How the dissent becomes the majority: Using federalism to transform coalitions in the U.S. Supreme Court

Duke Law Journal

Volumn 59, Issue 2, 2009, Pages 183-238

  Baird, Vanessa ^a   Jacobi, Tonja ^b  

^a UNIVERSITY OF COLORADO   (United States)

^b NORTHWESTERN UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 77954710173     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (155)

1. One judge described judges as having the "right and duty" to dissent and to "honestly state[] the law and its application to the case as conscience dictates."
2. Michael Kirby, Justice, High Court of Australia, Judicial Dissent, Address to the Law Students' Society of James Cook University at Cairns (Feb. 26, 2005), available at http://www.hcourt.gov.au/speeches/kirbyj/kirbyj_feb05.html.
3. There is dispute, however, as to the effect of expressing that disagreement. For example, Chief Justice Taft described dissents as "a form of egotism." He continued, "They don't do any good, and only weaken the prestige of the Court. It is much more important what the Court thinks than what any one thinks." Letter from William Howard Taft to Willis Van Devanter (Dec. 26, 1921) (on file with the Library of Congress).
4. Quoted in Robert Post, The Supreme Court Opinion As Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court 42 (UC Berkeley Pub. Law and Legal Theory Research Paper No. 48, 2001), available at http://ssrn.com/abstract=265946.
5. In contrast, Professor Sunstein argues that the potential of a colleague to dissent can "reduce the likelihood of. .. an incorrect or lawless decision [and render a decision] more likely to be right, and less likely to be political in a pejorative sense."
6. CASS R. SUNSTEIN, WHY SOCIETIES NEED DISSENT 184 (2003).
7. This analysis has been particularly well developed in the context of dissents from denials of certiorari. Famously, Justice Stevens published an opinion in response to a dissent from denial: "One characteristic of all opinions dissenting from the denial of certiorari is manifest. They are totally unnecessary. They are examples of the purest form of dicta. .. ." Singleton v. Comm'r, 439 U.S. 940, 944-45 (1978) (Stevens, J., respecting the denial of the petition for writ of certiorari). Such a dissent, however, can have the benefit that it "sometimes persuades other Justices to change their votes and a petition is granted that would otherwise have been denied."
8. See also H.W. PERRY, DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT 170-92 (1991).
9. (Providing interviews with numerous Justices who describe using dissents from denial of certiorari as a method of persuading fellow Justices to hear a case)
10. For a discussion of different categories of dissent from denial of certiorari-ranging from "neutral grounds" dissents, to "irredentist" dissents, to dissents as forward-looking policy arguments-see Peter Linzer, The Meaning of Certiorari Denials, 79 COLUM. L. REV. 1127, 1262 (1979).
11. Cf. LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE 62 (1998).
12. (Noting in the context of dissents from denial of certiorari that Justices must "[o]n occasion. .. publish so that their future threats will be credible" ).
13. This is particularly relevant when judges occasionally emphasize their displeasure in harsh terms, even though it is clearly too late to influence the decision-for example, by extravagantly damning their colleagues. In response to his fellow Justices' ruling that the death penalty cannot apply to defendants with mental retardation, Justice Scalia awarded his colleagues "the Prize for the Court's Most Feeble Effort to fabricate" evidence for the majority's argument. Atkins v. Virginia, 536 U.S. 304, 347 (2002).
14. Between 1953 and 1985, 54 percent of cases had accompanying published dissents
15. James L. Gibson, United States Supreme Court Judicial Database, Phase II: 1953-1993 Terms (ICPSR Study No. 6987, 1997), available at http://dx.doi.org/10.3886/ICPSR06987.
