Chapter Topics

2. Chapter Topics Selecting the Justices Senate Confirmation The Decision-Making Process The Justices’ Policy Preferences From Warren to Roberts Impact and Implementation

3. Selecting the Justices • presidents believe Supreme Court justices are among the most important nominations they make • president can leave an enduring mark on the U.S. legal system • the president has no control over the timing or frequency of vacancies on the Supreme Court

4. The Nomination Process • technically guided by the same process as all federal judges (Article III) – president nominates, Senate confirms, lifetime appointment • in reality the process is very different – presidents take great care in selecting supreme court justices and often get personally involved • presidents vary in their level of involvement

5. The Criteria for Nomination • the most influential selection criteria include: merit, personal and political friendship, policy preferences, and symbolic representation • more than one of these factors will be at work in any one nomination • presidents vary in their level of commitment to the criteria above

6. The Criteria for Nomination • Merit • presidents seek nominees who are qualified • majority of justices had already achieved eminence by the time they were selected in judicial, legal or public careers • some challenge this view today and question the eminence of the current justice prior to appointment • in 2005, eight of the nine justices had previously served on the U.S. Courts of Appeals

7. The Criteria for Nomination • Personal and Political Friendship • a supreme court nomination can be a personal/political reward • historically 50% of justices have been personal friends of the president • 90% of justices have been from the president’s political party • more recently presidents have moved away from appointing personal friends to the Court

8. The Criteria for Nomination • Policy Preferences • Modern presidents seek nominees who share their policy preferences • some presidents are more committed to ideology (RWR/GWB) than others (WJC/GHB) • once on the Court some justices reveal policies different from their appointing president, but research demonstrates that typically presidents and justices agree for many years on important policy issues

9. The Criteria for Nomination • Symbolic Representation • symbolic representation is very important (geography, religion, race, ethnicity, and gender) • in the 19th century geography was more important than today • religion has been an issue—today 5 of the 9 justices are Roman Catholic • only one woman—Ruth Bader Ginsburg—serving on the Court

10. The Criteria for Nomination • Interest Groups • interest groups are now actively engaged in the Supreme Court nomination process • some Senators object to the attention - pressure that Court nominations are getting • historically the America Bar Association was very powerful—with presidents’ even submitting potential names to the ABA for review and evaluation • today the ABA is treaded the same as other interest groups

11. Senate Confirmation • president is constrained because the Senate must confirm the nominee • once the nomination is announced the Senate Judiciary Committee holds hearings and questions the nominees on many issues • during the hearings other experts may also testify about the philosophy and credentials of the nominee

12. Senate Confirmation • after the hearings the judiciary committee votes and makes a recommendation to the full Senate • most nominees are supported (by 2/3 or more) and nominees are confirmed fairly quickly • the process has become more political during recent nominations

13. Senate Confirmation • since 1968 there have been a series of controversial nominees • two factors have been important a) policy preferences (Bork), b) ethics/competence issues (Fortas, Haynsworth, Carswell, Douglas Ginsberg, Miers) • senate confirmation votes appear to be increasingly political—corresponding to the political culture of states

14. Senate Confirmation • presidents can avoid controversy by choosing nominees with broad political/Senate support from the opposing party • nominations can be particularly contentious when the nominee’s policy preferences differ from those of the retiring justice (e.g., a conservative Alito replacing a moderate O’Connor)

15. The Decision-Making Process • once a nominee is confirmed attention shifts to predicting how the justice will “vote” • all justices experience a transition to the Court’s practices and procedures—the “norm’s of the Court” • requires learning to write opinions, interact with colleagues and manage their own chambers

16. Briefing • after a case is accepted both parties prepare written briefs setting forth the legal arguments in the case • offer a position and provide legal evidence and justifications to reach that result • Court limits length to 50 pages (30 pages for amici)

17. Oral Argument • time for oral argument is strictly limited (30 minutes for each side) • lawyers come prepared to present their case but justices frequently interrupt and answer questions • attorneys may focus their remarks on a key justice to win a victory • justices may ask questions they want their colleagues to hear

