Articles

"If we knew what we were doing, it wouldn't be called research."

— commonly attributed to Albert Einstein

Manzi, Lucia, and Matthew E.K. Hall. 2017. “Friends You Can Trust: A Signaling Theory of Interest Group Litigation before the U.S. Supreme Court.” Law & Society Review 51(3):704-734.

How do interest groups influence U.S. Supreme Court justices to vote in favor of their preferred outcomes? Following prior research on the influence of the Solicitor General, we develop and expand on the signaling theory of interest group influence via amicus curie briefs. We argue that an interest group’s ideological reputation and the nature of the ideological signal it sends in its brief both function as powerful heuristics that convey information to the justices depending on the justices’ own ideological preferences. When an organization files an amicus brief advocating for an outcome seemingly contrary to its traditional preferences (i.e., an unexpected signal), this signal should be more noticeable and credible than a signal in accordance with a group’s conventional views (i.e., an expected signal). However, unexpected signals should have greater influence on justices who share the brief filer’s preferences. We test our signaling theory on the terms from 1991 through 2002. We find that unexpected signals (but not expected signals) are associated with Supreme Court voting, and the influence of unexpected signals appears to be particularly strong among justices who share the ideological preferences of the brief filer. [PDF]

Khun, James, Matthew E.K. Hall, and Kristen Macher. 2017. “Holding Versus Dicta: Divided Opinion Control on the U.S. Supreme Court.” Political Research Quarterly 70(2):257-268.

Who controls the content of the majority opinion on the U.S. Supreme Court? Previous research offers conflicting views; however, these studies assume that a single justice exerts primary influence over the entire opinion. In contrast, we argue that different justices control holding (the legal determination that sets binding precedent) and dicta (unnecessary comments that lack precedential value). We argue that the bargaining process enables the median justice in the majority coalition to control holding, while the opinion author controls dicta. We test the empirical expectations of our theory on the concurrence behavior of Supreme Court justices: special concurrences reflect disagreement with holding, whereas general concurrences often reflect disagreement with dicta. The results support our theory that the bargaining process divides control over holding and dicta, which can produce ambiguity and confusion in the law. [PDF] [Replication Data]

Hall, Matthew E.K. 2017. “Macro Implementation: Testing the Causal Paths from U.S. Macro Policy to Federal Incarceration.” American Journal of Political Science 61(2):438-455.

Policy implementation is usually studied at the micro level by testing the short-term effects of a specific policy on the behavior of government actors and policy outcomes. This study adopts an alternative approach by examining macro implementation—the cumulative effect of aggregate public policies over time. I employ a variety of methodological techniques to test the influence of macro criminal justice policy on new admissions to federal prison via three mediators: case filings by federal prosecutors, conviction rates in federal district courts, and plea bargaining behavior. I find that cumulative Supreme Court rulings influence the incarceration rate by altering conviction rates in district courts; however, I find only mixed evidence of congressional and presidential influence. The results suggest that U.S. macro policy influences bureaucratic outputs by altering the behavior of subordinate policy implementers; however, the Supreme Court may enjoy an advantage in shaping criminal justice policy. [PDF] [Replication Data]

“The Role of Emotional Language in Briefs before the U.S. Supreme Court,” with Ryan C. Black, Ryan J. Owens, and Eve Ringsmuth. 2016. Journal of Law and Courts 4(2):377-407.

The legal brief is a primary vehicle by which lawyers seek to persuade appellate judges. Despite wide acceptance that briefs are important, empirical scholarship has yet to establish their influence on the Supreme Court or fully explore justices’ preferences regarding them. We argue that emotional language conveys a lack of credibility to justices and thereby diminishes the party’s likelihood of garnering justices’ votes. The data concur. Using an automated textual analysis program, we find that parties who employ less emotional language in their briefs are more likely to win a justice’s vote, a result that holds even after controlling for other features correlated with success, such as case quality. These findings suggest that advocates seeking to influence judges can enhance their credibility and attract justices’ votes by employing measured, objective language. [PDF]

"Judicial Review as Limit on Government Domination: Reframing, Resolving, and Replacing the (Counter)Majoritarian Difficulty." 2016. Perspectives on Politics 14(2):391-409.

