Academic Round-Up

As many of my prior academic round-ups have intimated, some of the most interesting work on the Supreme Court is being done by political scientists.  In fact, if anything, political scientists focus more on judicial decision-making at the Supreme Court than with respect to any other level of the federal judiciary, perhaps because political or ideological behavior is most apparent with respect to Supreme Court decisions.  With that in mind, SSRN has started a new political science network that has numerous journals relating to all aspects of that discipline.  Of particular interest to Court-watchers is a new “political institutions” journal that has a sub-heading of “law and courts,” see here, to which I highly recommend a subscription.  Of the top 10 all-time papers in that journal, six directly relate to Supreme Court decision-making and they are papers that are not usually found on Westlaw or Lexis.  Now on to the newest papers:

Anna Harvey (NYU Law School) and Barry Friedman (NYU Law School) have posted “Pulling Punches: Congressional Constraints on the Supreme Court’s Constitutional Rulings, 1987-2000” on SSRN, see here.  This paper was actually published at the end of last year in the Legislative Studies Quarterly, but the fact that is a year old does not undermine its importance.  One of the most difficult questions in judicial decision-making is whether the Court is constrained in either its statutory or constitutional decisions by Congress, which possesses both direct (i.e., overturning a statutory decision) and indirect means (i.e., the power to fund the courts and to set the jurisdiction of the lower federal courts) of influencing the Court’s decisions.  Though the paper is quite rich and I am oversimplifying it greatly here, the gist of the paper is that the authors find evidence that the Court is in fact restrained by Congressional preferences in its constitutional decisions.  In particular, they link the Rehnquist Court’s increasing propensity to overturn congressional legislation in the mid-1990s to the ideological changes brought about by the 1994 elections, which led to a Republican-dominated Congress.

Matthew Mitchell (George Mason University) has posted a new paper on SSRN entitled “Supreme Court Justices and Supreme Court Nominations: Do Nomination Battles Affect the Decisions of Sitting Justices,” see here.  Although other researchers have found with varying degrees of success that some Justices strategically retire when a President of the same party is in office, this paper curiously finds that upon an announced vacancy, liberal Justices are more likely to join the conservative wing of the Court in judicial decisions.  The results seem to be relatively robust in this paper, but I have a hard time figuring out why.  One plausible hypothesis, though I would need to think about this more, is that the paper’s data is limited to voting from 1953-2006, and Republican presidents have had far more Supreme Court appointments (17- 8 by my count) than Democratic presidents during that period.   Thus, perhaps the Court’s more liberal members are attempting to avoid politically-controversial decisions in order to not give a reason to the appointing president to nominate an ardently conservative justice to correct such decisions.  The author theorizes that perhaps the jurisprudence of liberal justices is more flexible, but that does not necessarily explain why the jurisprudence of the liberal justices does not stay the same or even turn more liberal during vacancies.  This paper is both interesting and perplexing.