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Empirical SCOTUS

By on Oct 31, 2018 at 5:22 pm
Judges’ citations tell a lot about their dispositions. We can glean relationships between cases, judges’ perspectives on these cases and judges’ relationships with other judges based on case citations. For this reason, empirical scholars have spent much time and energy analyzing judges’ citation patterns. A slew of Supreme Court researchers have written fascinating pieces about the justices’ case citations (Two of the many are from Fowler et al. (2007) and Cross et al. (2010).). An area that has not received as much attention is the justices’ citations to academic journals. This is not to say that such scholarship does not exist. Louis Sirico has a series of empirical articles looking at the Supreme Court’s citations to law reviews, including one from 1986 with Jeffrey Marguiles and one solo authored piece from 2000, among others. Subsequently, other articles have gone further to plumb the various depths of the Supreme Court’s citations to journal articles. This post looks at the court’s citations to academic scholarship over the past two terms. It also is a first cut at a new data source for such Supreme Court citations that will eventually extend over a broader period of time.

By on Oct 24, 2018 at 2:50 pm
The Supreme Court currently has 43 arguments scheduled for this term. For the most part, these cases will go under the radar. Even cases with large sets of amicus briefs, usually a good sign of generalized interest in issues, do not have the same blockbuster quality as those of recent terms. For example, amici filed nearly 30 merits briefs in the case Weyerhaeuser Company v. U.S. Fish and Wildlife Service. The case deals with the scope of the Endangered Species Act. Although this topic is important, it appeals to a narrow sector of the population. Cases like Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission from last term not only generate a greater number of amicus filings, but also potentially affect more people (although the scope of the Masterpiece Cakeshop decision turned out to be relatively narrow). This leads to the logical question of what might inspire the Supreme Court’s next set of blockbuster cases. This past week we saw the federal government make a move that might ignite tension across the nation when news surfaced that the Trump administration was looking to focus the language of Title IX on a binary definition of sex as either male or female based on the “genitals that a person is born with.” This refined definition is already drawing backlash from large portions of the public while it is downplayed by others.

By on Oct 10, 2018 at 1:44 pm
The tense waiting is now over as Justice Brett Kavanaugh was confirmed to the Supreme Court on October 6, 2018. One of the big stories about Kavanaugh has been his low rate of public approval. This low rate of approval was apparent soon after Kavanaugh was nominated. Not only this, but as the figure below shows, Kavanaugh was confirmed by the smallest vote margin of any sitting justice (He was actually confirmed by the smallest margin of any successful justice outside of Justice Stanley Matthews in 1881, who was confirmed by a single-vote margin.). [caption id="attachment_276243" align="aligncenter" width="500"] Click graph to enlarge.[/caption]

By on Oct 3, 2018 at 3:50 pm
The Supreme Court now hears around 70 arguments a term, and each case tends to have issues unique from others on the court’s docket. After the court’s merits docket is assembled each term, however, similarities between cases become apparent and these similarities may present an area of law in which the court is more invested and wants greater resolution. Such areas can be either broad-based or narrow. Last term the court settled multiple issues surrounding the First Amendment. The court resolved public-sector employees’ First Amendment rights regarding agency fees in Janus v. AFSCME, First Amendment retaliatory-arrest claims in Lozman v. Riviera Beach, acceptable political apparel at polling places in Mansky v. Minnesota Voters Alliance, and the compatibility of the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act with the First Amendment in NIFLA v. Becerra. It also worked through the free exercise First Amendment question in Masterpiece Cakeshop v. Colorado Civil Rights Commission, while it left the free speech component of the case unanswered.

By on Sep 25, 2018 at 2:56 pm
The practice of Supreme Court oral arguments has changed dramatically over time. Once multi-day events, Supreme Court oral arguments now typically take place in a one-hour time span, with some exceptions granted by the justices. Not only has the time allotted to arguments changed, but so has the justices’ engagement. This increased engagement has helped quantitative scholars of the court understand the relationship between oral arguments and votes both in the aggregate and in particular cases. One claim that has been raised time and again over the years is that Justice Antonin Scalia changed the tenor of oral arguments and specifically gave rise to the “hot bench” of justices who ask many questions. This claim was recently framed a bit differently during Judge Brett Kavanaugh’s confirmation hearing before the Senate Judiciary Committee by Supreme Court advocate and former Solicitor General Paul Clement, who said, “I think the Supreme Court right now is about the hottest bench that the Supreme Court has ever been. I think each of the last justices that have been confirmed by this committee has tended to ask more questions than the justice they replaced.” This post tests these claims on data from Supreme Court oral arguments.

