Paul J. Wahlbeck

Amicus Curiae and the Role of Information at the Supreme Court

Conventional wisdom holds that amicus briefs provide the Supreme Court with information that is not otherwise supplied by litigants and that the Court finds this information useful. While several studies explore the information that amici contribute to the Court in certain notable cases, judicial scholars have no systematic knowledge regarding the nature of information furnished by amici or the Courts use of it in its opinions. We argue that amici curiae briefs are important because they reduce informa tion problems at the Court by helping the justices anticipate the impact of their opinions. To test conventional wisdom, we examined all party briefs on the merits and amicus briefs filed in the 1992 term. We found that the conventional wisdom is largely inaccurate. First, amicus briefs often con tribute unique arguments, but they also commonly reiterate their partys brief. Second, the Courts majority opinions are not more likely to use ar guments from amicus briefs that offer new information. In fact, the Court is much less likely to adopt arguments from amicus briefs that exclusively add arguments not found in their party briefs, even after controlling for a variety of alternative explanations. The implication is that amici influence is not a function of the independent information they convey

May It Please the Chief? Opinion Assignments in the Rehnquist Court

Theory: Majority opinion assignments made by the Chief Justice of the Supreme Court can be accounted for with both organizational and attitudinal models of behavior. Hypotheses: The likelihood that the Chief assigns an opinion to a justice depends upon the importance of each case, the size of the initial majority coalition, the timing of the decision, and each justices expertise, efficiency, workload, and policy preferences. Method: A discrete choice model is used to test a multivariate model of the assignments made by Chief Justice William Rehnquist. Results: Chief Justice Rehnquists assignments are determined by the Courts organizational needs, rather than the Chiefs policy preferences.

The Life of the Law: Judicial Politics and Legal Change

To what extent is legal change influenced by judicial politics? This question, as initially posed by legal realists, provided the stimulus for much of the early study of the judicial process Although judicial scholars have since explored the impact of judicial policy views, the litigation environment, and the political environment, no systematic analysis of the impact of these factors on legal change has been undertaken. I develop a measure of legal change and use it to test the impact of judicial politics by examining search and seizure cases decided by the Supreme Court between 1962 and 1989 Using a multinomial logit model, I find that several aspects of the judicial process, particularly the Courts political composition, legal constraints, litigant resources, attorney experience, amicus support, and presidential preferences, affect the direction of legal change.

Calling It Quits: Strategic Retirement on the Federal Courts of Appeals, 1893-1991

Does politics influence judicial retirements? Judicial scholars have long ac knowledged the role of politics in the judicial appointment process and in judicial decision making, but the judicial retirement literature presents divergent conclusions on the effect of politics. We employ an event count model to test the influence of politics on the annual number of voluntary departures from the federal courts of appeals from 1893 through 1991. Our data provide evidence that more judges are likely to retire when politi cal conditions favor the selection of successors sharing their policy views or when unfavorable political conditions appear unlikely to change. These political factors are significant even after controlling for the costs incurred by continued service on the courts, such as diminishing salary, increasing caseload, age, and improved retirement benefits.

Marshalling the Court: Bargaining and Accommodation on the United States Supreme Court

Theory: Supreme Court opinion authors make strategic calculations about the need to craft opinions that are acceptable to their colleagues on the bench. Hypotheses: The willingness of justices to accommodate their colleagues depends upon the size and ideological makeup of the majority conference coalition and the number of suggestions and threats issued by their colleagues. These strategic considerations are important even after controlling for a series of nonstrategic factors, such as case complexity. Method: To examine the extent of accommodation in Supreme Court cases, we examine the number of draft opinions circulated by the majority opinion author. We use a Generalized Event Count model to determine whether strategic or nonstrategic efforts influence the amount of accommodation that occurs. Results: We show that accommodation is influenced strongly by strategic concerns-including the size of the majority conference coalition, the ideological distance of the author from the majority coalition, the ideological heterogeneity of the conference majority coalition, and the positions taken by majority coalition members and by nonstrategic factors, including the authors workload and the complexity of a case.

