Signals from the Tenth Justice: The Political Role of the Solicitor General in Supreme Court Decision Making (original) (raw)
Related papers
Executive Branch Socialization and Deference on the U.S. Supreme Court
Law & Society Review, 2012
Are Supreme Court justices with prior experience in the executive branch more likely to defer to the president in separation of powers cases? While previous research has suggested that such background may signal judicial policy preferences but does not shape them, I argue here that institutional socialization may indeed increase future judicial deference to the president. Using an original data set of executive power cases decided between 1942 and 2007, I model justice-votes to test this hypothesis. I uncover three noteworthy findings: (1) a clear correlation between prior executive branch experience and support for the executive branch, (2) the degree of this support intensifies as executive branch tenure increases, a finding congruent with a socialization hypothesis, and (3) contrary to received wisdom, executive powers cases possess a clear ideological dimension, in line with the expectations of the attitudinal model. In 2005, on the well-respected legal blog Opinio Juris, law professor Julian Ku reflected on the likelihood that then Judge Roberts would be a strong supporter of executive power once on the Supreme Court. After noting that Roberts had clerked for former Chief Justice Rehnquist, also a supporter of a robust executive branch, Ku stated that "like Jackson, who served as Attorney-General for FDR, and Rehnquist, who served as an Assistant Attorney General for Nixon, Roberts' main government experience has been in the executive branch as associate White House Counsel and Deputy Solicitor General" (Ku 2005). The implication of this statement was clear: as a former member of the executive branch, Judge Roberts was expected to be more deferential to the president in cases involving executive power. The notion that background affects behavior might seem an obvious truth. When it comes to judicial decision-making, however, particularly for hard cases at the appellate court level, the study of The author wishes to thank Jeff Yates, Brett Curry, and the anonymous reviewers for their helpful comments and suggestions on previous versions of this article.
Socialization or Signaling? Executive Branch Experience on the Supreme Court
Are Supreme Court justices with experience in the executive branch more likely to defer to the President in separation-of-powers cases? Revisiting the potential effects of career background on judicial decision-making, I hypothesize that for Supreme Court cases involving executive power, institutional socialization effects from time served on the executive branch may increase future judicial deference.Using an original data set of executive power cases decided between 1942 and 2006, I model justice-votes to test this hypothesis. I uncover three noteworthy findings: (1) prior executive branch experience does correlate with stronger support for the president’s position; (2) contrary to prior assumptions, separation-of-powers cases do possess a strong ideological dimension; and (3) there is some evidence that socialization effects explain this correlation. These findings suggest that legal scholars should pay greater attention to judicial background when there are good theoretical reasons for doing so.
Selecting Influence? The Solicitor General and the Supreme Court
2007
Scholars have devoted a great deal of research to investigating the role and influence of the U.S. Solicitor General (SG) as amicus curiae in the Supreme Court. Yet, we know little about the SG’s decision to file an amicus brief and how this relates to the SG’s success on the merits. We fill this void by examining legal, political, and administrative factors that affect the SG’s decision to participate as amicus curiae. We subject our hypotheses to empirical testing utilizing data on the 1953-1999 Supreme Court terms by linking the SG’s decision to file an amicus brief to the SG’s ultimate success on the merits, employing a Heckman-style selection model. We find that the SG’s decision to file an amicus brief, and the SG’s success on the merits, is influenced by legal, political, and administrative considerations, suggesting that the SG is best viewed through the incorporation of a variety of theoretical perspectives.
Judicial Ideology and the Selection of Disputes for U.S. Supreme Court Adjudication
Journal of Empirical Legal Studies, 2013
In political science, the well-known "attitudinal model" of legal decision making dictates that judges' sincere policy preferences drive legal outcomes. In contrast, the celebrated "selection hypothesis" from the law and economics literature suggests that litigants carefully consider factors affecting potential case success (including judicial ideology) and accordingly choose, in the name of efficiency, to settle or not pursue cases in which legal outcomes can be readily predicted. Thus, judges end up adjudicating a nonrandom set of cases that, in the typical situation, should not lend themselves to ideological judicial decision making. From this perspective, the influence of Supreme Court justices' ideological preferences on outcomes could be obviated by the forward-thinking decisions of mindful litigants. We are left with two dominant theories on jurisprudential outcomes that appear to be at odds with each other. We endeavor to address this situation by incorporating litigation case sorting considerations into a basic attitudinal account of Supreme Court justice decision making in environmental cases. Our primary thesis is that the influence of judicial ideology on legal outcomes is conditioned on case sorting decisions (by both litigants and justices) that precede the justices' voting decisions on the merits. We augment our assessment of this thesis by evaluating our basic model on a subset of cases involving the Court's most formidable litigator-the federal government. We find that in both scenarios, the influence of justices' attitudes on their merits voting is indeed conditioned on case sorting. We conclude that the effect of justices' attitudes on Supreme Court policy making likely works in both direct and indirect ways in that their known ideological proclivities may lead to the strategic sorting of cases for Supreme Court adjudication.
Southeastern Political Review, 1996
This study focuses on the relationship between the Solicitor General and the Supreme Court in cases involving the federal government as a direct party in litigation. Particular attention is given to the impact ofpresidential appointments on the success of the federal government in litigation. The analyses indicate that there are direrences in success rates for the federal government when we control for the effects of different presidential administrations, diflerent solicitors general, issue areas, and changes in the Court's ideological composition over time. Mu Itivariate analysis demonstrates that changes in the Supreme Court brought about by presidential appointment combined with the ideological position taken by the solicitor general in the case has a significant impact on the success of the federal government in litigation.
Do legal elites—lawyers admitted to federal appellate bars—perceive the Supreme Court as a “political” institution? Legal elites differentiate themselves from the mass public in the amount and sources of information about the Court. They also hold near-universal perceptions of Court legitimacy, a result we use to derive competing expectations rooted in positivity theory and motivated reasoning theory. Survey data show that a sizable share of legal elites perceive the Court as political in its decision making, while a minority perceive the Court as activist and influenced by external political forces. Ideological disagreement with the Court’s outputs significantly elevates political perceptions of decision making, while it exhibits a null and moderate impact on perceptions of activism and external influence, respectively. Our results provide support for each theoretical perspective. Elites engage in what we call “local delegitimization” of specific decision-making procedures rather than “global delegitimization” of the institution itself.
The Supreme Court, the Solicitor General, and the Separation of Powers
American Politics Research, 2003
Supreme Court justices attempt to rule as closely as possible to their policy preferences, but their decisions are not unconstrained. Rather, justices pay attention to the preferences of other actors—including those external to the Court. Whereas most scholars focus on the relationship between the Court and Congress, this article focuses on the relationship between the Court and the executive. Specifically, it argues that justices seek information about how the administration wants them to act because, like Congress, it can sanction the Court for making decisions that diverge from administration policies. Certainly this information can be gathered in a number of ways, but this article argues that when not readily available, justices can obtain it by inviting the solicitor general to appear before the Court as amicus curiae. The findings provide the first systematic evidence that justices actively seek information about the preferences of other actors during their decision-making pro...