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Abstract:
Judicial review has long been characterized by constitutional scholars as countermajoritarian and antidemocratic. This Article employs insights from political science and game theory to argue that the opposite is true: judicial review supports popular sovereignty by mitigating the principal-agent problem that lies at the heart of democratic government. In a system of constitutional government premised upon popular sovereignty, the government acts as the agent of the people and is supposed to exercise power consistent with the terms and conditions imposed by the people in the form of a constitution. But the interests of principal and agent may diverge: those entrusted with public power may seek to seize more power than has been given them, or to turn the power they have been given against the people themselves. The people thus face the challenge of asserting effective control over a potentially treacherous government, and they cannot meet this challenge without first overcoming two potentially serious obstacles. One is an information problem: the people cannot respond to bad behavior by the government if they remain unaware of that behavior. Another is a coordination problem: even if the people acting together are capable of replacing the government, such action may require widespread coordination that can be difficult to achieve.

Courts that engage in judicial review perform monitoring and coordinating functions that help the people to solve both of these problems. First, a court engaged in judicial review serves the function of a whistleblower or fire alarm: it provides the people with reliable, low-cost information about whether their government has overstepped the bounds of its delegated power. Second, courts can coordinate popular action against usurping governments. People are unlikely to act openly against a tyrannical government unless they believe that others will act as well. They are therefore in need of a highly public signal that creates such beliefs on a large scale. A court can provide such a signal by ruling publicly against the government. The fact that constitutional courts perform monitoring and coordinating functions helps, in turn, to solve the puzzle of why governments obey them, notwithstanding the fact that they lack the power of either the purse or the sword. The ability of a court to mobilize the people against the government means that government disobedience of the court's decisions carries potentially severe consequences.

This account has important empirical implications that directly contradict the conventional wisdom about the purported relationship between judicial legitimacy and judicial power. It is often thought that courts jeopardize their legitimacy, and thus their power, by rendering unpopular decisions. This Article argues that the opposite may be true. When a court renders an unpopular decision that nevertheless receives widespread compliance, it generates and reinforces strategic expectations about its efficacy in future cases. Thus, the successful exercise of judicial power in the face of opposition or criticism merely begets even more judicial power. The overall theory also helps to explain both judicial independence and public support for the courts in the face of decisions that may sometimes defy the wishes of a majority: because constitutional courts perform a watchdog function, the people have reason to support their independence even if specific judicial decisions happen to be unpopular.

constitutional court, courts, judicial power, judicial review, principal-agent, monitoring, coordinating, coordination problem, judicial independence, legitimacy, countermajoritarian, countermajoritarian dilemma, popular rule, popular sovereignty, constitutional law, constitutions

Abstract:
In this paper, we employ simple formal models drawn from political science to explain the occurrence of gridlock in the federal judicial selection process, and to explore the implications of the nuclear option, by which a bare majority of senators employs parliamentary tactics to abolish the filibuster with respect to judicial nominations. Our application of a pivotal politics model leads us to reject the notion that appointments gridlock is a straightforward consequence of divided government. Instead, meaningful changes to the ideological balance of the federal bench require a more demanding ideological alignment of multiple veto players relative to the status quo. This conclusion is confirmed by the recent history of the federal judicial appointments process.

We then adapt the pivotal politics model to the existence of the nuclear option by introducing a new player, the nuclear pivot, who supplies the last vote needed to trigger the nuclear option, and whose precise identity is uncertain - perhaps even to the nuclear pivot herself. Introduction of the nuclear pivot curtails the extent of gridlock and makes possible some change in the status quo, albeit less change than would be possible in the outright absence of the filibuster. We conclude not only that the threat of the nuclear option works to the detriment of the minority Democrats, but also that the Democrats have gained nothing of substance from the agreement reached by a group of moderate senators - the so-called Gang of 14 - that has indefinitely forestalled actual exercise of the nuclear option. However, both uncertainty over the location of the nuclear pivot and the degree to which the Democrats have successfully prolonged the confrontation over judicial nominees may hinder the President from capitalizing upon the advantage otherwise conferred by the threat of the nuclear option.