A Conditional Model of Opinion Assignment on the Supreme Court

The chief justice’s power to assign the majority opinion on the U.S. Supreme Court provides an indispensable agenda-setting tool for the chief. Scholars disagree, however, on what factors guide the chief’s use of his assignment powers. Some suggest that the chief assigns cases with an eye to securing his ideological goals, while others contend that the chief prefers to ensure the efficient and harmonious operation of the Court. Rather than assuming that the chief is a single-minder seeker of either ideology or efficiency, we explore the possibility that the chief is motivated by multiple goals. In particular, we evaluate the effects of policy goals and organizational needs on the chief’s assignment decisions, and specify the conditions under which different goals appear to be paramount to the chief. Using a random-effects probit model, we examine the assignment decisions of Chief Justices Earl Warren, Warren Burger, and William Rehnquist between the 1953 and 1990 terms, and find support for a conditional model of assignment decisions.

U.S. House Committee Chair Selection Republicans Play Musical Chairs in the 107th Congress

In 1995, House Republicans adopted a conference rule stating that seniority would no longer be the sole criterion for advancement to a full committee chair. In addition, they adopted a standing rule of the House limiting chairs to three consecutive Congresses at the helm of any given standing committee. This article examines the determinants of advancement to full committee chairs in the aftermath. The research focuses primarily on the large-scale displacement of chairs at the outset of the 107th Congress. We find that with the demise of seniority, a candidates position relative to the party and funding prowess figure prominently in Republican steering committee decision making.

Ghostwriters on the Court?: A Stylistic Analysis of U.S. Supreme Court Opinion Drafts

A common refrain among Supreme Court watchers is that today it is law clerks who are primarily responsible for drafting the justices’opinions. We search for traces of clerical drafting—identifiable stylistic “fingerprints”—in the first drafts of the opinions that two justices, Lewis F. Powell Jr., and Thurgood Marshall, circulated during the 1985 term of the Court. These two justices relied on their clerks to a different degree: Powell’s office procedures called for him and several clerks to participate in writing each opinion, whereas Marshall reputedly delegated most writing responsibilities to his clerks. We do detect the clerks’ distinct styles in the justices’ opinions, though; as expected, the fingerprints are clearer for Marshall’s clerks than for Powell’s. We also find differences across opinion type, with the clerks’unique style most easily discernible in separate opinions, as opposed to majority opinions.

The Politics of Speaker Cannon's Committee Assignments

decision-making process. erhaps the most fabled example of the Speakers use of institutional power is Speaker Joseph Cannons appointment of committees in the early twentieth century (Jones 1968). Conventional wisdom holds that Cannon used his unilateral control over assignments to further a variety of political goals, including securing Cannons own position as House leader. Although Cannons critics insisted that Cannon manipulated committee assignments for his own purposes (Norris 1946), scholarly views of his assignments offer a much more complicated portrait (Chiu 1928; Polsby, Gallaher, and Rundquist 1969; Shepsle 1978; and Krehbiel and Wiseman forthcoming). We use newly discovered archival evidence-personal notebooks maintained by Cannons staff for the Speakers use-to enrich our understanding of the assignment process during an earlier set of legislative institutions. We build upon previous portraits of Cannons assignment practices in two important respects. First, we demonstrate that Cannon was a strategic leader who systematically employed different assignment criteria at different stages of his speakership. Whereas during his first term in office (the 58th Congress, 1903-1905) Cannon used his powers to promote party loyalty, at the start of the 61st Congress (1909-1911), Cannon used his power to punish members whom he viewed as personally disloyal. Second, we suggest that assignment decisions are shaped by auxiliary actors inside and outside the House chamber.

Strategy and Constraints on Supreme Court Opinion Assignment

The assignment of the Supreme Courts majority opinions is one of the principal prerogatives enjoyed by the chief justice. A strategic chief justice is able to influence the course of legal policy through agenda-setting; that is, the chief justice exercises influence over policy by choosing the justice who will author an opinion and, thereby, determining which policy alternative will be developed in a majority opinion draft. Through strategic opinion assignment, then, the chief is able to guide the Court to an outcome that is closest to his preference or that will result in the least policy loss. Despite the importance of this prerogative for agenda-setting and the development of the law, the chief justice operates within constraints: the need for majority support for the proposed opinion and the efficient operation of the Court. In particular, the chief justice often assigns opinions to justices with whom he allies in order to maintain fragile conference majorities. Chief Justice Rehnquist also asserted that his assignments were based on the need to complete work on the cases and to maintain an equitable distribution of cases across the justices. Using data drawn from the papers of Justice Harry A. Blackmun, I test these expectations through an examination of opinion assignment during the Rehnquist Court (1986-1993 OT).