Jeffrey R. Lax

Gay Rights in the States: Public Opinion and Policy Responsiveness

We study the effects of policy-specific public opinion on state adoption of policies affecting gays and lesbians, and the factors that condition this relationship. Using national surveys and advances in opinion estimation, we create new estimates of state-level support for eight policies, including civil unions and nondiscrimination laws. We differentiate between responsiveness to opinion and congruence with opinion majorities. We find a high degree of responsiveness, controlling for interest group pressure and the ideology of voters and elected officials. Policy salience strongly increases the influence of policy-specific opinion (directly and relative to general voter ideology). There is, however, a surprising amount of noncongruence—for some policies, even clear supermajority support seems insufficient for adoption. When noncongruent, policy tends to be more conservative than desired by voters; that is, there is little progay policy bias. We find little to no evidence that state political institutions affect policy responsiveness or congruence.

Public Opinion and Senate Confirmation of Supreme Court Nominees

Does public opinion influence Supreme Court confirmation politics? We present the first direct evidence that state-level public opinion on whether a particular Supreme Court nominee should be confirmed affects the roll call votes of senators. Using national polls and applying recent advances in opinion estimation, we produce state-of-the-art estimates of public support for the confirmation of nine recent Supreme Court nominees in all 50 states. We find that greater home-state public support does significantly and strikingly increase the probability that a senator will vote to approve a nominee, even controlling for other predictors of roll call voting. These results establish a systematic and powerful link between constituency opinion and voting on Supreme Court nominees. We connect this finding to larger debates on the role of majoritarianism and representation.

Constructing Legal Rules on Appellate Courts

Appellate courts make policy, not only by hearing cases themselves, but by establishing legal rules for the disposition of future cases. The problem is that such courts are generally multimember, or collegial, courts. If different judges prefer different rules, can a collegial court establish meaningful legal rules? Can preferences that take the form of legal rules be aggregated? I use a “case-space” model to show that there will exist a collegial rule that captures majoritarian preferences, and to show that there will exist a median rule even if there is no single median judge. I show how collegial rules can differ from the rules of individual judges and how judicial institutions (such as appellate review and the power to write separate opinions) affect the stability and enforceability of legal rules. These results are discussed in light of fundamental debates between legal and political perspectives on judicial behavior.

Certiorari and Compliance in the Judicial Hierarchy Discretion, Reputation and the Rule of Four

I develop a formal model of the interaction between auditing by the Supreme Court (certiorari) and compliance by the lower courts, presenting three challenges to the existing literature. First, I show that even discretionary certiorari (the Court can choose which cases to hear) only goes so far in inducing compliance. Second, the literature often treats the Court as a unitary actor, ignoring the Rule of Four (only four votes are needed to grant certiorari). This rule is generally assumed to limit majoritarian dominance - this is a puzzle given that the rule itself is subject to majority control. I show that it actually increases majority power by increasing lower court compliance. Finally, while sincere behavior is often taken for granted at the Supreme Court level, I show that potential non-compliance creates heretofore unrecognized incentives for the justices to conceal their true preferences, so as to induce greater compliance. They can exploit even minimal uncertainty to manipulate asymmetric information in a signaling game of strategic reputation building, further increasing compliance under the Rule of Four.

Political Constraints on Legal Doctrine: How Hierarchy Shapes the Law

When higher court judges attempt to assert control over lower-court decision making, do such hierarchical politics shape legal doctrine? Using a “case-space” model of choice between determinate doctrines (rules) and more flexible doctrines (standards), I argue that the structure of doctrine affects the application of and compliance with doctrine by lower courts, and this in turn affects choice among doctrinal structures. Doctrinal choice, legal complexity, lower court discretion, and the allocation of judicial resources are shown to depend on hierarchical conflict, the transparency of decisions, sensitivity to case facts, judicial expertise, salience of the issue area, and issue complexity. These incentives have counterintuitive effects on lower court discretion and on doctrinal specificity, and they create odd patterns of ideological and doctrinal alignment. Ignoring these incentives undercuts our understandings of lower court compliance, of judicial ideology, and of the effects of collegiality on law. 1

Measuring the Political Salience of Supreme Court Cases

While Supreme Court cases are generally salient or important, some are many degrees more important than others. A wide range of theoretical and empirical work throughout the study of judicial politics implicates this varying salience. Some work considers salience a variable to be explained, perhaps with judicial behavior the explanatory factor. The currently dominant measure of salience is the existence of newspaper coverage of a decision, but decisions themselves are an act of judicial politics. Because this coverage measure is affected only after a decision is announced, using it limits the types of inferences we can draw about salience. We develop a measure of latent salience, one that builds on existing work, but that also explicitly incorporates and models predecision information. This measure has the potential to ameliorate concerns of causal inference, put research findings on sounder footing, and add to our understanding of judicial behavior.

Legal Doctrine on Collegial Courts

Appellate courts, which have the most control over legal doctrine, tend to operate through collegial (multimember) decision making. How does this collegiality affect their choice of legal doctrine? Can decisions by appellate courts be expected to result in a meaningful collegial rule? How do such collegial rules differ from the rules of individual judges? We explore these questions and show that collegiality has important implications for the structure and content of legal rules, as well as for the coherence, determinacy, and complexity of legal doctrine. We provide conditions for the occurrence of these doctrinal attributes in the output of collegial courts. Finally, we consider the connection between the problems that arise in the collegial aggregation of a set of legal rules and those previously noted in the collegial application of a single, fixed legal rule.

Bargaining Power in the Supreme Court: Evidence from Opinion Assignment and Vote Switching

How can we assess relative bargaining power within the Supreme Court? Justices cast two votes in every case, one during the initial conference and one on the final merits of the case. Between these two votes, a justice is assigned to draft the majority opinion. We argue that vote switching can be used to detect the power of opinion authors over opinion content. Bargaining models make different predictions for opinion content and therefore for when other justices in the initial majority should be more or less likely to defect from initial positions. We derive hypotheses for how opinion authorship should affect vote switching and find that authorship has striking effects on switching. Authors thus have disproportionate influence and by extension so do chief justices, who make most assignments. This evidence is compatible with only the “author influence” class of bargaining models, with particular support for one model within this class.

The Three Prongs of a Jurisprudential Regimes Test: A Response to Kritzer and Richards

I n ‘‘Legal Constraints on Supreme Court Decision Making: Do Jurisprudential Regimes Exist?’’, we explored whether one can say that jurisprudential regime change occurred in Supreme Court decision making—whether key legal precedents led to changes in how justices voted. We found that the standard test, a Chow test of coefficient change, used in Kritzer and Richards’s research design, is strikingly overconfident in finding that a change has occurred in voting across cases before and after the precedent. Rather than making a Type-1 error of finding regime change when none exists 5% of the time, the test does so sometimes close to 100% of the time, even though the data has been randomly shuffled so that no systematic difference can exist between the before and after cases. We appreciate Kritzer and Richards’s openmindedness about our inquiry into their findings and are grateful for their thoughtful responses (now and while we worked on our original paper). We also appreciate the opportunity to clarify our findings, respond to their arguments (old and new), and to present supplemental results that answer, we hope, the questions they raised. Kritzer and Richards state that our paper focuses on only one of the three prongs of their argument, the significance test of regime change, whereas they now clarify that the second and third elements are actually of great (greater?) importance. They have also supplemented their findings with a more sophisticated test of regime change. We discuss each of these three components, including their new statistical evidence, below.