Reginald S. Sheehan

THE SUPREME COURT AS A COUNTERMAJORITARIAN INSTITUTION? THE IMPACT OF PUBLIC OPINION ON SUPREME COURT DECISIONS

Although normative questions about the role of the Supreme Court as a countermajoritarian institution have long excited controversy in democratic theory, empirical questions about how far the Court acts contrary to majoritarian opinion have received less attention. Time series analyses for the period 1956–89 indicate the existence of a reciprocal and positive relationship between long-term trends in aggregate public opinion and the Courts collective decisions. The Courts ideological composition changes in response to previous shifts in the partisan and ideological orientation of the president and Congress. The Court also responds to public opinion at the margins even in the absence of membership change. Since 1981, the relationship has vanished or turned negative in direction. The Courts ideological balance has been upset by an unbroken string of conservative-to-moderate appointments, thereby undermining the dynamics that promote judicial responsiveness and raising questions about the majoritarianism of the contemporary and future Court.

Who Wins on Appeal? Upperdogs and Underdogs in the United States Courts of Appeals

The central focus of this investigation is the effect of litigation resources on the success of appellants appearing before the United States Courts of Appeals. The analysis parallels the earlier study by Wheeler et al. (1987) of who wins in state supreme courts. The findings are that litigation resources are much more strongly related to appellant success in the courts of appeals than in either the United States or state supreme courts. Upperdog litigants win much more frequently in the courts of appeals in both published and unpublished decisions of the courts of appeals even after controls are introduced for partisan and regional effects and the differences among types of cases.

Public Opinion, the Attitudinal Model, and Supreme Court Decision Making: A Micro-Analytic Perspective

Recent aggregate-level research on the United States Supreme Court suggests that shifting tides of public opinion can have important effects on Supreme Court decisions. Moreover, these effects can be both direct (i.e., unmediated by other institutions) and indirect (i.e., mediated through presidential elections and subsequent judicial appointments). This research extends this inquiry by examining the influence of public opinion on individual members of the Supreme Court during the period 1953-1992. Although the majority of justices during this period show little or no evidence of public opinion effects, a significant minority of justices show substantial effects. As predicted by social psychological theories, the impact of public opinion is greatest among moderate justices who are likely to hold critical swing positions on the Court. The effects of public opinion are in addition to significant agenda effects and suggest important refinements in the standard attitudinal model of judicial decision making.

Do the "haves" come out ahead over time? Applying Galanter's framework to decisions of the U.S. Courts of Appeals, 1925-1988

This investigation examines the success of various types of litigants appearing before the U.S. Courts of Appeals from 1925 to 1988. The analysis parallels the earlier studies by Songer and Sheehan (1992) and Wheeler et al. (1987) that applied the core concepts introduced by Galanters groundbreaking analysis of why the haves come out ahead to study litigant success on the U.S. Courts of Appeals and state courts of last resort. The findings suggest that repeat player litigants with substantial organizational strength (haves) are much more likely to win in the federal courts of appeals than one-shot litigants with fewer resources. The haves win more frequently in published decisions, even after controls are introduced for the ideological makeup of the panel. The advantage in appellate litigation enjoyed by repeat player haves is remarkably consistent over time. In particular, the U.S. government has compiled an impressive record in these courts by dominating opposing litigants over the 64-year period of analysis

Interest Group Success in the Courts: Amicus Participation in the Supreme Court:

Over the past two decades there has been a rapid increase in the number of amicus curiae briefs filed in the Supreme Court. Some cases studied suggest that these briefs may have a substantial effect on the Supreme Courts decisions, but no systematic studies have examined the efficacy of such briefs. The present study utilizes a precision matching strategy to determine if litigants supported by amici have a greater chance of success in the Supreme Court than comparable litigants in matched pairs who have no amicus support. The analysis uncovers no evidence that support from amici substantially increases the chance of success of the supported litigants.

Popular influence on supreme court decisions

In their 1993 article in this Review , William Mishler and Reginald Sheehan reported evidence of both direct and indirect impacts of public opinion on Supreme Court decisions. Helmut Norpoth and Jeffrey Segal offer a methodological critique and in their own reanalysis of the data find, contrary to Mishler and Sheehan, no evidence for a direct path of influence from public opinion to Court decisions. Instead, they find an abrupt-permanent shift of judicial behavior consistent with an indirect model of influence whereby popularly elected presidents, through new appointments, affect the ideological complexion of the Court. In response, Mishler and Sheehan defend the direct public opinion linkage originally noted, at both individual and aggregate level; respond to the methodological critique; and offer further statistical analysis to support the aggregate linkages.

Supreme Court Decision Making: The Impact of Court Composition on State and Local Government Litigation

This article examines the participation and success rates of state and local governments before the U.S. Supreme Court during 1953-1989. We find that they have experienced greater access to the Court over time, and that they have been winning an increasingly higher proportion of cases when appearing as direct parties, with some interesting variations depending on the type of case and litigants. Time-series analysis indicates that the most important factor in state and local success is the increasingly conservative ideology of the Court from the Warren years to the Rehnquist Court. An exception to improved performance is federalism cases. The findings have implications for the future character of American federalism and the development of a general model of judicial decision making.

Federal Agencies and the Supreme Court: An Analysis of Litigation Outcomes, 1953-1988

This article examines differences in support among federal agencies appearing before the Supreme Court. The author reports that there are significant differences in levels of support, among the agencies, when we control for agency type and the directionality of the agencys decision over time. The findings of the analysis indicate that the Supreme Court is more likely to support agencies that are independent in nature and perform a quasi-judicial role in the bureaucracy. Although executive type agencies are supported to a high degree, they are significantly less likely to be supported when compared with independent agencies. Examining the success of agencies over time, the author also finds that the success of federal agencies is dependent on the directionality of the agencys decision and the ideology of the Court. The Warren Court was more likely to support an agency when its decision was liberal than when it was conservative, whereas the Burger Court responded in an opposite manner. The conclusion from this analysis is that the policy values of the Court have a significant impact even in the area of agency policy.

Explaining Litigant Success in the High Court of Australia

The authors examine the influence of party capability theory while controlling for legal-structural and doctrinal changes in the High Court. Based on their analysis of cases from 1970 to 2003, several notable conclusions emerge. The most interesting determinant of litigant success in Australia involves a shift within the High Court from a mechanical form of jurisprudence to a doctrine of implied rights. Once the High Court announced Mabo, ‘one-shot’ litigants gained a significant advantage and were more likely to win. Additionally, the change to a doctrine of implied rights provided barristers with new opportunities to craft novel legal arguments. Consequently, their influence over decision outcomes increased. As barristers gained more experience and more successes, the likelihood of their clients winning increased substantially.

The impact of the Australian High Court on elite opinion

Institutional theory suggests that policy views of a Court in democratic regimes are never far out of line for long with the policy views of the dominant lawmaking majorities because of relatively regular turnover in the membership of the Court. The result is the Court may provide legitimacy to majoritarian policies and can sometimes influence elite preferences. The authors develop and test a theory of legitimation using a data set administered to all candidates running for a seat in both houses of the Australian National Parliament. Using methods originally developed in public opinion research, they explore whether political elites respond to decisions made by the High Court in the area of governmental regulation of work environments. Their findings indicate that the High Court was able to effect a structural change in elite opinion.