Nuclear option, nuclear pivot, filibuster, gridlock, appointments gridlock, pivotal politics, gang of 14, gang of fourteen, krehbiel, judicial selection, judicial appointments, federal judges, appointment process, appointments process, divided government, veto players

Abstract:
In this paper, we employ simple formal models drawn from political science to explain the occurrence of gridlock in the federal judicial selection process, and to explore the implications of the nuclear option, by which a bare majority of senators employs parliamentary tactics to abolish the filibuster with respect to judicial nominations. Our application of a pivotal politics model leads us to reject the notion that appointments gridlock is a straightforward consequence of divided government. Instead, meaningful changes to the ideological balance of the federal bench require a more demanding ideological alignment of multiple veto players relative to the status quo. This conclusion is broadly consistent with the recent history of the federal judicial appointments process.

We then adapt the pivotal politics model to the existence of the nuclear option by introducing a new player, the nuclear pivot, who supplies the last vote needed to trigger the nuclear option, and whose precise identity is uncertain - perhaps even to the nuclear pivot herself. Introduction of the nuclear pivot curtails the extent of gridlock and makes possible some change in the status quo, albeit less change than would be possible in the outright absence of the filibuster. We conclude not only that the threat of the nuclear option works to the detriment of the minority Democrats, but also that the Democrats have gained nothing of substance from the agreement reached by a group of moderate senators - the so-called Gang of 14 - that has indefinitely forestalled actual exercise of the nuclear option. However, both uncertainty over the location of the nuclear pivot and the degree to which the Democrats have successfully prolonged the confrontation over judicial nominees may hinder the President from capitalizing upon the advantage otherwise conferred by the threat of the nuclear option.

Nuclear option, nuclear pivot, filibuster, gridlock, appointments gridlock, pivotal politics, gang of 14, gang of fourteen, krehbiel, judicial selection, judicial appointments, federal judges, appointment process, appointments process, divided government, veto players

Abstract:
Globalization - the drastic reduction of barriers to trans-border movement and exchange - is a phenomenon of obvious practical significance that has received little attention from American constitutional scholars. To the extent that it has received such attention at all, that attention has been largely confined to a handful of conspicuous changes in judicial behavior, such as the growth of transnational judicial dialogue and the citation of foreign law in recent Supreme Court decisions. Yet the potential impact of globalization is not limited to its effect on the travel and citation habits of judges. On a larger scale, globalization entails intensifying international competition for investment capital and human talent that may have much greater implications for the worldwide development of constitutional law.

This paper aims to place globalization on the agenda of constitutional scholarship by proposing a provocative hypothesis about the impact of global investment and migration patterns on the extent to which countries uphold basic rights. One way in which countries can and do compete for financial capital and human talent is by offering bundles of rights and freedoms that are attractive to investors and elite workers. This paper argues that such competition has the potential to result in a race to the top in the areas of civil liberties and property rights. It draws upon scholarship and data from a range of disciplines - but most heavily political science and economics - to show that this race to the top hypothesis is both logically and empirically plausible.

The paper also employs the concept of a world market in human rights, in which states bid for elite workers by offering both pecuniary and non-pecuniary inducements that include more or less generous bundles of rights and freedoms. Countries that do not boast an attractive bundle of this kind must compensate by offering what this article calls a freedom premium, which amounts to a competitive disadvantage in the global market for human talent.

globalization, constitutional law, constitutional rights, civil liberties, property rights, race to the top, migration, human capital, freedom premium, constitutional competition

Abstract:
As Justice Breyer has observed, "[j]udges in different countries increasingly apply somewhat similar legal phrases to somewhat similar circumstances." This article explains why constitutional law is bound to display strong underlying similarities, if not signs of convergence, across subnational and national borders. The explanation is threefold. First, constitutional courts experience a common theoretical need to justify countermajoritarian judicial review. This concern, and the stock responses that courts have developed, amount to a body of generic constitutional theory. Second, for heuristic reasons, courts employ common problem-solving skills in constitutional cases, which together constitute a kind of generic constitutional analysis. Third, courts face overlapping influences, largely not of their own making, that encourage the adoption of similar legal rules. These similarities make up a body of generic constitutional doctrine. In conclusion, the article discusses how constitutional pedagogy should be reformed to take account of these developments, and whether judges can or should resist the advent of generic constitutional law.

Constitutional law, comparative law, comparative constitutional law, comparative public law, constitutional theory, comparative constitutional theory

Abstract:
Scholars have for decades sought to measure judicial ideology and its impact on judicial behavior. However, they have not always taken care to identify the phenomenon that they are measuring in clear and convincing terms. Nor have they made a habit of evaluating different measurement approaches for their suitability to the task at hand. In this Article, we attempt to remedy the recurring weaknesses of the existing empirical literature in three ways. First, we identify the major conceptual and methodological obstacles to the empirical measurement of judicial ideology. Second, we compare the performance of several popular approaches to the measurement of judicial ideology. Third, we propose measurement approaches of our own that, for certain applications, offer significant improvements over some of the most popular alternatives.