For centuries, politicians, activists, and academics have criticized the American system of judicial review as democratically illegitimate. In response, dozens of scholars have striven to justify the institution’s place in a democratic political system. A compelling justification for judicial review must provide a realistic description of its function and a normatively attractive understanding of that function. Unfortunately, the most prominent justifications suffer from empirical or theoretical problems. However, recent empirical evidence suggests an “acquittal theory” that meets both criteria. On this view, courts armed with judicial review can thwart majority will by relieving individuals from government sanctions, but they lack the power to independently impose sanctions. This asymmetry suggests a resolution to the countermajoritarian difficulty that does not rely on judicial wisdom or behavior: the nature of judicial power ensures that judicial review reliably promotes a core democratic value—freedom from government domination—without seriously threatening other democratic values. [PDF]

"Estimating Dynamic Ideal Points for State Supreme Courts," with Jason H. Windett and Jeffrey J. Harden. 2015. Political Analysis 23(3):461-469.

Courts of last resort in the American states offer researchers considerable leverage to develop and test theories about how institutions influence judicial behavior. One measure critical to this research agenda is the individual judges’ preferences, or ideal points, in policy space. Two main strategies for recovering this measure exist in the literature: Brace, Langer, and Hall’s (2000, Measuring preferences of state supreme court judges, Journal of Politics 62(2):387–413) Party-Adjusted Judge Ideology and Bonica and Woodruff’s (2014, A common-space measure of state supreme court ideology, Journal of Law, Economics, & Organization, doi: 10.1093/jleo/ewu016) judicial CFscores. Here, we introduce a third measurement strategy that combines CFscores with item response (IRT) estimates of judicial voting behavior in all fifty-two state courts of last resort from 1995 to 2010. We show that leveraging two distinct sources of information (votes and CFscores) yields a superior estimation strategy. Specifically, we highlight several key advantages of the combined measure: (1) it is estimated dynamically, allowing for the possibility that judges’ ideological leanings change over time and (2) it maps judges into a common space. In a comparison against existing measurement strategies, we find that our measure offers superior performance in predicting judges’ votes. We conclude that it is a valuable tool for advancing the study of judicial politics. [PDF] [Replication Data]

"Judicial Majoritarianism," with Joseph Daniel Ura. 2015. Journal of Politics 77(3):818-832.

For decades, constitutional theorists have confronted the normative problems associated with judicial review by an unelected judiciary; yet some political scientists contend that judicial review actually tends to promote majoritarian interests. We evaluate the majoritarian nature of judicial review and test the political foundations that shape this process. To do so, we construct a statute-centered data set of every important federal law enacted from 1949 through 2008 and estimate the probability of a law being challenged and subsequently invalidated by the Supreme Court. Our methodological approach overcomes problems of selection bias and facilitates a test of judicial majoritarianism and the mechanisms that drive that behavior. We find that the Court tends to invalidate laws with little support from elected officials and that this pattern is primarily driven by the justices’ concern for congressional constraint during the certiorari stage. [PDF] [Replication Data]

"Holding Steady on Shifting Sands: Countermajoritarian Decision Making in the U.S. Courts of Appeals," with Justin Kirkland and Jason Harold Windett. 2015. Public Opinion Quarterly 79(2):504-523.

Empirical claims that US Supreme Court decisions tend to follow public opinion raise important questions about the countermajoritarian role of the American judiciary. Yet, for the vast majority of federal cases, the de facto court of last resort is actually a US court of appeals. We examine the role of public opinion in shaping decisions on these courts. We argue that the courts of appeals’ position in the judicial hierarchy, lack of docket control, and lack of public attention encourage circuit judges to ignore public opinion and adhere to consistent legal rules; however, appeals by federal litigants are strongly associated with public opinion. Consequently, circuit judges actively resist ideological shifts in public opinion, as they issue consistent rulings in the face of varying case facts. Applying multilevel modeling techniques to a data set of courts of appeals decisions from 1952 to 2002, we find strong support for our theory. [PDF]

"Understanding Judicial Power: Divided Government, Institutional Thickness, and High Court Influence on State Incarceration," with Jason Harold Windett. 2015. Journal of Law and Courts 3(1):167-191.

