Ryan C. Black

Agenda Setting in the Supreme Court: The Collision of Policy and Jurisprudence

For decades, scholars have searched for data to show that Supreme Court justices are influenced not only by policy goals but also by legal considerations. Analyzing justices’ agenda-setting decisions, we show that while justices are largely motivated by policy concerns, jurisprudential considerations can prevail over their policy goals. When policy goals and legal considerations collide, policy gives way. If legal considerations and policy goals align toward the same end, law liberates justices to pursue policy. In short, we find that at the intersection of law and politics, law is both a constraint on and an opportunity for justices.

Adding Recess Appointments to the President’s “Tool Chest” of Unilateral Powers

In the struggle to control the federal bureaucracy, presidents have an overlooked but powerful tool: the recess appointment. By making recess appointments, presidents can fill vacancies without the advice and consent of the Senate. The authors delineate three conditions that define presidential unilateral powers and demonstrate how recess appointments fit within that paradigm. Presidents, the authors argue, should be more likely to make recess appointments to important policy-making positions, namely, major independent agencies. The authors compile a data set of every civilian nomination and recess appointment between 1987 and 2004. After controlling for other factors, the authors find strong support for their theory.

Emotions, Oral Arguments, and Supreme Court Decision Making

Students of linguistics and psychology demonstrate that word choices people make convey information about their emotions and thereby their intentions. Focusing on theory from these related fields we test whether the emotional content of Supreme Court justices’ questions and comments made during oral arguments allow us to predict the decisions they make. Using aggregate data from all arguments between 1979 and 2008 and individual-level data from 2004 through 2008 we find justices’ use of more unpleasant language towards the attorney representing one side of a case reduces the probability that side will prevail on the merits, both in terms of individual justices’ votes and the overall case outcome.

Solicitor General Influence and Agenda Setting on the U.S. Supreme Court

Do Solicitors General (SGs) influence how justices vote? Years of scholarship suggests that the answer is yes but has largely failed to examine what influence means and just how much influence the SG wields. The authors examine SG influence during the Court’s agenda-setting stage. They find, first, that justices follow SG recommendations even when they are completely opposed to them and, second, that law exerts a strong independent influence. Justices are significantly less likely to follow SG recommendations that contravene important legal factors.

Toward an Actor-Based Measure of Supreme Court Case Salience Information-Seeking and Engagement during Oral Arguments

Case salience affects nearly every aspect of Supreme Court justices’ behavior, yet a valid actor-based measure of salience has remained elusive. Researchers have instead relied on external proxy indicators, such as amicus curiae participation and media coverage, to explain justices’ behavior. We propose a novel measurement of salience in which we use justices’ differential levels of engagement to generate actor-based measures of case and justice-level salience. Focusing on justices’ behavior during oral argument, we contend that the more engaged the justices are in a case—defined by the number of words they speak—the more salient the case.

Assessing Congressional Responses to Growing Presidential Powers: The Case of Recess Appointments

In 2007, the U.S. Senate moved into permanent session to stop President George W. Bush from making recess appointments. This article examines this episode. We argue that Congress is only able to effectively check presidential unilateral powers when the president’s use of such powers creates high political costs for a sufficient number of members such that congressional collective action is possible. Using case studies and multivariate analysis, we show that Bush used recess appointments far more than his predecessors, creating high political costs for Senate Democrats and driving them to find an innovative way to check the power of the president.

U.S. Supreme Court Opinions and their Audiences

This book is the first study specifically to investigate the extent to which U.S. Supreme Court justices alter the clarity of their opinions based on expected reactions from their audiences. The authors examine this dynamic by creating a unique measure of opinion clarity and then testing whether the Court writes clearer opinions when it faces ideologically hostile and ideologically scattered lower federal courts; when it decides cases involving poorly performing federal agencies; when it decides cases involving states with less professionalized legislatures and governors; and when it rules against public opinion. The data shows the Court writes clearer opinions in every one of these contexts, and demonstrates that actors are more likely to comply with clearer Court opinions.

Consider the Source (and the Message): Supreme Court Justices and Strategic Audits of Lower Court Decisions

Given scarce resources, Supreme Court justices hear cases that maximize their auditing capacities. The authors argue that justices rely on the identity of lower court judges and the ideological disposition of lower court decisions to decide which cases to review. The authors find justices are most likely to audit disagreeable lower court decisions rendered by ideologically disagreeable panel judges and are least likely to review agreeable lower court decisions rendered by ideologically agreeable panel judges. Furthermore, when faced with the same ideologically disagreeable lower court decision, justices are less likely to review decisions made by ideological allies than those by ideological foes.

The Role of Law Clerks in the U.S. Supreme Court's Agenda-Setting Process

Do law clerks influence the decisions made by justices on the U.S. Supreme Court? Although numerous studies of law clerk influence exist, none has controlled for alternative factors that lead a justice to behave in a particular way even absent the actions of the law clerk. Turning to the Court’s agenda-setting stage, we draw from archival materials contained in the private papers of Justice Harry A. Blackmun to address this precise issue. Our results suggest that once a justice’s initial voting inclinations in a case are controlled for, the ability of a law clerk to systematically alter a justice’s vote is conditioned on the quality of the petition, the direction of the clerk’s recommendation, and the ideological closeness of the pool clerk and voting justice. Given the closeness of many agenda-setting votes, we suggest that clerk influence could be the determining factor in whether a case is granted review by the Court.

A Built-In Advantage The Office of the Solicitor General and the U.S. Supreme Court

The Office of the Solicitor General wins the vast majority of Supreme Court cases in which it participates. Does it enjoy a built-in advantage, or does it win because it employs experienced litigators, enjoys resource advantages, or carries the executive’s sword? To answer these questions, we employ cutting edge matching methods. After matching OSG lawyers with nearly identical non-OSG lawyers in nearly identical cases, we find that OSG attorneys still are more likely to win their cases. We discuss possible reasons for this built-in advantage along with some practical implications of our findings.