I conduct a quantitative evaluation of the “countermajoritarian difficulty” by examining the relationship between public opinion, state policy, and judicial review in constitutional challenges to state abortion statutes in the period before Roe v. Wade. I find that state and lower federal court judges tended to invalidate statutes in states with high levels of public support for moving policy away from the status quo, and judges did not strike down statutes in states where majorities firmly supported the status quo. These results suggest the importance of creating a role for state and lower federal courts in evaluating the countermajoritarian difficulty.

One of the central roles of the Supreme Court is to settle controversies over social facts, but little is known about the prevalence of these rulings or the justifications for them offered by the Court. An analysis of the landmark decisions from 1900 to 2015 reveals that most include a ruling on a disputed social fact, though the Court rarely offers an explicit justification. Rulings from different ideological perspectives invoke social facts at the same rate but with distinct patterns of justification, illustrating a division in approach to this vital aspect of the Court’s work.

Presidents regularly fill judicial vacancies through promotion. However, the effect of promotion on judicial behavior has been largely unexplored. I theorize that promotion affects judicial behavior through psychological motives associated with social identity. I test this expectation by examining the decisions of promoted court of appeals judges. Promoted judges are less likely to vote to reverse, but this effect fades as appellate court experience increases. The effect is stronger when promoted judges review former colleagues. I argue that social identity theory best explains these patterns and discuss the importance of promotion and social identity for the study of judicial behavior.

This article provides the first empirical analysis of court decisions that review the exercise of executive power, or judicial review, in Singapore, a single-party-dominated state known for its use of law to achieve economic progress and curtail civil-political liberties. Our findings suggest that judicial review could have the effect of buttressing the ruling party’s legitimacy while deferring to the executive’s curtailment of dissent and civil-political liberties, thus reinforcing the political status quo. We also find judicial review to be a scarcely utilized recourse. The article contributes to the study of law and courts, particularly administrative law in nonliberal regimes.

While many studies have examined party capability theory, few have empirically examined the potential causal mechanisms underlying the theory. We do this by combining quantitative analyses with qualitative data drawn from interviews with over 60 US courts of appeals judges. We find that the “haves,” or repeat players, hire better lawyers and that these lawyers independently contribute to the success of the repeat players. We also find that the advantages of the haves extend to all parties, though to a lesser extent than the advantages enjoyed by the US government. These results remain robust after controlling for ideology.

Scholars sometimes refer to the civil jury decision-making process as a “black box,” because researchers cannot view juries’ interior workings. However, state institutions structure the environment in which disputes arise and determine the rules courts apply, while environmental factors condition courts’ responses to claims. This article utilizes an original data set of civil jury verdicts in five states to examine the influence of cross-state institutional variation and trial location on courts’ dispute resolution and resource allocation functions. The results indicate that institutions and trial location significantly influence patterns of winners and losers, while case-specific factors predict the amount awarded.

Existing theory suggests that under neo-corporatist governance, civil society groups are less likely to take the state to court. However, a comparative analysis of the use of legal strategies across a number of environmental nongovernmental organizations (ENGOs) in France presents a counterintuitive finding. Drawing on new data on more than 200 cases taken by these ENGOs, the analysis finds that the groups that are most incorporated in policy making are also the most active litigants against the Environment Ministry in the Conseil d’Etat. This article tests a number of theoretical explanations to account for this result. It finds that the neo-corporatization of the rules determining access to justice as well as the presence of certain agent-level characteristics helps to explain when and why groups mobilize the law.

International law is an evolving body of jurisprudence characterized by ambiguities, gaps, and lack of precedent. I argue that the propensity of the prosecution or the defense to emerge victorious on issues on appeal will depend on the legal issues they raise. I introduce a new database on the outcomes of every extant appeal filed by both the prosecution and the defense at the international criminal tribunals for the former Yugoslavia and Rwanda. I find that the defense is more often likely to win on appeal when it appeals issues that are dynamic and inchoate in international law.

When do judges initiate public action outside the courtroom? What kinds of political activities do they engage in? What are the consequences of their interactions with social and political actors? This article investigates judges’ efforts to influence law and policy as opinion leaders, protesters, and network builders. In light of recent devevelopments in Turkey, I argue that intrajudicial conflict, that is, the increasing salience of hitherto dormant tensions inside the judiciary, is the primary source of off-bench judicial mobilization. Participants in off-bench judicial mobilization seek to maintain, reform, or transform judicial institutions in ways that enhance their ideational and strategic goals.

The power of government to take private property for public use has been a frequent source of political disquiet because of the tension it creates with notions of individual rights ingrained in liberal society. The backlash against takings after Kelo offers a case in point. Existing research has focused on the public’s distaste for the taking of homes and has thus missed an important cause of the backlash: the purpose for which property is taken. I utilize a combination of experimental and observational methods to advance our understanding of this important issue, finding that purpose is crucial in shaping attitudes toward takings.

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.

Unable to directly control the policy articulated by the Supreme Court, dissenting justices are faced with the challenge of finding alternative ways to pursue their policy goals. We argue that one strategy available to them is to use their power over the language of a dissenting opinion to increase the media attention paid to a case. Our results show that cases with negative dissents attract more media coverage, which creates a variety of mechanisms through which a dissenter’s policy preferences could be realized, such as inducing Congress to take action, influencing public debate on the issue, and provoking further litigation. This finding ultimately suggests that dissenters, while disadvantaged, are not powerless to affect legal policy.

This article examines the impact of the presence of a straight-ticket voting option (STVO) on roll-off in judicial elections, including elections for state supreme courts, intermediate courts of appeals, and urban trial courts. The core hypothesis is that STVO decreases roll-off with partisan ballots but increases roll-off when nonpartisan and retention ballots are used, and these effects should be stronger for elections to less visible, lower-level courts. The analysis finds some support for the hypothesis for state supreme courts but not for the two types of lower courts. It is unclear why there is this inconsistency.

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.

Since the passage of the 1998 Human Rights Act, popular anxiety about increasing judicial power over immigration has led to a very public debate about the future of British constitutionalism. Drawing on an analysis of case law, 747 media articles, and interviews with human rights advocates, legal scholars, and government officials, I trace the development of a popular constitutionalism in the United Kingdom, fueled by resistance to international human rights law and directed at repealing the act. I demonstrate how the tabloid media amplifies jurisprudentially insignificant cases, especially regarding “foreign criminals,” and erodes political support for the entrenchment of rights.