At a conceptual level, empirical scholars confront the difficulty of defining ideology and the related challenge of disentangling ideological and nonideological preferences. As a methodological matter, scholars face the challenge that ideology is an intangible phenomenon that cannot be directly observed. From this fact stems the further problem of observational equivalence: the observable behavior of judges is open to multiple interpretations and may be attributable to both ideological and nonideological motivations. A further complication is the possibility that judicial ideology may be multidimensional across different areas of law.

It is crucial that scholars give explicit attention to the strengths and weaknesses of different measurement approaches, and their suitability to different types of research questions. To that end, we identify and contrast three broad families of approaches - namely, those that rely upon some easily observable proxy for a judge's ideology, those that require assessment of a judge's actual behavior in a particular context, and those that involve transplanting ideology estimates from one context to another. We also discuss issues surrounding the coding of cases for empirical analysis, with particular attention to the choice between unidimensional, multidimensional, and agnostic coding schemes.

Finally, we perform head-to-head evaluations of several popular measures of judicial ideology to see how well they predict voting behavior on the federal courts of appeals and the Supreme Court. For the courts of appeals, we test two widely used proxy measures - namely, party of appointing president and the judicial common space scores - against a novel approach that entails analyzing past voting behavior to estimate not only each judge's ideology, but also the impact of collegiality concerns and dissent costs on judicial voting. As between the two proxy measures, we find that the common space scores perform only slightly better than party of appointing president at predicting actual votes. Moreover, both proxy measures yield almost identical estimates of the impact of ideology on actual judicial voting. By contrast, the novel approach that we employ boasts greater predictive power than either of the proxy measures, and it further reveals that ideology has a much greater impact on judicial voting than could be discovered using either of the proxy measures.

For the Supreme Court, we test party of appointing president, the Martin-Quinn scores, the Segal-Cover scores, and our own measure of judicial ideology computed from the voting behavior of the justices. The performance of the Martin-Quinn scores at predicting judicial votes is comparable on the whole to that of our customized measure and noticeably superior to that of the Segal-Cover scores, which in turn outperform party of appointing president by a substantial margin.

judicial ideology, proxy measures, common space score, ideology, judicial behavior, unidimensional, judicial voting, dissent cost, collegiality, collegial voting

Abstract:
Previous studies have demonstrated that, in a number of contexts, federal appeals court judges divide along ideological lines when deciding cases upon the merits. To date, however, researchers have failed to find evidence that circuit judges take advantage of selective publication rules to further their ideological preferences - for example, by voting more ideologically in published cases that have precedential effect than in unpublished cases that lack binding effect upon future panels. This article evaluates the possibility that judges engage in strategic judicial lawmaking by voting more ideologically in published cases than in unpublished cases. To test this hypothesis, all asylum cases decided by the Ninth Circuit over a ten-year period were coded for analysis, and Markov Chain-Monte Carlo methods were used to estimate the extent to which publication increased the likelihood that each judge in the data set would vote in favor of asylum. A number of Democratic appointees proved significantly more likely to vote in favor of asylum in published cases. No such pattern emerged with respect to Republican appointees. This study also confirms earlier findings that Democratic and Republican appointees divide along ideological lines to a significant extent in both published and unpublished cases. The extent of the ideological voting behavior observed in unpublished cases calls into question the validity of much research on judicial behavior, insofar as such research continues to rely exclusively upon the analysis of published opinions and ignores unpublished opinions for reasons of convenience.

court of appeals, publication, strategic, ninth circuit, no-citation rule, asylum, judicial behavior

Abstract:
Much of the social science literature on judicial behavior has focused on the impact of ideology on how judges vote. For the most part, however, legal scholars have been reluctant to embrace empirical scholarship that fails to address the impact of legal constraints and the means by which judges reason their way to particular outcomes. This Article attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court’s use of a particular interpretive technique – namely, the use of legislative history to determine the purpose and meaning of a statute. We analyzed every opinion in every Supreme Court statutory interpretation case from 1953 through 2006 that involved a frequently interpreted federal statute. We also collected original data on the characteristics of each statute, including its age, length, complexity, obscurity, and the number of times that it had been amended. We then used logit regression analysis to evaluate the impact of these characteristics, as well as the ideological tilt of the justices and their opinions, on the likelihood that a justice would cite legislative history in a given opinion.

