity, and craftsmanship -- its legal quality. The effort-cost of producing a high quality opinion creates a wedge that the assignee can exploit to move an opinion from the median without provoking a winning counter-offer. We use this bargaining model as the foundation for a formal analysis of opinion assignment. Both the bargaining and opinion assignment models display rich and tractable comparative statics, allowing them to explain well-known empirical regularities as well as generate new propositions, within a unified and internally consistent framework.
Appeals Mechanisms, Litigant Selection, and the Structure of Judicial Hierarchies, with Lewis Kornhauser, Institutional Games and the U.S. Supreme Court, edited by Jon Bond, Roy Flemming, and James Rogers, University of Virginia Press, 2006.
Congress and the Macropolitics of Telecommunications Policy, with Grace Roegner Freedman, The Macropolitics of Congress, Scott Adler and John Lapinski (eds), Princeton University Press, 2006.
The Political Economy of the U.S. Presidency, The Handbook of Political Economy, Barry Weingast and Donald Wittman editors, Oxford University Press, 2006.
Decision Rules in a Judicial Hierarchy with Lewis A. Kornhauser, Journal of Institutional and Theoretical Economics, 161(2), 264-292, 2005.
In this paper, we extend the analysis of the consequences of litigant selection on the structure of judicial hierarchies to environments in which litigants may have asymmetric information about the merits of the case. In a prior paper, we constructed a simple model in which, after trial, litigants were fully informed about the merits of the case; we showed that under reasonable circumstances, the optimal judicial hierarchy had three tiers: a trial court, an intermediate appellate court and a supreme court. In this essay we weaken the assumption that the trial reveals to both litigants the appropriate decision in the case even when the court remains ignorant. A three-tiered hierarchy will now reduce errors to zero only under more restrictive conditions. More specifically, we identify three classes of equilibria in a three-tiered hierarchy in which the error rate is zero. The logic of these equilibria differs from the logic of the complete revelation equilibrium. Here, in order to achieve equilibrium, at least one of the inferior courts must not decide cases on the basis of its prior beliefs. Rather, in the absence of an informative signal, an inferior court should decide against the informed litigant in order to exploit that litigant's knowledge. The optimal decisional rule with potentially uninformed litigants thus differs from that when, after trial, both litigants are fully informed.
Rational Choice Attitudinalism? A Review of Epstein, Landes and Posner's The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice, (with Lewis A. Kornhauser, New York University) July 6, 2015.
This essay reviews Epstein, Landes, and Posner's The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice. Their book systematically asks how the role of ideology varies across the tiers of the federal judicial hierarchy. A major finding is that the impact of ideology increases from the bottom to the top of the judicial hierarchy. Their typical methodology formulates an ex ante measure of judicial ideology such as the political party of the appointing president, and demonstrates that this measure correlates with later judicial behavior, often voting on case dispositions. Along the way, they investigate a multitude of topics, including some quite under-explored ones.
We argue that ELP's theory is only weakly connected to their empirical practice, for the latter focuses on the role of ideology in judging while the former says almost nothing about that relationship. In fact, though, their empirical practice does embed a theory of law and ideology, but one quite different from that suggested by the book's rhetoric. In the penultimate section of the essay, we explore this disconnection between ELP's theory, practice, and interpretation. Its origin (we argue) lies in an extremely thin conceptualization of law. We conclude with the issue posed in ELP's final chapter, "The Way Forward," but suggest a rather different path.
Quitting in Protest: A Theory of Presidential Policy Making and Agency Responsef, (with John M. de Figueiredo, Duke University, and David E. Lewis, Vanderbilt University) March 4, 2015.
This paper examines the effects of centralized presidential policy-making, implemented through unilateral executive action, on the willingness of bureaucrats to exert effort and stay in the government. Extending models in organizational economics, we show that policy initiative by the president is a substitute for initiative by civil servants. Yet, total effort is enhanced when both work. Presidential centralization of policy often impels policy-oriented bureaucrats ("zealots") to quit rather than implement presidential policies they dislike. Those most likely to quit are a range of moderate bureaucrats. More extreme bureaucrats may be willing to wait out an opposition president in the hope of tempering future policy when an allied president is elected. As control of the White House alternates between ideologically opposed extreme presidents, policy-minded moderates are stripped from bureaucratic agencies leaving only policy extremists or poorly performing "slackers." These departures degrade policy initiative in moderate agencies.
Public Sector Personnel Economics: Wages, Promotions, and the Competence-Control Trade-off, (with John M. de Figueiredo, Duke University, and David E. Lewis, Vanderbilt University) March 27, 2013.
We model personnel policies in public agencies, examining how wages and promotion standards can partially offset a fundamental contracting problem: the inability of public sector workers to contract on performance, and the inability of political masters to contract on forbearance from meddling. Despite the dual contracting problem, properly constructed personnel policies can encourage intrinsically motivated public sector employees to invest in expertise, seek promotion, remain in the public sector, and develop policy projects. However, doing so requires internal personnel policies that sort "slackers" from "zealots." Personnel policies that accomplish this task are quite different in agencies where acquired expertise has little value in the private sector, and agencies where acquired expertise commands a premium in the private sector. Finally, even with well-designed personnel policies, there remains an inescapable trade-off between political control and expertise acquisition.
Modeling Collegial Courts: Adjudication Equilibria, (with Lewis Kornhauser) August 15, 2010.
