judicial politics FINAL

who are the parties in a trial court

plaintiff & defendant

who are the parties in an appellate court

appellant & appellee

who are the parties in the Supreme Court

petitioner & respondent

who has the right of appeal to US appellate courts

losing party in US district court

what jurisdiction do appellate courts have

appellate; can’t initiate cases here, can overrule or affirm trial court’s decisions

how many judges decide cases in appellate courts

panels of 3 judges

what is an en banc case

majority of judges in circuit vote for a larger panel of judges to decide case

what is the primary role of an appellate court

review application of law by trial court & correct legal errors; usually defer to trial courts for determinations of facts unless there’s abuse of discretion

what are the 5 main steps in supreme court decisions

1. setting the agenda

2. oral argument

3. conference vote

4. circulation of draft opinions

5. opinion announced

what discretion does the Supreme Court have

appellate & discretionary jurisdiction

what must petitioners file to ask the Court to decide their case

writ of certiorari

what is the rule of four

at least 4 justices must vote in favor of granting certiorari

why does the rule of 4 exist

• 4 prevents majority bloc from having control over everything

• Norm of court behavior; not required by law

how many petitions are yearly filed with SCOTUS

over 7k

how many cases does SCOTUS hear oral arguments for each year

~80

what is full plenary review

case is decided with full briefing & oral argument; without full plenary review, SCOTUS reviews cases based on briefs without oral argument

what 2 types of cases are the Court most likely to grant cert for

circuit split & issues of national importance

what is the merit docket

cases are decided on the final merit after granting writ of certiorari

what is per curiam

unsigned opinions of the Court, don’t identify majority author

what is the emergency/shadow docket

• expedited matters decided by Court; don’t resolve final merits of case

• Most decisions decided without full plenary review & issued as brief per curiam opinions

• Ex: request for stay of lower federal court final merits decision, request to determine validity of injunction by lower federal court, request for stay of execution pending appeal, etc.

how many applications for adjudication did SCOTUS receive under emergency docket in 2024-2025

114

how many merit decisions did SCOTUS issue in 2024-2025 term

67

how long does each side typically have in oral argument

30 mins

what is the conference vote in SCOTUS proceedings

Justices secretly deliberate in conference to vote on cases’ merits; only justices allowed to attend

what is the order of when the justices speak in the conference vote

Chief justice gets to speak/vote first, in order of seniority afterwards

who writes majority opinions in SCOTUS cases

Chief justice chooses writer of majority opinion if he votes with majority; If chief justice doesn’t vote with majority, most senior justice in majority chooses writer

what options do justices have in the circulation of draft opinions

• write/join majority opinion

  • Justice agrees about who should win the case & why

• write/join regular concurrence

  • Justice signs onto majority opinion & agrees with who should win & why

  • Gives additional reasons for supporting the majority stance

• write/join special concurrence (concurring in judgment)

  • Justice agrees with majority about who should win but disagrees about why

• write/join dissent

  • Justice disagrees with majority about who wins & why they win/lose

when do SCOTUS terms run

from October to june

what happens if there is no majority outcome in a SCOTUS case

lower court decision continues to be law

what is a plurality opinion

• No clear majority with at least 5 justices since there’s special concurrence

• ex: 4-4-1, 4-1-4, 4-2-3, 4-3-2

• Weakens value of case since there’s no clear opinion for courts to refer to

what is the attitudinal model

• argues that judges’ behavior can be predicted by their policy attitudes

• Perceives judges as motivated by policy goals & unconstrained by law

• Portrays judges as autonomous & free to rule in favor of their own desires

• Judges decide cases according to ideological preferences rather than legal text/precedent

• Judges are ideological & pursue policy goals according to their own ideological preferences

  • Policy preferences = primary influence on judicial decisionmaking

• Law = post-hoc rationalization for judges’ pre-existing preferences

• More unconstrained judges are more free to follow policy preferences

  • SCOTUS = unconstrained due to life tenure/job security, supremacy over other courts

• Research consistently supports that ideology = prevalent influence on judicial decisionmaking

• Other factors influencing decisionmaking = race & gender (in cases involving salient issues relating to those factors)

• theorizes that the main goal of justices is to pursue policy/ideological preferences

• Extralegal factors & social background factors beyond the law can influence decisionmaking aside from ideology

what is the strategic model of judicial decisionmaking

• acknowledges that judges seek to achieve policy goals but have constraints

• Judges act strategically to achieve goals since they can’t simply act according to preferences

• justices pursue policy preferences subject to endogenous & exogenous constraints

• Justices realize their ability to achieve their goals depends on considering others’ preferences, the choices they expect others to make, & institutional context they act in

