Kevin T. McGuire

The Least Dangerous Branch Revisited: New Evidence on Supreme Court Responsiveness to Public Preferences

With competing assumptions and alternative empirical models, scholars have come to rather different conclusions about the impact of public preferences on the decisions of the U.S. Supreme Court. Some have found the justices to be attentive to mass opinion, while others have judged it to be irrelevant. Across this divide, however, one assumption is widely shared; that is, political scientists generally agree upon how best to measure the Courts outputs. In this analysis, we employ an alternative estimate of the justices’ liberalism, one which we think better reflects the underlying ideological tenor of their policies. With data from 1953 to 1996, we compare time-series models using different indicators of the Supreme Courts aggregate liberalism. Our results suggest that, in addition to being motivated by their own preferences, the justices are highly responsive to public mood, as well.

Repeat Players in the Supreme Court: The Role of Experienced Lawyers in Litigation Success

How important are lawyers in the decision making of the U.S. Supreme Court? Although legal expertise has long been assumed to benefit certain litigants, the frequency with which lawyers appear before the Court has not been directly measured. In this article, I argue that, quite apart from the status of different litigants, lawyers can be viewed as repeat players who affect judicial outcomes. Using data from the U.S. Supreme Court Judicial Data Base with data from the United States Reports, I propose and test a theory in which the informational needs of the Court are better met by more credible litigators. Thus, for example, a more experienced lawyer significantly raises the probability of a partys success. The findings testify to the efficacy of experienced counsel, irrespective of the parties they represent.

Lawyers, Organized Interests, and the Law of Obscenity: Agenda Setting in the Supreme Court.

Each year thousands of cases and litigants come to the Supreme Court. How can the Court find the most important cases to decide? The law of obscenity illustrates particularly well the Courts problem as it constructs its plenary agenda. Using data drawn from petitions for certiorari and jurisdictional statements filed with the Supreme Court from 1955 to 1987, we formulate and test a model of case selection in which professional obscenity lawyers and organized interests figure as critical elements in the process of agenda building. We also encounter strong evidence of the Courts differential treatment of several different litigants. Moreover, the calculus of selection changed markedly over time, as the Court itself changed; the Burger Court and Warren Court weighed several of the criteria quite differently.

Explaining Executive Success in the U.S. Supreme Court

The solicitor general is widely believed to occupy a special status among the parties appearing in the U.S. Supreme Court. A broad array of theo retical advantages are thought to contribute to the federal governments influence, but scholars have no direct evidence of their impact. More importantly, virtually all existing research has failed to measure directly the influence of those advantages across other parties, as well. Estimating a series of probit models of executive success in the Court under both Democratic and Republican administrations, I test the impact of one such advantage, litigation experience, measured for all parties across all cases. The results suggest that, notwithstanding the conventional wisdom, there is nothing distinctive about the solicitor generals influence. Thus, exist ing explanations regarding the solicitor generals institutional prestige appear to overstate the importance of the executives role in the Court.

ISSUE FLUIDITY ON THE U.S. SUPREME COURT

In making decisions on the merits, the members of the U.S. Supreme Court are often willing to provide authoritative answers to questions that have not been asked and to disregard issues that the parties have presented. What accounts for these forms of issue fluidity? Analyzing data from the 1988 term of the Court, we find that issue transformation is quite common, occurring in roughly half of the cases on the plenary agenda. We propose models of both issue discovery and issue suppression that, while successful in explaining how the justices select issues, suggest that these two forms of fluidity result from largely different influences.

The Supreme Court Bar : Legal Elites in the Washington Community

Who represents litigants in the Supreme Court of the United States? Kevin T. McGuire shows that the most sophisticated of them have the advantage of representation by an elite counsel made up of former clerks to the justices, alumni of the Office of the Solicitor General, partners in powerful Washington law firms, and public interest lawyers, all of whom serve as gatekeepers to the Court.In this study, the first to characterize the bar of the Supreme Court as a whole, McGuire uses survey, archival, and interview data to explore the history and social structure of the community of Supreme Court specialists. In so doing, he assesses the strategic politics of Supreme Court practice, the ways in which dominant litigators can shape the Courts decisions, and what the existence of such an elite implies for judicial fairness.

Lawyers and the U.S. Supreme Court: The Washington Community and Legal Elites

The past several decades have witnessed tremendous growth in the number of professional representatives in the Washington community. Despite a wealth of research that testifies to the importance of these experts in the legislative and executive branches, we know comparatively little regarding sophisticated representation in the judicial context. Is there an identifiable group of specialized representatives in the U.S. Supreme Court? Under the rubric of network theory, I examine the bar of the Court and the patterns of association within it. With survey data from lawyers who participated in Supreme Court litigation during the 1986 term, I develop a predictive model that suggests that the lawyers in the Court are a discrete collection of representatives, strongly anchored in Washington, DC. While many are connected through legal education, geography, and generational affinity, the core of that group-former law clerks to the justices, alumni of the Solicitor Generals Office, and the lawyers of the leading law firms in Washington-are the prominent experts within that network.

Measuring Policy Content on the U.S. Supreme Court

Political scientists have developed increasingly sophisticated understandings of the influences on Supreme Court decision making. Yet, much less attention has been paid to empirical measures of the Courts ideological output. We develop a theory of the interactions between rational litigants, lower court judges, and Supreme Court justices. We argue that the most common measure of the Supreme Courts ideological output—whether the Courts decision is liberal or conservative—suffers from systematic bias. We trace this bias empirically and explain the undesirable consequences it has for empirical analyses of judicial behavior. Specifically, we show that, although the Courts preferences are positively correlated with the ideological direction of the justices’ decision to reverse a lower court, the attitudes of the justices are negatively related—and significantly so—to the ideological direction of outcomes that affirm lower court decisions. We also offer a solution that allows scholars to work around this “affirmance bias.”

Issues, Agendas, and Decision Making on the Supreme Court

In the process of agenda setting, the U.S. Supreme Court is limited to selecting from among only those cases brought before it. Despite this limitation, the justices possess considerable discretion and can reshape the issues in a case as a means of advancing their policy preferences. With data drawn from the Courts opinions, we find that, over the past twenty-five years, the justices have evinced a frequent willingness to expand the issues on their plenary docket and resolve questions not formally presented by the parties. We conclude that, notwithstanding informal norms that disapprove of this practice, issue fluidity is an important component in a continuous program of agenda building.

Congress, the Supreme Court, and the Flag

Congress frequently seeks to reverse the policies of the U.S. Supreme Court. Much is known about the circumstances in which lawmakers confront the Court and whether they are likely to succeed. Still, we do not know how individual members of Congress make these decisions. Why do some mem bers defer to judicial policymaking, while others openly oppose it? The case of the Flag Protection Amendment of 1990, considered in response to the Courts decisions on the issue of flag burning, provides an illustrative setting in which to examine this question. Despite evidence that congres sional reaction to judicial policy is distinctive, our model of the vote sug gests that the nature of institutional conflict does not shape the decision. Rather, members largely reflect ideological and constituent preferences when deciding whether to reverse the Court.