We present a formal game theoretic model of adjudication by a collegial court. The model incorporates dispute resolution as well as judicial policy making and indicates the relationship between the two. It explicitly addresses joins, concurrences and dissents, and assumes "judicial" rather than legislative or electoral objectives by the actors. The model makes clear predictions about the plurality opinion?s location in "policy?" space; the case?s dis- position; and the size and composition of the disposition-, join-, and concurrence-coalitions. These elements of adjudication equilibrium vary with the identity of the opinion writer and with the location of the case. In general, the opinion is not located at the ideal policy of the median judge. The model suggests new directions for empirical work on judicial politics.
Bargaining with Mr. Hobbes: Choosing a Sovereign (with Brian Barry, Columbia University) June 14, 2010.
Hobbes conjectured that individuals in the state of nature would quickly and easily select a sovereign. Using modern dynamic bargaining theory, we explore Hobbes?s conjecture. Within a class of bargaining models, we place tight bounds on the conditions under which Hobbes?s conjecture is true. We see these conditions as largely conirming Hobbes's intuitions. We then consider the impact of risk aversion and uncertainty on Hobbes's conjecture. Uncertainty about life under the Sovereign makes agreement more difficult among risk averse Hobbesian bargainers. Somewhat surprisingly, then, a Hobbesian analysis of the sovereign selection problem points to the desireability of institutions that reduce uncertaintly about life under the sovereign. Examples include social insurance and protections for civil liberties.
Endogenous Cost Lobbying: Theory and Evidence (with John M. deFigueiredo) 2006.
Special interests attempt to influence lawmakers through campaign contributions and through informational lobbying. Both avenues have been explored extensively in theoretical models but only the former has received much empirical scrutiny. We provide the first empirical tests of a major class of models of costly legislative lobbying, the Potters-van Winden-Grossman-Helpman (PWGH) signaling model. Using data derived from over 50,000 observations of annual lobbying expenditures by special interest groups in the American states, we find that, as predicted, special interest groups increase lobbying expenditures when the legislature is controlled by "enemies" rather than "friends." In addition, lobbying expenditures vary across states with different budgeting institutions in ways predicted by the model. Overall, the results provide substantial support for the PWGH class of lobbying models.
Modeling Law: Theoretical Implications of Empirical Methods (with Lewis A. Kornhauser) 2005.
We examine a long-standing research program in empirical Political Science, fact-pattern analysis (FPA). We connect FPA to definitions of legal rules in jurisprudence and positive political theory. Foundationally, theoretical treatments view rules as functions partitioning case spaces into equivalence classes. Connecting FPA to formal theory has two advantages: first, many elements of the traditional understanding of legal rules become interpretable in terms of FPA, and vice versa. Second, the methodological issues in empirical FPA become much clearer. In particular, the similarity between FPA and related work in artifical intelligence, expert systems, and machine learning becomes obvious. On this basis, following Kastellec 2005, we critique logit, probit, and disciminant analysis-based FPA as less likely to uncover interpretable legal rules than other techniques developed to induce decision trees from data. As noted by Kastellec, classification and regression trees (CART) appear particularly promising in the legal context. We note the possibility of applying CART-based FPA to many areas of the law, with potentially significant applications in legal education and legal practice. We then examine recent attempts to use FPA to uncover changes in “legal regimes.” We suggest that CART could be employed more successfully in this task. We then examine attempts to use FPA in the long-standing “law vs. preferences” debate in Political Science. In our view, this debate as presently framed is unlikely to be productive. We illustrate our points with estimations using simulated data.
"The Samizdat Corner"
Strategic Endorsements (with Joon Pyo Jung, Young-Nam University, Tae-Ku, South Korea) 1994.
We model low-information reasoning in political settings. We examine the situation in which a decision maker faces a hidden offer from a monopoly agenda setter, with interested third parties offering costless signals in the form of endorsements. Strategies and outcomes depend on the location of proposer, endorsers, choosers, and status quo, as well as uncertainty about preferences. Broadly speaking, though, the presence of an endorser often allows the proposer and the chooser to strike efficient bargains they could not otherwise reach. Surprisingly, the chooser is often better off relying on endorsements than becoming fully informed. These findings help explain why decision makers often rely on endorsements and why, perhaps, the institutions of take-it-or-leave-it bargaining is common in politics. They also suggest that the presence or absence of appropriately located cue-givers can affect how well democratic institutions operate.
New Avenues for Modeling Judicial Politics 1994. Figures
Sequential Veto Bargaining (with Susan Elmes) 1994.
We study lawmaking by a legislature and an executive, which we model as a process of sequential bargaining under incomplete information. The model provides an explanantion for well-known patterns in the use of the veto. It also provides an explanation for previously unexplained patterns and generates new hypotheses about presidential-congressional relations. The model allows us to evaluate the institutional stakes in veto bargaining in the American system of separated powers and in other systems of presidential government. This class of bargaining problem appears to be new in the literature and would seem to have a wider application in political settings.
The Greatest Hits of Judicial Politics
This is an idiosyncratic view and doesn't pretend to be anything else. Nor is it encyclopedic. Hence, I apologize to anyone who might feel slighted by the omission of their work, outraged by the neglect of work they believe important, or infuriated by the inclusion of work they find misguided. No slights were intended and oversights abound.