To what degree is judicial agenda setting top-down or bottom-up? Existing studies lack evidence of the frequency or magnitude of these two processes. We conceptualize the judicial agenda as the legal questions/rules receiving judicial attention, measure it using citations to Supreme Court opinions, and estimate vector autoregression models to identify how each level of court initiates or responds to variation in attention to precedent at other levels of the judiciary. The Supreme Court exerts some top-down control, but agenda setting is more often bottom-up, revealing lower courts are more integral to setting the federal judicial agenda than previously understood.

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.

Scholars recognize that judicial review depends upon judicial independence: an independent court is more likely to invalidate a statute it opposes than a nonindependent court. But scholars have lost that the previous statement is a conditional relationship, in which judicial independence moderates the relationship between a court’s ideological preferences and its decision to strike statutes. I model this conditional relationship using the US Supreme Court’s constitutional decisions on important federal statutes. The analysis reveals that judicial independence is best modeled as a conditional predictor of judicial review and that modeling judicial independence as an additive predictor risks false negative results.

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.

This paper develops and tests a theory that in states with judicial elections, criminal justice outcomes will be more punitive than in states without elections. Leveraging a data set previously unused in the judicial politics literature, I estimate time-series regressions of state sentencing and incarceration rates over a 38-year period while distinguishing between types of judicial elections to establish support for the theory. I find that states where trial judges are reelected are generally more punitive than states without judicial elections, and this punitiveness is in response to the public’s ideological preferences, indicating that elections serve as an important judicial accountability mechanism for citizens.

This issue of the Journal of Law and Courts features articles devoted to measuring the personality traits of US Supreme Court justices. In this brief comment, I attempt to do the following. First, I briefly summarize Hall et al. (2021) and Black et al. (2021). Here I pay special attention to some of the methodological issues that give rise to the disagreement between these authors. Second, I provide some general thoughts on the enterprise of attempting to measure personality traits of US Supreme Court justices. While I am generally skeptical of the utility of such an enterprise, I could be convinced of its value. Accordingly, I attempt to lay out what a skeptic like myself would like to see in order to be convinced of the intellectual value added of work in this area.

Models of behavior on the US Supreme Court almost universally assume that justices’ behavior depends, at least in part, on the characteristics of individual justices. However, few prior studies have attempted to assess these characteristics beyond ideological preferences. In contrast, we apply recent advances in machine learning to develop and validate measures of the Big Five personality traits for Supreme Court justices serving during the 1946 through 2015 terms based on the language in their written opinions. We then conduct an empirical application to demonstrate the importance of these Supreme Court Individual Personality Estimates and discuss their proper use.

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.

In another article in this issue, Black et al. discuss their preferred approach to estimating Supreme Court justices’ Big Five personality traits from written text and provide several critiques of the approach of Hall et al. In this rejoinder, we show that Black et al.’s critiques are substantially without merit, their preferred approach suffers from many of the same drawbacks that they project onto our approach, their specific method of implementing their preferred approach runs afoul of many contemporary social scientific norms, our use of concurrences to estimate personality traits is far more justifiable than they suggest (especially in contrast to their use of lower court opinions), and their substantive critiques reflect a potential misunderstanding of the nature of conscientiousness. Nonetheless, we also acknowledge their broader point regarding the state-of-the-art textual analysis methodology vis-à-vis the estimation of personality traits, and we provide some constructive suggestions for the path forward.