Lee Epstein

Measuring Issue Salience

The concept of issue salience has figured prominently in many studies of American political life. Long lines of research have taught us that both citizens and political elites may respond differently to issues that are salient to them than to those that are not. Yet analysts making such claims about elite actors face a fundamental problem that their counterparts in mass behavior do not: they cannot survey, say, members of the Supreme Court to ascertain those cases that are especially salient to the justices. Rather, scholars must rely on surrogates for issue salience-surrogates that are fraught with problems and that have led to disparate research results. Accordingly, we offer an alternative approach to measure issue salience for elite actors: the coverage the media affords to a given issue. We argue that this approach has substantial benefits over those employed in the past. Most notably, it provides a reproducible, valid, and transportable method of assessing whether the particular actors under investigation view an issue as salient or not. In making the case for our measure we focus on Supreme Court justices but we are sanguine about its applicability to other political actors

Ideological Values and the Votes of U.S. Supreme Court Justices Revisited

Segal and Cover (1989) analyzed the content of newspaper editorials to devise measures of the ideological values of the justices of the U.S. Supreme Court. Because their measures came from sources independent of the judicial vote, scholars have widely adopted them. This note updates, backdates, and extends the Segal and Cover research by adding the two Bush appointees and the seven Roosevelt and four Truman nominees whose service extended beyond the start of the Vinson Court. While we find that the ideological values of the Eisenhower through Bush appointees correlate strongly with votes cast in economic and civil liberties cases, the results are less robust for justices appointed by Roosevelt and Truman.

The Changing Dynamics of Senate Voting on Supreme Court Nominees

A near-universal consensus exists that the nomination of Robert Bork in 1987 triggered a new regime in the Senates voting over presidential nominees—a regime that deemphasizes ethics, competence, and integrity and stresses instead politics, philosophy, and ideology. Nonetheless, this conventional wisdom remains largely untested. In this paper we explore the extent to which the Bork nomination has affected the decisions of U.S. senators. To do so, we modernize, update, and backdate the standard account of confirmation politics offered by Cameron, Cover, and Segal (1990) to cover all candidates for the Supreme Court from Hugo L. Black in 1937 through John G. Roberts, Jr. in 2005. Our results confirm conventional wisdom about the Bork nomination but with two notable caveats. First, while the importance of ideology has reached new heights, the Senates emphasis on this factor had its genesis some three decades earlier, in the 1950s. Second, while ideology is of paramount concern to senators, a candidates professional merit also remains a significant determinant of success in the Senate.

Toward a Strategic Revolution in Judicial Politics: A Look Back, A Look Ahead

As papers presented at recent disciplinary conferences and articles published in major political science journals reveal, the field of judicial politics is undergoing a sea change. Variants of the social-psychological paradigm, which have long dominated thinking about law and courts, are giving way to approaches grounded in assumptions in rationality. More to the point, ever-growing numbers of scholars are now invoking the strategic account to understand judicial politics. In what follows, we investigate this “strategic revolution.” We begin by providing an intellectual history of the field, with special emphasis on why judicial specialists resisted strategic analysis for so long and why they are now (re)turning to it in ever-increasing numbers. Next, we consider the ways that analysts have begun to put the strategic account to work. This is an important task, for debates are already emerging over the “best” way to invoke the account to study judicial politics. We take the position that there is no one “right” way but rather four different approaches-all of which have the potential to provide us with important insights into law and courts.

Do Political Preferences Change? A Longitudinal Study of U.S. Supreme Court Justices

Do the political preferences of U.S. Supreme Court justices change over time? Judicial specialists are virtually unanimous in their response: The occasional anomaly notwithstanding, most jurists evince consistent voting behavior over the course of their careers. Still, for all the research that presupposes the consistency of preferences, it is startling to find that scholars have yet to explore rigorously the assumption of stability. We fill this gap by describing the behavioral patterns of the 16 justices who sat on the U.S. Supreme Court for 10 or more terms, and began and completed their service some-time between the 1937 and 1993 terms. The data reveal that many experienced significant change over time-a result with important implications for virtually all longitudinal work on the Court.

Debunking the Myth of Interest Group Invincibility in the Courts

Research on interest group litigation has provoked a reevaluation of the conventional wisdom about the study of pressure group activity and judicial politics. Nevertheless, the notion that interest groups are intrepid litigators that rarely lose to nongroup adversaries persists unchallenged and unscathed. We seek to determine if groups are, in fact, as invincible as the literature suggests. Several findings emerge that may undermine conventional wisdom about the relative efficacy of group-sponsored litigation. Most important is that groups are no more likely than nongroups to win, at least in U.S. District Courts. Based on this and other results, we draw a number of conclusions about interest group litigation and the direction into which future study might head.

The Rise of Conservative Interest Group Litigation

Research on interest group litigation long has focused almost exclusively on liberal groups. This examination undertakes an analysis of conservative group use of the courts during the Burger Court era. Contrary to widespread expectation, conservative groups litigate in a strategic fashion but do so through the more limited form of participation--the amicus curiae brief--which they view as an effective lobbying device. In fact, conservative groups have used the amicus curiae brief with increasing frequency since the mid-1970s.

The Supreme Court and Criminal Justice Disputes: A Neo-Institutional Perspective

This study conceptualizes the U.S. Supreme Court as a political institution whose decisionmaking behavior over time can be effectively explained and predicted. A four-variable model is constructed as a means of better understanding the Courts policy outputs in criminal justice disputes. This model represents Court decisions as a function of the institutions political composition, the generally stable attitudes of its members, its policymaking priorities, and the political environment. The results indicate that the model has substantial explanatory and predictive capacity when applied to Supreme Court criminal rights cases from 1946 to 1986.

The norm of prior judicial experience and its consequences for career diversity on the U.S. Supreme Court

Introduction 906 I. The Norm of Prior Judicial Experience 909 A. Evidence for the Existence of the Norm 909 B. Career Homogeneity Resulting from the Norm 917 1. Occupation at Time of Appointment 918 2. Homogeneity of Career Paths 927 C . D iscussion 937 II. The Importance of Diversity in Institutions 941 A. A General Argument for Diversity 942 1. Diversity in Collective Decision-Making Bodies 944

Does the U.S. Constitution Need an Equal Rights Amendment

For over 3 decades, those engaged in the battle over the Equal Rights Amendment (ERA), along with many scholarly commentators, have argued that ratification of the amendment will lead U.S. courts (1) to elevate the standard of law they now use to adjudicate claims of sex discrimination, which, in turn, could lead them (2) to find in favor of parties claiming a denial of their rights. We investigate both possibilities via an examination of constitutional sex discrimination litigation in the 50 states—over a third of which have adopted ERAs. Employing methods especially developed for this investigation, we find no direct effect of the ERA on case outcomes. But we do identify an indirect effect: the presence of an ERA significantly increases the likelihood of a court applying a higher standard of law, which in turn significantly increases the likelihood of a decision favoring the equality claim.