16. Dissents appear to be on the rise. Between 1953 and 2000, the figure rose to two-thirds of cases.
17. See LEE EPSTEIN ET AL., THE SUPREME COURT COMPENDIUM: DATA, DECISIONS & DEVELOPMENTS 227-31 tbl.3-2 (2007).
18. Professor Perry details another disincentive for publishing dissents from certiorari: Justices do not want the bar to know precisely why cases are granted or denied
19. This stands in stark contrast to our theory here, but because we are attempting to explain some and not all dissents, both theories could be correct
20. Gonzales v. Raich, 545 U.S. 1 (2005).
21. (O'Connor, J., dissenting) (" If I were a California citizen, I would not have voted for the medical marijuana ballot initiative; if I were a California legislator I would not have supported the Compassionate Use Act. But whatever the wisdom of California's experiment with medical marijuana, the federalism principles that have driven our Commerce Clause cases require that room for experiment be protected in this case. For these reasons I dissent." ).
22. The other case was Kelo v. City of New London, 545 U.S. 469 (2005).
23. In an address to the Clark County Bar Association, Justice Stevens stated: "I have no hesitation in telling you that I agree with the policy choice made by the millions of California voters."
24. John Paul Stevens, Assoc. Justice, Supreme Court of the U.S., Judicial Predilections, Address to the Clark County Bar Association (Aug. 18, 2005), in 6 NEV. L.J. 1, 4 (2005).
25. But given the broader stakes for the power of Congress to regulate commerce, he added that "our duty to uphold the application of the federal statute was pellucidly clear."
26. This ensures that we are not confusing a signal from the majority opinion, or a non-signal, when federalism is in fact a determinant of a case's outcome
27. We are limited to this time period because we use James Gibson's Phase II Judicial Database, supra note 5, for information on whether the authors of case opinions make statements about whether federal or state powers are relevant to the opinion, for all majority, dissenting, and concurring opinions. Unfortunately, Gibson has not yet updated his database, but this limitation should not substantially affect our results.
28. Evans v. Newton, 382 U.S. 296, 297 (1966).
29. Evans v. Newton, 148 S.E.2d 329, 330 (Ga. 1966).
30. Evans v. Abney, 165 S.E.2d 160, 163-64 (Ga. 1968).
31. Evans v. Abney, 396 U.S. 435, 437 (1970).
32. Evans v. Newton, 382 U.S. 296 (1966).
33. Evans v. Abney, 396 U.S. 435 (1970).
34. Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394 (1981).
35. (" A final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action." ).
36. (Brennan, J., dissenting) (" An action arising under state law may not be removed solely because a federal right or immunity is raised as a defense." ).
37. Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987).
38. (" Caterpillar does not seek to point out that the contract relied upon by respondents is in fact a collective agreement; rather it attempts to justify removal on the basis of facts not alleged in the complaint. The 'artful pleading' doctrine cannot be invoked in such circumstances." (citing Moitie, 452 U.S. at 410 (Brennan, J., dissenting))).
39. Amalgamated Ass'n of St., Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274, 276 (1971) (" [The] National Labor Relations Act pre-empts state and federal court jurisdiction to remedy conduct that is arguably protected or prohibited by the Act." ).
40. Amalgamated Ass'n of St., Elec. Ry. & Motor Coach Employees v. Lockridge, 403 U.S. 274 (1971).
41. (" I could not join the opinion of the Court since it unqualifiedly applies the same doctrine where the conduct of the union is only arguably protected under the federal law." ).
42. Oil, Chem. & Atomic Workers Int'l Union v. Mobil Oil Corp., 426 U.S. 407 (1976).
43. (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963)). Note, however, that in this case, Texas's statute did not satisfy § 14(b) "because most of the employees' work is done on the high seas, outside the territorial bounds of the State of Texas, [and so] Texas' right- to-work laws cannot govern the validity of the agency-shop provision at issue here."
44. A Quantity of Copies of Books v. Kansas, 378 U.S. 205 (1964).
45. (" [The] use of these warrants implicates questions whether the procedures leading to their issuance and surrounding their execution were adequate to avoid suppression of constitutionally protected publications." ).
46. Jacobellis v. Ohio, 378 U.S. 184 (1964).
47. Miller v. California, 413 U.S. 15 (1973).
48. (" [T]he States have a legitimate interest in prohibiting dissemination or exhibition of obscene material when the mode of dissemination carries with it a significant danger of offending the sensibilities of unwilling recipients or of exposure to juveniles." ).
49. Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).
50. (" Mr. Justice Harlan, on the other hand, believed that the Federal Government in the exercise of its enumerated powers could control the distribution of 'hard core' pornography, while the States were afforded more latitude to '[ban] any material which, taken as a whole, has been reasonably found in state judicial proceedings to treat with sex in a fundamentally offensive manner, under rationally established criteria for judging such material.'" (quoting Jacobellis, 378 U.S. at 204 (Harlan, J., dissenting)) (citing Ginzburg v. United States, 383 U.S. 463, 493 (1966) (Harlan, J., dissenting); A Quantity of Copies of Books v. Kansas, 378 U.S. 205, 215 (1964) (Harlan, J., dissenting); Roth v. United States, 354 U.S. 476, 496 (1957) (Harlan, J., dissenting)).
51. (" Although there is no conclusive proof of a connection between antisocial behavior and obscene material, the legislature of Georgia could quite reasonably determine that such a connection does or might exist." ).
52. (" The States, of course, may follow such a 'laissez-faire' policy and drop all controls on commercialized obscenity, if that is what they prefer, just as they can ignore consumer protection in the marketplace, but nothing in the Constitution compels the States to do so with regard to matters falling within state jurisdiction." ).
53. Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
54. See, e.g., Robert L. Boucher, Jr. & Jeffrey A. Segal, Supreme Court Justices as Strategic Decision Makers: Aggressive Grants and Defensive Denials on the Vinson Court, 57 J. POL. 824, 825-26 (1995).
55. Gregory A. Caldeira, John R. Wright & Christopher J.W. Zorn, Sophisticated Voting and Gate-Keeping in the Supreme Court, 15 J.L. ECON. & ORG. 549 passim (1999).
56. Kevin T. McGuire & Gregory A. Caldeira, Lawyers, Organized Interests, and the Law of Obscenity: Agenda Setting in the Supreme Court, 87 AM. POL. SCI. REV. 717, 717-18 (1993).
57. See generally FORREST MALTZMAN, JAMES F. SPRIGGS II & PAUL J. WAHLBECK, CRAFTING LAW ON THE SUPREME COURT: THE COLLEGIAL GAME (2000).
58. (Highlighting the extent to which strategic interactions among the Justices shape the Court's opinions)
59. (Finding evidence for aggressive grants but not for defensive denials, and theorizing and finding that a decision to grant certiorari is a function of a desire to reverse, the support the Justice expects from the rest of the Court, and an interaction between these two variables). Professors Boucher and Segal find that the extent of strategic behavior varies by individual Justice.
60. (" It was clear that strategic considerations tended to be the exception rather than the rule for all of the justices, though some justices were clearly strategic more often than others." ).
61. This is a fairly standard assumption that scholars studying the courts make
62. See, e.g., Lee Epstein, Jeffrey A. Segal & Jennifer Nicoll Victor, Dynamic Agenda-Setting on the United States Supreme Court: An Empirical Assessment, 39 HARV. J. ON LEGIS. 395, 420 (2002).
63. Some scholars, however, assume the opposite. E.g., Lawrence Baum, Policy Goals in Judicial Gatekeeping: A Proximity Model of Discretionary Jurisdiction, 21 AM. J. POL. SCI. 13, 17 (1977).
64. One of the few studies to challenge this notion is John F. Krol & Saul Brenner, Strategies in Certiorari Voting on the United States Supreme Court: A Reevaluation, 43 W. POL. Q. 335, 338 (1990).
65. But arguably their results actually support the hypothesis that judges consider their colleagues' likely actions. Of the three hypotheses relating to this topic that they test, the evidence supports two, and the one the evidence does not support relates to predicting the behavior of uncertain judges only.
66. Saul Brenner, The New Certiorari Game, 41 J. POL. 649, 651 (1979).
67. (" Justices can be expected to calculate with a high degree of accuracy for they have the motivation, ability, and opportunity to do so." ).
