amer jud final exam

What is a collegial (multimember) court?

A court where multiple judges decide cases together (e.g., Supreme Court, Courts of Appeals). Decisions are shaped by group interaction, negotiation, and opinion‑writing.

How is a collegial court different from a trial court?

Trial courts have a single judge, focus on fact‑finding, and do not rely on group deliberation. Collegial courts focus on law, precedent, and group decision‑making.

What does Supreme Court Rule 10 say?

Certiorari is granted only for compelling reasons, such as:

• Conflicts among lower courts

• Important federal questions

• Lower court decisions that conflict with Supreme Court precedent

• Major legal issues needing clarification
  Rule 10 explicitly says cert is not granted just because a case was wrongly decided.

What is cue theory?

A political science theory that the Supreme Court uses certain “cues” to decide whether to grant cert.

What are the three main cues?

• Federal government is the petitioner

• Conflict among lower courts

• Civil liberties issues
  Fourth cue: Presence of an amicus brief supporting cert.

Why did cue theory not apply well to the Rehnquist Court?

The Rehnquist Court relied less on cues and more on substantive legal issues, ideological considerations, and strategic case selection.

What is an underdog appellant?

A party appealing from a weaker position (e.g., criminal defendants, prisoners).

What is an upperdog appellant?

A party appealing from a position of institutional strength (e.g., government, corporations).

Three Theories of Judicial Decision‑Making

• Small‑Group Analysis

• Attitudinal Model

• Rational Choice Theory

What is small‑group analysis?

A theory focusing on interpersonal dynamics among judges. Judges’ initial views are not fixed and can change through discussion.

Why are personal papers of Justices important?

They reveal behind‑the‑scenes bargaining, vote changes, draft opinions, and interpersonal influence.

What two characteristics most influence judges to change positions?

Personality and intellect.

How does expertise matter?

Judges with reputations in specific areas influence colleagues:

How did COVID affect judicial interaction?

Remote arguments reduced informal interactions, making persuasion and bargaining harder.

Persuasion on the Merits

• Uses legal reasoning and precedent

• Works unless a judge’s views are deeply entrenched

Bargaining

• Not bargaining for votes

• Bargaining over scope, reasoning, and content of opinions

• Goal: consensus

• Brennan’s quote: “What is the most important number?” → Five

Where does bargaining occur?

• Drafting majority opinions

• Circulating drafts

• Negotiating language

• Deciding how broad or narrow the ruling should be

Threat of Sanctions

• Threaten to switch vote

• Threaten to write a strong dissent

• Threaten to go public

What is a “supermedian justice”?

A justice whose ideological position is closest to the center of the Court, giving them outsized influence (e.g., Justice Kennedy).

Why was Kavanaugh considered the swing justice in 2020–21?

His votes most frequently aligned with the majority in closely divided cases.

What was O’Connor’s role in Webster?

She refused to join Rehnquist’s aggressive draft that would have undermined Roe. Her bargaining limited the scope of the decision.

Why is unanimity needed?

To preserve legitimacy, avoid political backlash, and ensure compliance. (Brown v Board)

When is a dissent threatening?

Scalia’s dissents were brilliant but often ineffective because colleagues saw them as overly harsh; only Thomas joined.

Why would a justice “air dirty laundry”?

To pressure colleagues, expose strategic behavior, or influence public opinion. (Dobbs leak theories (motive unknown; theories include ideological pressure or institutional sabotage)

Why less significant in state courts?

• Less media attention

• Smaller audiences

• Less national impact

U.S. Supreme Court Chief Justice Role

• Social leader + task leader

• Influence at conference

• Controls opinion assignment when in majority

• Prefers narrow opinions to maintain coalitions

U.S. Courts of Appeals

• Panels of three judges

• Chief judge has less agenda control

• No certiorari process

• Less power over opinion assignment

State Courts of Last Resort

• Varies by state

• Selection of chief varies: elected, seniority, or chosen by colleagues

• Opinion assignment rules vary

• Personality and political skill matter

Do votes switch?

Yes, but rarely, and usually in one direction (toward the majority).

Why hard to know who switched vote?

Vote changes often occur behind the scenes; revealed only in personal papers.

What is the attitudinal model?

Judges decide cases based on personal policy preferences.

