Over on SCOTUSblog today, see here, I highlight a couple of papers that I enjoyed quite a bit, including one co-authored by our own Christopher Zorn. The abstracts:
1. James L. Gibson & Gregory A. Caldeira, "Supreme Court Nominations, Legitimacy Theory, and the American Public: A Dynamic Test of the Theory of Positivity Bias." SSRN Link
Social scientists have taught us a great deal about the legitimacy of the U.S. Supreme Court. Unfortunately, however, most research fails to consider how the public's views of political institutions like the Court change over time. But opinions can indeed change, with at least two types of “exogenous” sources - controversial Supreme Court decisions and politicized confirmation hearings - providing engines for attitude change. Events such as these may awaken attitudes from their hibernation, allowing for the possibility of updating. Two types of change seem possible: Attention to things judicial may be associated with exposure to highly legitimizing symbols of judicial power (e.g., robes), symbols that teach the lesson that the Court is different from ordinary political institutions and therefore is worthy of esteem. Gibson and Caldeira refer to this as “positivity bias.” Alternatively, events may teach that the Court is not different, that its role is largely “political,” and that the “myth of legality” really is a myth. Since so few studies have adopted a dynamic perspective on attitudes toward institutions, we know little about how these processes of attitude change take place.
Based on a three-wave national survey of ordinary Americans, we attempt to understand the influence of the Alito nomination/confirmation process on loyalty toward the Supreme Court. Our most important finding is that exposure to advertisements by interest groups for and against Alito's confirmation contributes to the erosion of support for the Court. These advertisements seem to encourage the belief that the Supreme Court is “just another political institution,” which, in the political climate in the country, is not an accolade. Politicized confirmation processes therefore seem to have considerable capacity to undermine the legitimacy of the Supreme Court itself.
2. Christopher Zorn & Jennifer Barnes Bowie, "An Empirical Analysis of Hierarchy Effects in Judicial Decision Making." SSRN Link
Students of judicial decision making have long speculated that the factors influencing judicial decision making operate to varying degrees at different levels of the judicial hierarchy. Prominent among these has been what we term the "Hierarchy Postulate": that the effect of judges' policy preferences on their decisions increases as one moves up the judicial hierarchy. Yet to date no study has examined whether the influence of policy preferences on judges' decisions varies across the full range of the federal courts. We analyze the factors that influence judicial decision making using a unique, original data resource on cases decided at each level of U.S. federal court hierarchy. Doing so allows us to evaluate the differential impact of policy preferences on judicial decision making while simultaneously holding constant the influence of idiosyncratic, case-specific factors on those decisions. Our findings robustly and consistently support the contention that ideological and policy-related effects on federal judges' decisions are larger at higher levels of the judicial hierarchy, while legal and case-specific factors dominate at lower levels.