68. See, e.g., Gregory A. Caldeira & John R. Wright, The Discuss List: Agenda Building in the Supreme Court, 24 L. & SOC'Y REV. 807, 828-29 (1990).
69. (Showing that the filing of amicus briefs greatly increases the odds that the Court will grant certiorari)
70. Interview with Simon Mole, Intake Dir., Colorado ACLU, in Denver, Colo. (May 6, 2001) (on file with author).
71. On the role of other interest group-based litigation, see VANESSA A. BAIRD, ANSWERING THE CALL OF THE COURT: HOW JUSTICES AND LITIGANTS SET THE SUPREME COURT AGENDA 46-48 (2007).
72. Interview with Steven Shapiro, Legal Dir., National ACLU, in N.Y., N.Y. (May 18, 2001) (on file with author).
73. WILLIAM H. RIKER, THE ART OF POLITICAL MANIPULATION, at ix (1986).
74. See Tonja Jacobi, The Judicial Signaling Game: How Judges Shape Their Dockets, 16 SUP. CT. ECON. REV. 1, 11-13 (2008).
75. (Discussing the signaling interaction between judges and litigants)
76. See Vanessa A. Baird, The Effect of Politically Salient Decisions on the U.S. Supreme Court's Agenda, 66 J. POL. 755, 756 (2004).
77. (" [T]he strategy is to figure out a way to appeal to the tie-breaker, or the justices that are ideologically in the center." ).
78. ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS 162 tbl.C-5 (2004), available at http://www.uscourts.gov/judbus2004/appendices/c5.pdf.
79. B-4, available at http://www.uscourts.gov/judbus2004/appendices/b4.pdf.
80. The time-series analysis reported here looks at the effect of an index measuring "important" decisions on the future caseload of cases in that policy area. We used a simple Prais-Winsten regression. Important cases are measured by counting the number of cases that are reported on the front page of the New York Times.
81. See Lee Epstein & Jeffrey A. Segal, Measuring Issue Salience, 44 AM. J. POL. SCI. 66, 72 (2000).
82. Declarations of unconstitutionality; cases that formally reverse precedent; and the proportion of cases that reverse lower court decisions. Each indicator is standardized on a scale of 0 to 1 and is then summed. This index is meant to indicate signals from the Court that at least some subset of Justices considers this policy area a priority.
83. On the weight that Justices give to finding an appropriate vehicle to develop an area of the law
84. See Lee Epstein & Olga Shvetsova, Heresthetical Maneuvering on the US Supreme Court, 14 J. THEORETICAL POL. 93, 104-13 (2002).
85. See S. Sidney Ulmer, Issue Fluidity in the U.S. Supreme Court: A Conceptual Analysis, in SUPREME COURT ACTIVISM AND RESTRAINT 319, 322 (Stephen C. Halpern & Charles M. Lamb eds., 1982).
86. See Kevin T. McGuire & Barbara Palmer, Issue Fluidity on the U.S. Supreme Court, 89 AM. POL. SCI. REV. 691, 691 (1995).
87. See Lee Epstein, Jeffrey A. Segal & Timothy Johnson, The Claim of Issue Creation on the U.S. Supreme Court, 90 AM. POL. SCI. REV. 845, 845 (1996).
88. (" [T]he sua sponte doctrine, namely, the practice disfavoring the creation of issues not raised in the record before the Court, is a norm." ).
89. See Andrew D. Martin & Kevin M. Quinn, Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the U.S. Supreme Court, 1953-1999, 10 POL. ANALYSIS 134 (2002).
90. See, e.g., Bernard Grofman & Timothy J. Brazill, Identifying the Median Justice on the Supreme Court Through Multidimensional Scaling: Analysis of "Natural Courts" 1953-1991, 112 PUB. CHOICE 55, 58 (2002).
91. (Noting that a single dimension explains much of the Justices' voting behaviors). Some law scholars, however, take.
92. See KEITH T. POOLE & HOWARD ROSENTHAL, CONGRESS: A POLITICAL- ECONOMIC HISTORY OF ROLL CALL VOTING 229 (1997).
93. (" The most recent Congresses are highly unidimensional, very polarized, and fit the spatial model extremely well." ).