By on Sep 13, 2018 at 4:01 pm
Success in the Supreme Court is hard to define because it can be viewed in a variety of ways. Few attorneys have the opportunity to try cases there, and even fewer argue multiple cases. Part of success therefore is simply getting a case or cases to the court. Once the court agrees to hear a case, the case’s history comes with it; that is to say, attorneys do not all start with an equal likelihood of winning because often one side’s position is stronger than the other's at the outset. With this caveat in mind, attorneys often view case outcomes dichotomously – as wins or losses. This post looks at attorneys who have argued cases across the last five Supreme Court terms, from 2013 through 2017. It uses a dataset of attorneys and firms that was merged with the Supreme Court Database and focuses on regular players who have been most successful in terms of case wins.

By on Sep 5, 2018 at 3:48 pm
Supreme Court nominees’ confirmation hearings involve much dialogue between nominees and senators.  The dialogue, though, hardly ever provides substantive information about the nominees. In two chaotic days of the Senate Judiciary Commission’s hearing on the nomination of Judge Brett Kavanaugh, we have seen a full spectrum of behavior from both sides of the aisle. Showboating aside, this is a genuinely important hearing for a crucial seat on the Supreme Court and hence emotions are running high. Although much of the discussion leading up to the hearing surrounded how nominees do not answer substantive questions, many still hope that this time around things may be different. As scholars Paul Collins and Lori Ringhand have shown in a series of articles (for example), much can be learned about what we can expect from studying past confirmation hearings.

By on Aug 28, 2018 at 5:11 pm
The Democrats are in a precarious position in the latest battle for a seat on the Supreme Court. Many Democrats oppose Judge Brett Kavanaugh’s nomination and will not vote to confirm him. Others are requesting that the Senate hold off on voting on Kavanaugh’s confirmation until the National Archives produces the record-setting million or so pages of documents from Kavanaugh’s work in the federal government. The Democrats’ strategy is twofold. First, if they can push the vote until after the midterm elections, they may gain a majority in the House, Senate or both, potentially giving them greater leverage over the confirmation process. Second, some of the documents, specifically those from when Kavanaugh worked in the White House counsel’s office under President George W. Bush, might paint a more contentious picture of Kavanaugh and one that makes him less characterizable as a confirmable candidate. As several articles have pointed out though, the chances that the vote timing gets stretched past the midterm elections are incredibly slim, and stretching the timeline closer to the midterm elections might hurt Democrats running for office. Because the Democrats lack a majority of votes in the Senate, there is little they can do to slow the process set forth by Senate Majority Leader Mitch McConnell aside from trying to sway potential swing Republican senators away from a pro-Kavanaugh vote (or to push for a vote past the midterms). With a Republican majority in the Senate, convincing any Republican senators to oppose the vote as planned may be an impossible task. The vast majority of Republican senators have already declared support for Kavanaugh and are not viable options for persuasion. Even with the recent death of Sen. John McCain, in order to prevent an easy road for Kavanaugh to the Supreme Court, the Democrats will have to sway at least one Republican senator either not to vote before the midterm elections or to vote against Kavanaugh’s confirmation.

By on Aug 21, 2018 at 1:19 pm
The Supreme Court hears its first oral argument of the October 2018 term on the first Monday in October -- October 1, 2018. Before then, on September 24, the justices will sit down to what is known as the “long conference,” where they will review petitions for certiorari for the first time since June. The number of petitions the justices review during this conference typically exceeds 1,000. With approximately 1,321 active cases and over 1,200 petitions for certiorari, this year’s number is once again well over 1,000. This post uses data from CertPool.com as a starting point to examine aspects of the petitions the justices will review in September and then focuses on 40 petitions that have a higher than normal likelihood of success. (Click this link for Empirical SCOTUS’ look at long-conference petitions from last term.) The process of examining data related to any Supreme Court conference before the conference actually takes place is dynamic. Moving pieces are constantly shifting, mostly in the form of actors, arguments and case filings. Because the CertPool data looks at the Supreme Court dockets, the information included depends on when CertPool pulled the data. This post should therefore not be viewed as a complete analysis of what will be reviewed during the long conference, but rather as a snapshot of some of the key cases and players. This information is meant to give a sense of what the justices and clerks will review and which cases seem particularly salient at the cert stage.

By on Aug 8, 2018 at 4:51 pm
The current Supreme Court is friendly toward big business. How friendly? If the court’s trajectory continues, perhaps as friendly as any court dating back to the Lochner era, when laissez-faire policies permeated the court’s rulings. Prominent scholars, most notably Lee Epstein, William Landes and Richard Posner, have found empirical support for the proposition that the current court is more pro-business than previous iterations. (That study was recently updated through the 2015 term.) This post uses data from the 2015 through 2017 terms to add to this discussion. In particular it seeks to locate the trajectory of the court with the possible addition of Judge Brett Kavanaugh for the October 2018 term. Although the court’s right and left sides found themselves on opposite ends of business rulings during the October 2017 term, we might expect an even stronger pro-business court next term with the addition of another likely predictably pro-business justice in Kavanaugh.