Lawrence Baum

Measuring Policy Change in the U.S. Supreme Court

Measuring the U.S. Supreme Courts policy changes is complicated by change in the content of the cases that come before the Court. I adapt from earlier scholarship a method to correct for changes in case content and use this method to measure change in the Courts support for civil liberties in the 1946–85 terms. Analysis based on this method indicates that because of changes in case content, the average difficulty of reaching a pro-civil liberties result varied during that period. With corrections for case difficulty, the Warren Court of the 1950s appears to have been more conservative, and the Burger Court more liberal, than patterns of case outcomes themselves suggest. This method, while imperfect, has utility for the measurement of policy change in the Supreme Court and other institutions and thus can serve as a building block in analyses of the processes and determinants of change.

Membership Change and Collective Voting Change in the United States Supreme Court

Scholars and other observers of the Supreme Court generally perceive that change in the Courts membership is the primary source of change in its policies and decisional patterns. This article is an effort to test that perception by examining the sources of collective voting change in civil liberties decisions during the 1946-1985 terms of the Court. Focusing on periods of significant change in collective voting behavior during this era, the analysis shows that membership change was the primary source of voting change overall but that change in the voting behavior of continuing members played a major role in producing collective voting change during some periods.

PATTERNS AND SOURCES OF TICKET SPLITTING IN SUBPRESIDENTIAL VOTING

The primary source of divided government in the United States is voters who split their ballots between the parties. Yet there has been little comprehensive examination of either patterns or sources of ticket splitting in recent years. Instead, divergent lines of research have emerged, emphasizing such things as voter partisanship, incumbency, and a “new” (young, well-educated, even partisan) kind of ticket splitter; and their focus has been too often restricted to the atypical president–Congress pair. We seek to unify these research traditions in a comprehensive model of split-ticket voting and to test this model across the partisan ballot in a typical election setting-here, the contests for five Ohio state-wide offices in 1990. The model incorporates partisan strength, candidate visibility, and the individual characteristics that distinguish the “new ticket splitters”. The results support our partisan strength and candidate visibility explanations but provide little support for the emergence of a new type of ticket splitter.

Supreme Court Authority in the Judiciary A Study of Remands

In the relationship between the Supreme Court and lower courts, one important issue is the extent to which lower court judges recognize and respond to the Supreme Courts authority. This article explores the Courts authority through a study of cases remanded by the Court during the 1965-1974 terms. We examine the relationship between the outcomes of cases in the lower courts after Supreme Court remands and several conditions that seem likely to affect the strength of the Courts authority. The statistical results indicate that most of these conditions have a significant impact on outcomes. More broadly, these results provide evidence that the Courts authority is a significant force in shaping the behavior of judges in the lower courts.

Enthusiasm in Teaching

meetings provided a chance to pull together some of my thoughts about the role of the teacher. This essay presents some of those thoughts. Over the years I have learned a good deal from what other teachers say about their work, because their perspectives helped me to think through my own approach to teaching. My hope is that this essay serves readers in the same way. My theme is enthusiasm. When we think about enthusiasm in edu-

Judicial Specialization, Litigant Influence, and Substantive Policy: The Court of Customs and Patent Appeals

Several courts of limited jurisdiction currently exist in the federal judicial system, and new specialized courts have been proposed. Opponents of some specialized courts have pointed to the potential policy implications of judicial specialization, and their arguments merit attention. In this article the effects of specialization on the influence of litigant groups over judicial decisions and on the substance of judicial policy are analyzed in general terms. These effects are then examined in greater depth through a case study of the U.S. Court of Customs and Patent Appeals. The findings are complex, but they indicate that specialization may have a significant impact on judicial behavior. This impact should be taken into account in decisions whether to create courts of limited jurisdiction.

Specialization and Authority Acceptance: The Supreme Court and Lower Federal Courts

Research on organizational behavior suggests that the authority of higher officials for their subordinates is relatively low for subordinates whose work is highly specialized. If this proposition is valid, the Supreme Court should have more limited authority for specialized federal courts than for their generalist counterparts. To test this expectation, citations to the Courts deci sions in patent law were analyzed. It was posited that the former Court of Customs and Patent Appeals (CCPA), a specialized court, cited the Supreme Court in patent cases less often than did the generalist federal courts of appeals. This hypothesis was strongly supported according to several measures of citation frequency. The results emphasize the potential impact of specialization on hierarchical authority in organizations and underline the consequences of specialization for judicial behavior.

Supreme Court Clerkships and "Feeder" Judges*

Because law clerks are integral to the work of the Supreme Court, the selection of clerks is important. Observers of the Court have referred to “feeder judges,” by which we mean court of appeals judges from whom justices draw large numbers of clerks. This article analyzes the feeder-judge phenomenon in the 1976–1985 and 1995–2004 terms of the Court. It verifies that justices do rely heavily on certain court of appeals judges as sources of clerks and that justices differ considerably in the sets of feeder judges from whom they draw clerks. It also shows that there is a strong ideological element to the use of feeder judges by individual justices and that this element has strengthened over time.

Linking Issues to Ideology in the Supreme Court

This article probes explanations for the linkages between Supreme Court justices’ broad ideological stances and their positions in specific issue areas. The justices’ votes in decisions on the takings clause of the Fifth Amendment showed no consistent ideological pattern in the 1937–79 terms but have fallen along clear ideological lines since then. Analysis of relevant evidence indicates that this shift reflected both changes in the content of takings cases and changes in the lineup of political and social groups on takings issues. The shift and its sources suggest a need to rethink the role of the justices’ policy preferences in shaping their choices.

A Review of “When Courts and Congress Collide: The Struggle for Control of America's Judicial System”

Under the Constitution, Congress has a great deal of power over individual federal judges and over the courts on which they serve. In his book, Charles Gardner Geyh seeks to explain why Congress has not made greater use of that power. The relationship between Congress and the federal courts has received a good deal of attention from scholars in political science and law. Some of that scholarship has addressed the issue of explanation on which Geyh focuses. Yet that issue is far from settled. Geyh, a professor of law at Indiana University, does much to advance discussion of the issue. In the process, he provides considerable insight on the relationship between the legislative and judicial branches. In Geyh’s view, despite the array of congressional powers the federal courts have achieved what he calls “customary independence,” “a zone of autonomy that Congress respects in the exercise of its constitutional powers over courts and judges” (11). (Geyh usefully distinguishes between the independence of individual judges and of the courts as institutions.) He is on firm ground. There is room for disagreement about the extent to which Congress has exercised its powers of control, depending in part on how one defines those powers. For instance, Geyh argues that current Senate activism in the selection of judges has strong implications for judicial independence, and some scholars might not see such a strong linkage. But no matter how we define congressional action that impinges on judicial independence, Geyh’s basic premise clearly is accurate: Congress has indeed shown considerable reluctance to exercise its powers (though much less reluctance to threaten their exercise). Why does this customary independence exist? In the book’s introduction, Geyh points to constitutional structure and congressional neglect and indifference as factors helping to shield the judiciary from retaliation. But he argues that the bulk of the explanation lies elsewhere. Specifically, “customs, conventions, or norms” have been the key source for the zone of autonomy (11). Their impact has been reinforced by the judiciary’s willingness to take actions that “protect and promote its independence from Congress” (255). The mutual deference that helps maintain judicial independence is part of a complex “dynamic equilibrium” involving