High courts are widely believed to influence the criminal justice system, yet judicial impact varies widely across political and institutional contexts. Here, we seek to identify the factors that constrain judicial influence on state incarceration rates. We find that the preferences of justices on state courts of last resort and the US Supreme Court influence incarceration; however, high-court impact is conditional on two factors. Judicial influence is stronger in states with divided partisan governments and occurs more quickly in states that lack intermediate appellate courts. Our findings suggest that legislative gridlock and institutional thickness significantly constrain judicial impact. [PDF]

"Testing Judicial Power: The Influence of the U.S. Supreme Court on Federal Incarceration." 2015. American Politics Research 43(1):83-108.

The U.S. Supreme Court is traditionally thought to hold little influence over social or political change; however, recent evidence suggests the Court may wield significant power, especially with regard to criminal justice. Most studies evaluate judicial power by examining the effects of individual rulings on the implementation of specific policies, but this approach may overlook the broader impact of courts on society. Instead, I adopt an aggregate approach to test U.S. Supreme Court power. I find that aggregate conservative decision making by the Court is positively associated with long-term shifts in new admissions to U.S. federal prisons. These results suggest the Court possesses significant power to influence important social outcomes, at least in the context of the criminal justice system. [PDF]

"The Semiconstrained Court: Public Opinion, the Separation of Powers, and the U.S. Supreme Court's Fear of Nonimplementation." 2014. American Journal of Political Science 58(2):352-366.

Numerous studies have found that elite and popular preferences influence decision making on the U.S. Supreme Court; yet, uncertainty remains about when, how, and why the Court is constrained by external pressure. I argue the justices are constrained, at least in part, because they fear nonimplementation of their decisions. I test this theory by utilizing a recent study of judicial power, which finds the Court enjoys greater implementation power in “vertical” cases (those involving criminal and civil liability) than in “lateral” cases (all others; e.g., those involving schools or government agencies). I find that Court constraint is strongest in important lateral cases—those cases in which implementation depends on support from nonjudicial actors. My findings suggest that Supreme Court constraint is driven by the justices’ fear of nonimplementation and is, therefore, dependent on institutional context. [PDF] [Replication Data]

"New Data on State Supreme Court Cases," with Jason Harold Windett. 2013. State Politics & Policy Quarterly 13(4): 427-445.

The study of U.S. state supreme courts has been signicantly constrained by a lack of available data. To remedy this deficiency, this article introduces an original dataset of every state supreme court ruling from 1995 through 2010. We utilize automated textual analysis to search the text of thousands of state supreme court decisions and extract critical information on each case. This automated coding approach produces reliable measures of state supreme court decision making when compared to data collected by human coders. We present trends in docket size, dissent rates, and legal issues being heard in front of the court. This new dataset will offer scholars numerous opportunities to expand our knowledge of judicial politics in the American states. [PDF] [Replication Data]

"Keeping the Outliers in Line: Judicial Review of State Laws by the U.S. Supreme Court," with Ryan C. Black. 2013. Social Science Quarterly 94(2):995-409.

Objective. Proponents of the “regime politics” approach argue that the U.S. Supreme Court tends to promote the interests of the dominant partisan coalition even while engaging in seemingly countermajoritarian behavior. These scholars suggest that the Court’s invalidation of state laws is used to enforce a national consensus against outlier states. We argue this claim does not withstand empirical analysis. Method. We employ logistic regression analysis to evaluate the relationship between the invalidation of state laws by the Court and the ideological distance between the sitting national government and the state government that enacted the law. Results. Our analysis fails to find support for the regime enforcement hypothesis; in fact, we find evidence of a negative relationship between ideological distance and invalidation. Conclusions. Our findings suggest that regime politics scholars have underestimated the Court’s countermajoritarian role in reviewing state legislation. [PDF]

"Rethinking Regime Politics." 2012. Law & Social Inquiry 37(4):878-907.