Why is the attudinal model popular among political scientists?

It often appears to match real voting patterns.

Why does it apply only to appellate judges?

Trial judges face constraints: juries, evidence rules, factual records, and risk of reversal.

Criticisms of the attitudinal model?

• Oversimplifies

• Ignores institutional constraints

• Underestimates legal reasoning

• Cannot explain unanimous decisions

What is rational choice theory?

Judges are strategic actors who want their preferred policy to prevail, not just to vote their preference.

What strategies do they consider?

• Will Congress override a statutory ruling?

• Will Congress pursue a constitutional amendment?

• Will the president enforce the ruling?

• How will future courts interpret this?

What is “gaming out” scenarios?

Considering “if‑then” consequences to maximize long‑term impact.

How can dissents be strategic?

They can “invite” Congress or future litigants to revisit issues (e.g., Colegrove → Baker v. Carr).

Did NFIB v Sebelius meet the theories?

yes - Roberts reached an “optimal strategic position”:

• Preserved Court legitimacy

• Roberts’s judicial philosophy (institutionalism) influenced his vote.
  He upheld the ACA under taxing power, not commerce clause.

  Rational Choice Theory

• Federal government involved

• Major national issue

What is the main question of Chapter 7?

Whether a president’s policy views influence the decisions of the judges they appoint — and under what conditions this influence actually occurs.

Why does ideological commitment matter?

Presidents who strongly care about ideology work harder to appoint judges who share their policy goals.

Which presidents were strongly committed to appointing conservative judges?

Examples include Reagan, both Bushes, and Trump.

Which presidents were strongly committed to appointing liberal judges?

FDR, LBJ, Obama, and Biden.

Which presidents were less ideological and more driven by other considerations?

Eisenhower, Nixon (to some extent), and sometimes Clinton (who balanced ideology with diversity and compromise).

What determines how many vacancies a president gets?

• Number of vacancies at the start of the presidency

• Resignations and deaths during the term

• Whether the president serves one or two terms

• Whether Congress passes a judgeship expansion bill

Examples of vacancy numbers at the start of presidencies:

• Clinton: 100

• Obama: 54

• Trump: 105

• Biden: 46

Why does the ideological leaning of each vacancy matter?

Replacing a judge from the opposite party can shift the court’s ideological balance. Replacing a judge from the same party may or may not shift outcomes depending on the new judge’s ideology.

What determines political clout?

• Whether the president’s party controls the Senate

• President’s skill in negotiating with the Senate Judiciary Committee

• Ability to make deals with opposition senators (e.g., “3-for-1” trades on lower court nominees)

What is judicial climate?

The ideological makeup of the court the new judge joins. Examples: Ketanji Brown Jackson entered a 6–3 conservative Supreme Court, limiting her immediate influence

What was the Supreme Court in Jan 2017?

4 liberals, 3 conservatives, 1 swing (Kennedy), Scalia seat vacant.

Key replacements:

• 2017: Gorsuch for Scalia

• 2018: Kavanaugh for Kennedy

• 2020: Barrett for RBG

• 2022: Jackson for Breyer

Biggest ideological shift?

Alito replacing O’Connor in 2006 — moved the Court significantly right.

Supreme Court in 2024?

6 conservatives, 3 liberals.

Lower courts when Obama entered (2009)?

60% Republican appointees, 40% Democratic.

When Obama left (2017)?

60% Democratic, 40% Republican.

When Trump left (2021)?

54% Republican, 45% Democratic.

When Biden leaves (2025)?

60% Democratic, 40% Republican.

Circuit courts in 2009 (Obama start)?

1 Democratic, 10 Republican, 2 split.

By 2017 (Obama end)?

9 Democratic, 4 Republican.

By 2021 (Trump end)?

7 Republican, 5 Democratic, 1 split.

By 2025 (Biden end)?

7 Democratic, 5 Republican, 1 split.

Which presidents had the most liberal judges?

Typically: Carter, Obama, Biden.

Which had the most conservative judges?

Reagan, both Bushes, Trump.

Which were in the middle?

Clinton and sometimes Eisenhower.

Why were Truman’s judges conservative?

Because Truman appointed many judges from the Southern Democratic tradition, which was conservative on many issues.