18. Conference • within days after oral argument the justices assemble behind closed doors, in private, to discuss the case and take an initial vote • the chief justice discusses the case first, followed by the associate justices in order of seniority • at the end of the discussion the chief justice tallies the votes “the original vote on the merits”

19. Conference • discussions in conference are private, but we know they are less freewheeling than they used to be • the briefs, oral argument, and discussion with clerks leads justices to a pretty firm opinion in advance of the conference • conferences serve to discover consensus

20. Opinion Assignment • after the vote the chief justice (CJ), if in the majority, assigns one justice to write the majority opinion, if the CJ is in the minority, the most senor justice in the majority assigns the opinion • the opinion assigner can assign the opinion to any justice in the winning coalition (including him/herself) • assignments based on workload, ideology, specialization, self assignment

21. Opinion Assignment • Workload • equality of workload is an important rule • recently the median opinion assignment is 8 • Ideology • in a minimally winning coalition (5-4) choosing a justice near the middle may keep the coalition together • justices are free to change their any time before the public announcement of the opinion

22. Opinion Assignment • Specialization • justices develop specialization in particular areas of law and opinions in these areas are often assigned to them based on this reason • Self-Assignment • there is a tradition that the chief justice assigns himself the most important cases. Slotnick (1979) found that 25% of the opinions in “important cases” were authored by the chief justice

23. Opinion Writing • writing opinions is the most difficult and time consuming of judicial tasks • research shows that justice write opinions strategically so they will attract sufficient justices to “win” the case and “influence the law” • law clerks are very involved in helping draft judicial opinions • once the justice prepares a draft opinion it is circulated to all other justices

24. Opinion Writing • the justices may sign on to the opinion, suggested changes and revisions, or decide to strike out on their own an write a separate opinion • research shows that important interaction takes place during this “give and take” • multiple drafts of opinions are not uncommon • sometimes opinions answer questions not directly raised in the case (this is referred to as judicial fluidity)

25. Announcement of Opinion • the Court decides every case argued that term • when the opinion is ready it is 1) announced from the bench and 2) copies are distributed to the public • many of the decisions come at the end of the term (often as many as 6 a day) • in an opinion of the court a majority of justices agree on the result in the case and the legal reasons for the outcome

26. Announcement of Opinion • if no opinion is joined by five justices, the opinion with the greatest number of signers is referred to as the plurality opinion • a concurring opinion is issued when a justice agrees with the result but not the legal reasoning • if a justice disagrees with the Court’s decision and legal justification he/she may write a dissenting opinion

27. The Justices’ Policy Preferences • the Supreme Court is characterized by division rather than consensus • disagreement on the Court among the justices led political scientists to ask why judges disagree and try to explain this variation • Pritchett (1954) urged us to consider the thinking of individual justices and focus on the question of why do justices vote the way they do

28. The Justices’ Policy Preferences • generally political scientists believe that justices vote their “attitudes” • such votes allow them to pursue their policy values • policy preferences are translated into votes on cases that shape legal doctrine • a variety of methods are used by political scientists to study the votes of justices—bloc analysis, attitudinal model, strategic model, and the legal model

29. Bloc Analysis • bloc analysis examines the patterns of voting among the justices • during the 2004 term Ginsburg and Souter voted together in 86% of the cases • another way to examine blocs is to look at coalitions • during the 2004 term Rehnquist, O’Connor, Scalia, Kennedy and Thomas voted together in 18 cases (the most common coalition)

30. The Attitudinal Model • the attitudinal model assumes justices votes are a function of their policy preferences • one difficulty facing the model is how to measure policy preferences • justice Scalia votes in a conservative direction in 70% of the cases, but is his ideology conservative? • occasionally justices cast votes that are inconsistent with their ideology—this is where additional explanations are important

31. The Strategic Model • the strategic model assumes that justices are policy makers who act strategically to achieve their most preferred outcome • acting strategically may mean not voting your most preferred position when a vote for your second or third most preferred position will result in a better outcome • the strategic model is very intuitive but it adds substantial complexity to explaining judicial behavior • becoming very popular