Many recent studies of “regime politics” argue that judicial review is ultimately used to promote the interests of the dominant governing regime. I explore this claim by evaluating whether the invalidation of federal laws by the US Supreme Court fits the empirical expectations of the regime politics approach. I find that the Court frequently invalidates statutes when (1) the ideology of the Court diverges from that of the sitting elected branches (suggesting that the Court does not fear sanctions or nonimplementation), and (2) the ideology of the sitting elected branches converges with that of the elected branches that enacted the statute (suggesting that the Court is defying the sitting elected branches). My findings suggest that the Court does not primarily use judicial review to promote the interests of the dominant governing regime. [PDF]

The Nature of Supreme Court Power. 2011. Cambridge University Press.

Few institutions in the world are credited with initiating and confounding political change on the scale of the United States Supreme Court. The Court is uniquely positioned to enhance or inhibit political reform, enshrine or dismantle social inequalities, and expand or suppress individual rights. Yet despite claims of victory from judicial activists and complaints of undemocratic lawmaking from the Court's critics, numerous studies of the Court assert that it wields little real power. This book examines the nature of Supreme Court power by identifying conditions under which the Court is successful at altering the behavior of state and private actors. Employing a series of longitudinal studies that use quantitative measures of behavior outcomes across a wide range of issue areas, it develops and supports a new theory of Supreme Court power. Matthew E. K. Hall finds that the Court tends to exercise power successfully when lower courts can directly implement its rulings; however, when the Court must rely on non-court actors to implement its decisions, its success depends on the popularity of those decisions. Overall, this theory depicts the Court as a powerful institution, capable of exerting significant influence over social change. [Link to Amazon]

"Randomness Reconsidered: Modeling Random Judicial Assignment in the U.S. Courts of Appeals." 2010. Journal of Empirical Legal Studies 7(3):574-89.

Sunstein et al. (2006) utilized the random assignment of judges to cases in the U.S. Courts of Appeals to estimate the effect of partisanship on these judges without the possibility of bias from unobserved heterogeneity. This article critiques and improves their study by controlling for changes in circuit composition over time, including cases in issue areas that Sunstein et al. omitted, and omitting cases from circuits where judges were not randomly assigned. I find that Sunstein et al. slightly underestimated the effect of partisanship in the courts of appeals, failed to find evidence of partisan effects for issue areas in which judges are affected by partisanship, mistakenly found evidence of partisan effects for issue areas in which judges are not affected by partisanship, and underestimated the degree to which partisanship varies between circuits. Random judicial assignment offers promising possibilities for the study of judicial decision making, but care must be taken in order to reap the benefits of these natural experiments. [PDF]

"Experimental Justice: Random Judicial Assignment and the Partisan Process of Supreme Court Review." 2009. American Politics Research 37(2):195-226.

This study utilizes the random assignment of judges to panels in the U.S. courts of appeals to measure how the partisanship of these judges affects whether or not the Supreme Court agrees to hear a case and subsequently overturns the decision of the lower panel. Results from the study provide evidence of partisan behavior in the Supreme Court review process in several politically salient issue areas between 1995 and 2004. Although most lower court decisions are never reviewed at all, in the cases examined, assigning three Democrats to a court of appeals panel, compared to three Republicans, more than quintupled the chances that the Supreme Court would overturn a decision from that panel. Despite the large magnitude of these effects, the estimates of partisan effects would have been even larger without the utilization of random assignment. [PDF]

“Bringing Down Brown: Super Precedents, Myths of Rediscovery and the Retroactive Canonization of Brown v. Board of Education.” 2010. Journal of Law and Policy 18(2):655-700. [PDF]