Trump’s ideology factor?

Very strong — prioritized conservative, young, Federalist Society–approved judges.

Trump’s district court record

• Criminal justice: conservative

• Civil rights/liberties: conservative

• Economic regulation: conservative

Number of vacancies for Trump?

Very high — 105 at start.

Circuit court appointments?

Trump: 54 in 4 years Obama: 55 in 8 years Biden: 45 in 4 years Trump focused heavily on appeals courts because they set national precedent.

How did filibuster reform matter?

• 2013: Democrats eliminated filibuster for lower court nominees

• 2017: Republicans eliminated filibuster for Supreme Court nominees
  This made confirmations much easier for Trump.

Why is Trump’s political clout a puzzle?

He had low approval ratings but extremely high judicial appointment success.

Who was Trump’s “secret weapon”?

Senate Majority Leader Mitch McConnell, who prioritized judicial confirmations.

Judicial environment for Trump judges?

They entered courts already shifting right, amplifying their influence.

Compare Barrett’s influence vs. Jackson’s.

• Barrett joined a 6–3 conservative majority, giving her immediate power.

• Jackson joined the liberal minority, limiting her influence.

Biden’s ideological commitment?

Strong — prioritized diversity, professional background diversity, and progressive legal philosophy. He learned from Obama’s slow start and vowed not to repeat it.

What mistakes did Obama make?

• Slow to nominate judges

• Did not prioritize judicial appointments early

• Allowed many vacancies to remain open

Biden’s criteria for nominees?

• Public defenders

• Civil rights lawyers

• Women and people of color

• Professional diversity

• Liberal legal philosophy

Democratic frustration over Trump’s 3 Supreme Court appointments?
Led to proposals such as:

• Court expansion

• Term limits

• Ethics reforms
  Biden did not support court expansion; none of these proposals succeeded.

How does Biden’s confirmation rate compare historically?

One of the fastest since 1960.

Judicial environment for Biden judges?

They entered courts with many Trump appointees, but Biden’s appointments significantly shifted the balance.

Early history — how did lawyers in the U.S. get legal training?

Through apprenticeships (“reading law”) with practicing attorneys; no formal law schools.

Most prominent demographic characteristic of early lawyers?

White, elite men — overwhelmingly upper‑class.

How was admission to the bar established in the 13 colonies?

Each colony set its own rules; typically required an apprenticeship and approval by local courts.

What happened in Myra Bradwell’s case (Illinois, 1873)?

The Supreme Court upheld Illinois’s refusal to admit her to the bar because she was a woman.

Is there federal constitutional authority to determine who can practice law?

No — admission to the bar is controlled by states, not the federal government.

When did the practice of law become democratized?

Early–mid 19th century, as barriers lowered and more people could enter the profession.

How did democratization happen?

• Growth of undergraduate law courses

• Opening of independent law schools

• Reduced elitism in admissions

• More standardized training

First independent law school?

Harvard, 1816

Who reformed legal education in the 1870s?

Christopher Columbus Langdell at Harvard.

What changes did Langdell introduce?

• Entrance requirements

• Case method

• Socratic teaching

• Standardized curriculum

• Law as a “science”

What degrees emerged?

• LL.B (original)

• Replaced by J.D. in the 1960s

• LL.M for specialization

Major changes in the 20th century?

• Rise of ADR

• 1977: Ban on lawyer advertising eliminated

• Huge increase in women and minorities entering law

• ABA & AALS efforts to professionalize the field

Examples of gender barriers?

• RBG humiliated at Harvard (1956)

• Sandra Day O’Connor could only get a secretary job despite graduating 3rd at Stanford

When did women’s enrollment dramatically increase?

1960s–1970s

What is legal realism?

Movement arguing that law is shaped by social forces, not just logic or precedent.

How did it affect law schools?

Added courses on social science, policy, and real‑world context.

Modern version (Breyer)?

Emphasizes practical consequences and real‑world impact of legal decisions.

2023 law school graduate employment breakdown:

58% private practice

Effects of 2008–09 recession & COVID?

• Fewer applicants

• Lower employment rates

• Some law schools closed

• Recovery began around 2016

Enrollment trends:

• Low 2016–2020

• Uptick in 2021

• Decline again in 2022–23