• Strategic approach rejects these notions central to other views of Court dynamics:

  • Justices = constrained by legal precedent; policy preferences have little influence over actions

  • Justices = unconstrained & free to pursue policy goals

• judges = constrained & may not be able to obtain their most preferred policy preferences

  • Judges must strategize & bargain to maximize policy goals

  • institutions = important constraint on judicial decisionmaking

  • Judges must bargain with & accommodate for other actors’ preferences

  • institutional factors (internal & external) can shape judicial decisionmaking

what is the legal model

• assumes that judges submit to the law when making decisions & have less autonomy

• Assumes that judges leave aside personal preferences & defer to:

  • facts of the case

  • Constitution’s/statute’s plain meaning

  • Framers’ intention

  • Precedent

• judges’ primary goal = principles legal decisionmaking

• Judges set aside policy preferences when deciding cases

• Judges = objective decision makers constrained by law & legal precedent

what were the facts of Craig v. Boren (1976)

• OK passed law prohibiting sale of 3.2% beer to males under 21 & females under 18

• Craig = under 21 male; brought suit with state vender of alcohol (Whitener)

• Claimed that the law violated Equal Protection Clause of 14th Amendment

• Plaintiffs sought declaratory & injunctive relief → wanted SCOTUS to order OK to stop law

• District Court of Oklahoma → OK won, statute upheld as constitutional

• Craig appealed case directly to SCOTUS

• Majority 7 (Brennan), 2 dissent (Burger, Rehnquist)

what were the issues before the Court in Craig v. Boren

• Issue #1 = standing:

  • Craig turned 21 before oral argument

  • Court tossed him out of case due to mootness; outcome doesn’t affect him anymore

  • Whitener claimed economic harm from restricted sales to men; also tried to assert Craig’s constitutional rights

• Issue #2 = legal standard under 14th Amendment

  • Strict scrutiny → law must be narrowly tailored & use least restrictive means to serve compelling government interest

  • Rational basis → law must be reasonable means to achieve legitimate government purpose

• Issue before the Court = what legal standard applies & whether the OK law meets the standard

  • Before this case SCOTUS hadn’t addressed what level of scrutiny should be applied to sex-based discrimination

what was the holding in Craig v. Boren

• Gender discrimination = analyzed under intermediate scrutiny rather than strict scrutiny & rational basis

• Law must further important government interest & use means substantially related to that interest

• OK loses; means weren’t substantially related to government interest

what model of judicial decisionmaking does Craig v. Boren reflect

strategic actor model; justices strategically created intermediate scrutiny since rational basis & strict scrutiny wouldn’t get enough votes

what is the rational choice model of judicial decisionmaking

• actors have goals and deliberately do things to achieve those goals

• SCOTUS wants to maximize ideology preferences

• preferences (not roles/backgrounds) shape behavior

• Judges rule on a case in light of their attitudes & values

before 1935, justices were unlikely to issue opinions other than majority opinions, and the Court’s decisions had more unanimity. why was this & why did it change?

• Norm of unanimity & going along with the majority so the Court can speak as a whole

• Justices began dissenting more due & norms broke due to Harlan Fiske Stone’s leadership

true/false: in the past decade, most SCOTUS decisions have been unanimous

true; not every case is ideologically driven so it’s easier to get consensus from the Court

what are endogenous factors in the strategic actor model

factors within the court that place constraints on the Court; ex: rule of 4, majority vote/opinion

what are endogenous factors in the strategic actor model

factors outside of the court that may influence judicial decisionmaking; ex: legislative response, public opinion

what are types of strategic action under the strategic actor model

• granting/denying certiorari → deciding whether to vote to hear a case

• Altering outcomes → considering how to vote

• Modifying legal rules → considering how to express legal rules/reasonings in opinions

• Collegial games → trying to gain cooperation from other judges

what is an aggressive grant under the strategic actor model

justice foresees that majority of Court has the same preference as them for a case’s outcome & hopes to develop precedent; votes to grant cert

what is a defensive denial under the strategic actor model

justice foresees that majority of Court doesn’t share same preference as them for a case’s outcome; votes to deny cert even though they want to develop precedent

why might a justice be more likely to circulate a threat, suggestion, concurrence, or dissent during opinion drafting

if the justice is ideologically distant from opinion writer, or if the case is of high political salience

during opinion drafting, why might the majority opinion writer be likely to make changes to the draft?

