Robert M. Howard

Buyer Beware? Presidential Success through Supreme Court Appointments

One manner in which Presidents attempt to have an enduring policy influence is through the appointment of like-minded justices to the Supreme Court. This article empirically examines Dahls (1957) hypothesis that justices actually support the policy preferences of the Presidents who appoint them. We study concordance with new data for measuring presidential preferences in the domains of social and economic policy and by incorporating the notion of judicial change over time. We measure presidential preferences for the modern Presidents, Franklin Roosevelt through Bill Clinton, with a survey taken from a random sample of political science scholars who study the Presidency We measure the voting behavior of the Presidents Supreme Court appointees through their votes in civil liberties and economics cases from 1937 to 1994. Presidents appear to be reasonably successful in their appointments in the short run, but justices on average appear to deviate over time away from the Presidents who appointed them.

The Supreme Court and Opinion Content: The Use of the Federalist Papers

Many scholars of the Supreme Court and many justices assert the importance of the Federalist Papers. They provide important evidence of original meaning and interpretation of the Constitution, and there is evidence that there is an increase in citations to the Federalist Papers in Supreme Court opinions. While some may view this increased citation use as a positive development because it demonstrates reliance on legal authority in judicial decisions, we provide evidence that in a period marked by dissensus and controversy, the use of the Federalist Papers represents externally and internally oriented strategic attempts by the justices to add legitimacy to constitutional interpretation, and to sway colleagues. We use a combination of descriptive and multivariate techniques to examine Federalist citations from 1953 to 1995 to demonstrate our interpretation.

A Preference for Deference? The Supreme Court and Judicial Review

The power of the Supreme Court to declare laws unconstitutional remains as troubling today as when first introduced in Marbury v. Madison. While the normative arguments will perhaps always remain unsettled, the empirical question of when and how often justices actually use this power also continues unanswered. Using data derived from briefs filed by litigants over ten terms, we develop systematic tests of how requests for judicial review of state and federal laws influence U.S. Supreme Court justices. We find that while many appear to base their decisions to strike or uphold state or federal laws on ideological considerations, the Court itself can be called restraintist in that it never appears to strike laws sua sponte, and most requests for the review are voted down. Finally, we find little evidence of strategic considerations in the justices’ decisions.

Regional Court Influence Over Bureaucratic Policymaking: Courts, Ideological Preferences, and the Internal Revenue Service

While there have been numerous studies demonstrating bureaucratic control of administrative and regulatory agencies, many argue that the Internal Revenue Service is an agency out of control, and one not subject to political constraints. However, some recent studies have shown that the IRS is subject to some political control in shifting policy between the often competing concerns of efficiency and fairness. We extend these studies to examine judicial control of the IRS. Examining cross sectional time series data from 1960 until 1988, we use regression with panel corrected standard errors to show that, while efficiency is always very important, the IRS shifts audits between the wealthy and the less affluent in response to the prevailing median ideology of the relevant federal court of appeals. As the median appeals court judge becomes more liberal, the IRS shifts its audits in that region in favor of equity by reducing the audits on the poor and increasing the audits of the more affluent. As the median appeals court judge becomes more conservative, the IRS shifts the audits in that region in favor of greater efficiency by increasing the audits of those in the lower economic strata. Courts provide an additional measure of control of bureaucratic behavior.

The Labor of Judging: Examining Administrative Law Judge Decisions

There has been significant scholarly research on judicial decision making and bureaucratic control but little research on bureaucrats who perform a judicial function, namely, administrative law judges. In this article, we analyze the influences on the decisions of administrative law judges (ALJs) from 1991 to 2006. Using ordered logit, we examine the influence of policy preference and hierarchical and political constraint. We find that ALJs are comparable to Federal District Court judges in that they use ideology in their rulings, are also subject to hierarchical control by higher courts, and that they are constrained by separation of powers influences.

State Policy Innovation in Perspective Courts, Legislatures, and Education Finance Reform

Why and when courts will change policy has been the subject of significant scholarly attention, but there has been little effort to integrate this research within the existing research of determinants of state legislative policy change. In this article, the authors incorporate both of these research areas to answer the question of whether policy change will occur through the legislature or through the courts, examining the important issue of education finance reform. To understand and predict this change, the authors characterize the state policy environment as consisting of political, legal, and strategic factors. The authors find that a combination of political and strategic factors influences legislatures and the courts, but that law matters greatly to the courts, particularly state constitutional education clauses. The authors also find that institutional structure influences the degree to which politics matters to the courts.

Wealth, Power, and the Internal Revenue Service: Changing IRS Audit Policy through Litigation

Objectives. Although scholars have recognized that the wealth and power of litigants has substantial influence on litigation outcomes, there has been less recognition of the ability of the wealthy to sway agency policy through litigation. I argue that the wealthy, through lawsuits and the outcomes from the litigation, influence Internal Revenue Service (IRS) audits of the wealthy and the less affluent. Methods. I examine IRS state audit rates and use ordinary least squares regression with panel corrected standard errors. Results. I show that wealthy litigants can influence the IRS to decrease audits of the wealthy and increase audits of the less affluent. Conclusions. The wealthy appear to have the ability to influence IRS policy through lawsuits. Litigation can influence agency policy.

Getting a Poor Return

Many years ago Robert Dahl (1957) argued that the courts are rarely out of alignment with the dominant national political coalition and more recent scholarship has built on this argument. However, despite this, it is still a prevalent belief that courts protect the minority against the power of the majority. This article analyzes these views by examining the influence of the national coalition and courts on tax policy. The article shows that from 1994 through 2000 a shift to more low-income audits results from political and judicial influence on the agency. The dominant national political coalition, the Tax Court, and to a lesser extent the District Courts, are major players in setting and determining agency policy. This confirms what Dahl noted years ago, namely that the courts are rarely out of alignment with the dominant national political coalition, and actually enforce the policy preferences of the dominant political coalition.

The Unintended Consequences of Congressional Action: Judicial Conviction Rates after Congressional Sentencing Reform

The Sentencing Reform Act of 1984 created the United States Sentencing Commission, which had the responsibility to promulgate sentencing guidelines. These guidelines created a range of determinate sentences for all categories of federal offenses and were binding on all federal judges. In a curious aftermath of legislation designed to toughen the response of courts to crime, scholars have noticed that federal judges’ conviction rates have fallen since the 1980s (Leipold 2004). This unexpected trend raises the possibility that the outcome of the Sentencing Act is opposite of what Congress intended. When faced with mandatory sentencing guidelines, judges sometimes try cases in which they believe the defendant to be guilty, but the legally mandated sentence is too harsh given the circumstances. In these cases, judges may choose to acquit. Since these defendants would have been convicted in the absence of guidelines, aggregate conviction rates should be lower when guidelines are in effect than otherwise. We test these hypotheses with data on federal bench trials from 1970 to 2005. We find that federal judges’ conviction rates have fallen substantially and that the trend is attributable, at least in part, to the Sentencing Reform Act of 1984 and the resulting binding sentencing guidelines. We conclude that although the act allowed Congress to appear “tough on crime” to voters, the substantive result of the legislation was decidedly not tough on crime.

Ignoring Advice and Consent? The Uses of Judicial Recess Appointments

The authors seek to answer the questions of why presidents use the power to temporarily seat federal court judges during recesses of the Senate. The use of the recess power can upset the carefully calculated separation of powers envisioned by the framers, shifting power away from one branch of government toward another. Examining every judicial recess appointment from 1789 to 2004, the authors discover that presidents are conditionally strategic in their use of the unilateral authority to appoint federal court judges during Senate recesses but that the use of this power is careful and spare, especially in the modern era.