We find overall that the use of legislative history is driven by a combination of legal and ideological factors. On the whole, the legal variables have a significantly larger impact on the likelihood of legislative history usage than the ideological variables, but the impact of the ideological variables cannot be dismissed. Statutes that are longer or more complex increase the likelihood of legislative history usage, whereas frequent amendment of a statute decreases that likelihood. The age of the statute also matters, but its effect is neither linear nor monotonic: very new and very old statutes are more likely to elicit legislative history usage than statutes of intermediate age. Majority opinions are significantly more likely to cite legislative history than dissenting opinions, which are in turn more than twice as likely to cite legislative history as concurring opinions. The evidence also suggests that the use of legislative history by one justice prompts other justices to respond in kind with legislative history arguments of their own.

With respect to the impact of ideological factors, liberal justices are generally more likely than conservative justices to cite legislative history. We found no support, however, for the proposition that justices use legislative history instrumentally in order to reach their ideologically preferred outcomes: legislative history usage does not affect the likelihood that a justice will arrive at his or her preferred outcome. Moreover, contrary to what some scholars have suggested, we also found no evidence that Justice Scalia has persuaded other justices to refrain from citing legislative history in their own opinions. Rather, the decline in the overall use of legislative history since the mid-1980s reflects a rightward shift in the ideological composition of the Court, as liberal justices who were inclined to cite legislative history have been replaced by conservative justices who are not inclined to do so.

Abstract:
The Supreme Court of Japan is widely considered the most conservative constitutional court in the world, and for good reason: in over fifty years of operation, it has struck down only eight laws on constitutional grounds. Drawing on interviews conducted in Japan with a variety of judges, officials, and scholars - including seven current and former members of the Supreme Court itself - this Article offers a political and institutional account of why the Court has failed to take an active role in the enforcement of Japan's postwar constitution. This account of the Court’s behavior also yields a number of insights into the relationship between judicial politics and electoral politics and the role of institutional design in mediating between the two.

The fact that the Court is conservative is perhaps only to be expected given its longtime immersion in a conservative political environment: the Liberal Democratic Party (LDP), Japan's center-right ruling party, has held power almost without interruption for half a century. Much of the LDP's influence over the Court is disguised, however, by the institutional design of the judiciary, which appears to enjoy a considerable degree of autonomy to manage its own affairs and even to decide who will serve on the Supreme Court. What the LDP has done is, in effect, to delegate political control of the judiciary to ideologically reliable agents within the judiciary itself - namely, the enormously powerful Chief Justice and his aides in the Court's administrative arm, the General Secretariat. Like the Chief Justice, the leaders of the General Secretariat are reliably orthodox jurists who have reached positions of power via a lifelong process of ideological vetting that all career judges must undergo. This group of judicial bureaucrats performs a wide range of sensitive activities ranging from the training and screening of new judges to the selection of Supreme Court law clerks, who are themselves successful career judges and exert a conservative influence on the Court.

The Japanese experience holds valuable lessons for students of judicial politics and institutional design. There is no plausible way of designing or structuring a court so as to insulate it entirely from political influence. The institutional characteristics of the court can, however, determine how responsive it will be to its political environment. An obviously relevant characteristic is the frequency with which political actors have the opportunity to shape the composition of the court. A less obvious, but no less relevant, characteristic is the extent to which power within the court is centralized or diffuse. The Japanese Supreme Court illustrates the importance of these characteristics: its organization and structure render it highly unlikely to depart from the wishes of the government for any meaningful period of time. The sheer number of seats on the Court, combined with a deliberate strategy of appointing justices close to mandatory retirement age, ensure a high degree of turnover that gives the government opportunities to adjust and correct the ideological direction of the Court on an ongoing basis. Similarly, the concentration of power in the hands of a single individual who is subject to replacement at relatively frequent intervals - namely, the Chief Justice - makes unnecessary sustained and repeated efforts to influence the behavior of the Court.

Abstract:
Sovereigns, like individuals, must sometimes make commitments that limit their freedom of action in order to accomplish their goals. Scholars have observed that constitutional arrangements can, by restricting a sovereign's power, enable the sovereign to make such commitments. The opposite, however, can also be true: constitutional arrangements can and do impede sovereign commitment by entrenching inalienable governmental powers and immunities. This Article explores the nature and origins of the commitment problems that sovereigns face, and the role of courts in solving such problems. It begins by setting forth an analytical distinction between effective and persuasive commitments. Effective commitments are made for the purpose of imposing actual restraint upon the commitment-maker; persuasive commitments, by contrast, are intended not to bind the commitment-maker, but rather to induce some third party to behave a particular way. Each type of commitment, in turn, poses a specific set of challenges for the sovereign or other actor that wishes to commit itself.