• if the majority coalition is small; want to keep outcome/opinion & accommodate

• if the majority is ideologically heterogeneous/more easy to be broken apart

• if a larger number of threats, suggestions, concurrence, dissents are circulated

what are the 2 theories of influence in the legal model of judicial decisionmaking

sociological & rational choice explanations

what are sociological explanations under the legal model of judicial decisionmaking

norms of behavior guide judges to follow the law; judges = part of legal community that values the law, language of law infuses judicial communication & thinking

what are rational choice explanations under the legal model of judicial decisionmaking

• judges follow law to preserve & enhance legitimacy & institutional influence

• Rule of law provides mechanism to ensure compliance by other courts, institutions, actors

• Judges have goals and may have to incorporate the law to achieve them

• Legitimacy extends from perceptions of principled legal decision making

  • Court lack enforcement power & rely on legitimacy

• Serves as coordination & bargaining tool with other judges

how do jurisprudential regimes view the law

• Law = human institutional construct where judicial decisionmaking operates

• Law isn’t necessarily a purely objective mechanistic operation pointing to just 1 outcome

• Law may not dictate certain outcome except in cases with abundant legal clarity

  • Provides framework that constrains range of outcomes

• Set of legal precedents create institutional legal framework of the law that structures SCOTUS to evaluate key elements of cases in arriving at decisions

what were the facts in Grayned v. Rockford & Chicago Police Dept. v. Mosley

Chicago anti-picketing law prohibited picketing within 150 ft of school except for picketing related to school’s involvement in labor disputes; time, place, manner restriction

what was the holding in Grayned v. Rockford & Chicago Police Dept. v. Mosley

• SCOTUS held law = unconstitutional; content-based restriction must pass strict scrutiny

• Content neutral regulations analyzed under intermediate scrutiny & only require significant government interest

• Unprotected speech analyzed under rational basis scrutiny

• Distinction between content-neutral vs content-based restrictions wasn’t important in judicial decisionmaking before these cases

  • Applied more scrutiny to content-based restrictions after this decision

what are the 2 hypotheses about how levels of scrutiny constrain judicial decisionmaking

• As the level of scrutiny increases, judges are more constrained in decisionmaking

  • Rational basis = least constraining, strict scrutiny = most constraining

• Intermediate scrutiny has lowest level of constraint on judges in decisionmaking

  • Strict scrutiny (gov loses) & rational basis (gov wins) = more constraining on judges

who are one-shotters according to Galanter

have nots; people/organizations that deal with the legal system infrequently; tend to have less resources and are less successful in litigation than repeat players

who are repeat players according to Galanter

• haves; people/organizations that deal with the legal system frequently

• have more resources, more successful in litigation than one-shotters

• More knowledgeable & experienced about legal process & how to tailor arguments to judges

• Higher sense of credibility/reputation; more collegial environment

who are pro se litigants

litigants who are self-represented & have no attorney representation; lack knowledge/experience, at a disadvantage in trying to win their case

who is the solicitor general

• represents federal government before SCOTUS

• 4th highest ranking official in DOJ

• Directly involved in litigation where US government is a party

• Filed amicus curiae when federal government has interest in a case

• Has high win rate before the Court

• Court more likely to grant cert SG when federal government = petitioner or when SG files amicus brief

  • Court repeatedly invites SG to oral argument when an amicus brief is filed

• SG briefs have disproportionate influence on content of Court’s opinions

  • Likely due to credibility, expertise, & deference to president

how are courts passive institutions

they rely on lawyers & litigants to bring legal claims

according to Epstein & Kobylka, how do lawyers & litigants reflect interest groups?

• Strategically determine when to focus on litigation instead of other political efforts

• Strategically choose cases & legal arguments that set agenda for court decision making

• Strategically choose where to file cases

what is percolation

when several lower courts have decided a legal issue & set stage for appellate review

what does Epp argue in The Rights Revolution

advocacy organizations & interest groups help push for legal change & successful litigation; ability to pursue lawsuits depends on resources/structure of advocacy orgs & finances

what does Collins argue about amici briefs?

• justices sometimes refer to amici in opinions, amici sometimes invited to participate in oral argument

• More amici curiae filed on behalf of 1 side relative to the other marginally increases their probability of winning; due to new information & indicator of public opinion

what is an amicus curiae

friend of the court briefs; filed in favor of petitioner or respondent by nonparties

what is the policy cycle of mobilization

• SCOTUS issues decisions in policy area & litigants pursue cases in policy area

• Types of cases SCOTUS hears change over time because different issues become important

• SCOTUS sends signals about what types of cases & policy areas they’re interested in

what is the private enforcement regime

• statutes & policies can create incentives for mobilizing litigation

• When courts make policy, external actors enforce

• When external actors make policy, courts enforce

• Policy enforcement = administrative & private

how do statutes mobilize private litigation

fee shifting & punitive damages

• American Rule → each party pays their own costs & attorney fees

• English Rule → losing party pays winning party’s legal costs