32. The Legal Model • the legal model asserts that justices’ decisions are the product of the legal statutes involved • is the preferred explanation among law professors • does not allow for policy preferences • recent twists have argued for “jurisprudential regimes” which include a key precedent which impacts other cases in a particular legal arena

33. From Warren to Roberts • scholars and journalists often refer to the Court by the name of the Chief Justice • between 1953 and 1990 the chief justice was in the majority in 80% of the cases and made the opinion assignment • there have been 17 chief justices in the Court’s history • one of the most important positions in the United States political system

34. The Warren Court • the Warren Court (1953-1069) is known for its decisions in the area of civil liberties and civil rights • revolutionized constitutional law and U.S. society • the number of civil liberties cases increased every year • during the 1968 Richard Nixon ran for president criticizing the Court as being soft on criminal procedure and moving too fast on civil liberties

35. The Burger Court • Nixon appointed four justices—including naming Warren Burger as the chief justice • The Burger Court (1969-1986) is known as more conservative than the Warren court but not for a constitutional counterrevolution • many of the Warren Court precedents were upheld • the Burger Court was characterized by pragmatism and compromise

36. The Rehnquist Court • the Rehnquist Court (1986-2005) has been successful in cementing conservative principles in the legal doctrine • a firm voting bloc of five justices (Rehnquist, Scalia, Thomas, Kennedy, O’Connor) decided a large number of cases • one observer characterized the era as a “clear break from a time when the Court was an engine of social change.” • interested in curbing federal power and leave most matters to the states

37. The Roberts Court • the Roberts Court (2005 -) is brand new • the addition of Roberts as chief justices and associate justice Samuel Alito (replacing Sandra Day O’Connor) promises to bring additional ideologically conservative decisions • Roberts joins the Court with impeccable legal credentials, setting the bar high for the next nominee • Roberts is young – the impact of the Roberts Court will be felt for many years to come

38. Impact and Implementation • the impact of the Court’s decision is a function of the level of their implementation • the Court has neither the power of the purse nor the sword • a times implementation has been slow and frustrating (Brown 1954) and at other times fast and immediate (Roe 1973) • the Supreme Court is rarely the last word on these matters

39. Political Institutions • impact and implementation are affected by how the core institutions respond • Congress and the President, Governors and State Legislatures may embrace the decision or reject it • if the decision involves a Constitutional matter the Congress may try change the Constitution (amendment) or engage in retaliation against the Court (change its jurisdiction or slow their salary increases)

40. Interpreters of Law • impact and implementation also depend on how the rulings are interpreted by judges and lawyers • lawyers may continue to file cases asserting certain legal principles or may embrace the Court’s interpretation of legal doctrine • federal judges are required to follow precedent but often the case facts present a slightly different situation than was presented in earlier cases—leaving an opportunity for viewpoints to diverge

41. Consumers of Law • the users of the legal system are also important • interest groups willingness to embrace a new legal doctrine or changes to the current legal doctrine make it more or less likely that the impact of the Court’s decisions will be widespread • the Court’s decisions, while definitive, still remain vague—leaving considerable room for users to make decisions about how to interpret the Court’s legal statements

42. Political, Social, and Economic Forces • ultimately societal values and cultural norms determine the impact and implementation of the Court’s decisions • public confidence in the Court is important and the Court has historically paid attention to its public standing • overall Court decisions are rarely out of step with the basic cultural and social views of a majority of the country

43. Conclusion • the Supreme Court is the most powerful legal institution in the world • justices are nominated by the president and confirmed by the Senate • justices are picked for a wide range of reasons including policy preferences and demographic factors • the opinions of the Court come after considerable deliberation—written briefs, oral arguments, conference, opinion drafts, and final opinions

44. Conclusion • membership on the Court is prestigious • judicial decision making is characterized by attitudinal, strategic and legal models • justices show tremendous stability in the ideological direction of their votes and the coalitions they join • the impact and implementation of the Court’s decisions involves core institutions, the interpreters and consumers of the law and is influenced by the political, social and cultural values of the country