Of particular relevance to sovereigns are the matching problems of what might be called undercommitment, on the one hand, and overcommitment, on the other. The problem of undercommitment is an acute one for sovereigns: the more powerful the sovereign, the more difficult it may be for the sovereign to make commitments that other actors find credible. At the same time, however, any solution to the problem of undercommitment runs the risk of overcommitment: no sovereign wishes to incapacitate itself to an unforeseen or undesirable extent. Courts, it is argued, have the capacity to assist the sovereign in making commitments that are credible yet do not hobble the sovereign. In doing so, however, courts risk damage to the basis of their own power - namely, their own reputation for rendering fair and efficacious judgments. The Article concludes by suggesting that our Constitution can itself be understood as a form of sovereign commitment - one that is intended both to restrict the sovereign and to persuade the people of the sovereign's legitimacy - and that the doctrine of sovereign immunity compromises both of these goals.

constitutions, commitments, credible commitment, persuasive commitment, effective commitment, underpersuasive commitment, overeffective commitment, undercommitment, overcommitment, glidden, zdanok, charles river bridge, sovereign immunity, sovereignty, judicial power

Abstract:
This paper argues that the expansion of the White House's role in judicial appointments since the late 1970s, at the expense of the Senate, has contributed to heightened levels of ideological conflict and gridlock over the appointment of federal appeals court judges, by making a cooperative equilibrium difficult to sustain. Presidents have greater electoral incentive to behave ideologically, and less incentive to cooperate with other players in the appointments process, than do senators, who are disciplined to a greater extent in their dealings with each other by the prospect of retaliation over repeat play. The possibility of divided government exacerbates the difficulty of achieving cooperative equilibrium by making both the benefits of cooperative behavior and the costs of retaliation highly uncertain.

judicial appointments, federal judges, prisoner's dilemma, federal appointments process

Abstract:
Previous studies have demonstrated that, in a number of contexts, federal appeals court judges divide along ideological lines when deciding cases upon the merits. To date, however, researchers have failed to find evidence that circuit judges take advantage of selective publication rules to further their ideological preferences - for example, by voting more ideologically in published cases that have precedential effect than in unpublished cases that lack binding effect upon future panels. This article evaluates the possibility that judges engage in strategic judicial lawmaking by voting more ideologically in published cases than in unpublished cases. To test this hypothesis, all asylum cases decided by the Ninth Circuit over a ten-year period were coded for analysis, and Markov Chain-Monte Carlo methods were used to estimate the extent to which publication increased the likelihood that each judge in the data set would vote in favor of asylum. A number of Democratic appointees proved significantly more likely to vote in favor of asylum in published cases. No such pattern emerged with respect to Republican appointees. This study also confirms earlier findings that Democratic and Republican appointees divide along ideological lines to a significant extent in both published and unpublished cases. The extent of the ideological voting behavior observed in unpublished cases calls into question the validity of much research on judicial behavior, insofar as such research continues to rely exclusively upon the analysis of published opinions and ignores unpublished opinions for reasons of convenience.

court of appeals, publication, strategic, ninth circuit, no-citation rule, asylum, judicial behavior

Abstract:
What do nuclear competition and federal judicial selection share in common? Both involve strategic interactions that lend themselves to analysis from the perspective of game theory. From such a perspective, we offer an explanation of why partisan conflict and gridlock over appointments to the federal bench is likely to remain intractable.

Game theory teaches us that, whether the game is one of nuclear disarmament or judicial selection, the prospects for long-term cooperation depend upon the ability of the players to detect uncooperative behavior and to retaliate promptly. To an unusual degree, the process by which federal judges are appointed is characterized by obstacles to effective retaliation that make enduring cooperation difficult to achieve. As a result, agreements between Republicans and Democrats over the treatment of judicial nominees may be even harder to enforce than agreements between competing superpowers to reduce their nuclear stockpiles.

We conclude by discussing the conditions under which strategically minded political actors might choose to pursue the "nuclear option," by which a simple majority vote of the Senate would end the use of filibusters against judicial nominees.

judicial appointments, judicial selection, judicial behavior, federal courts, prisoner's dilemma, game theory, nuclear option, federal judiciary, filibuster