94. Keith T. Poole, Changing Minds? Not in Congress!, 131 PUB. CHOICE 435, 437 (2007).
95. (Reporting that voting in Congress is almost exclusively one- dimensional, such that now "a single dimension accounts for about 92 percent of roll call voting" )
96. See generally Pablo T. Spiller & Emerson H. Tiller, Invitations to Override: Congressional Reversals of Supreme Court Decisions, 16 INT'L REV. L. & ECON. 503 (1996).
97. (Modeling decisionmaking as a product of a substantive legal issue and federalism, and providing initial empirical evidence of some cases dividing Justices by these two dimensions)
98. Lee Epstein & Tonja Jacobi, Super Medians, 61 STAN. L. REV. 37, 73-89 (2008).
99. Scholars have struggled to provide a systematic theory of why judges publish dissents
100. Thus, even if federalism is purely a methodological means of reaching an outcome that each judge would prefer on the first dimension, different majorities nonetheless may form when only one dimension is at play. In fact, our empirical results show that federalism is not just a proxy for conservative ideology, but also results in liberal movements in outcomes. See infra Part III.
101. See KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES 46-60 (2d ed. 1963).
102. Richard D. McKelvey, Intransitivities in Multidimensional Voting Models and Some Implications for Agenda Control, 12 J. ECON. THEORY 472, 472 (1976).
103. Norman Schofield, Transitivity of Preferences on a Smooth Manifold of Alternatives, 14 J. ECON. THEORY 149, 149 (1977).
104. Justice Scalia joined the majority in United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000), both of which favored restrictions on the federal government and protection for traditional state activities.
105. Justice Scalia's overall ideological score, however, was a very conservative 2.736 in the 2008 Term, Andrew D. Martin & Kevin M. Quinn, Martin-Quinn Scores, http://mqscores.wustl.edu/measures.php (last visited Oct. 3, 2009), which is compatible with the strong law and order substantive outcome that Raich enabled.
106. Harold J. Spaeth, United States Supreme Court Judicial Database, 1953-1997 Terms (ICPSR Study No. 9422, 1999), available at http://dx.doi.org/10.3886/ICPSR09422.
107. These policy area categories match Spaeth's coding of "Value" from the United States Supreme Court Judicial Database fairly closely, with a few exceptions: the separation of environmental cases into their own category, the inclusion of personal injury and government liability with noncriminal due process cases, and the inclusion of state and federal taxation into the same category. Miscellaneous and attorney law issues are excluded from the analysis.
108. This category includes issues of whether the nation or the state has authority in the area of police powers to promote the health, welfare, safety, and morals of the citizens; federal preemption of state jurisdiction and state court jurisdiction; whether there should be national or uniform rules of behavior; and whether states should be permitted to make their own rules. The intercoder reliability for whether federalism is mentioned is 88 percent.
109. We include federalism as one of the policy areas in the analysis. This is somewhat confusing because we are talking about the number of cases within the policy area of federalism that explicitly mention the balance of powers between states and the federal government. It seems as though all federalism cases would be about this balance of power. But not all issues within the policy area of federalism are explicitly about the balance of power between states and the federal government. For example, issues of state versus federal ownership, taxation, interstate disputes, and the resolution of private property disputes such as marital property disputes, do not necessarily fall within the category of resolving the balance of power between states and the federal government. Therefore, not all cases within the policy area of federalism are coded positively as having invoked the issue of intergovernmental balance of power. Cases about judicial power might not seem to involve federalism questions, but these cases are coded positively for federalism when the case is about the balance of power between states and federal courts. Technically, all cases that reach the Supreme Court implicitly deal with whether federal jurisdiction applies because it is implied in whether the Supreme Court has the power to hear the case at all. Nevertheless, only opinions in which the Justices explicitly assess whether the case invokes questions about the balance of federal-state power are coded positively as raising federalism as an issue.
110. Between the Warren and Burger Courts, the average intercoder reliability of this variable is 99 percent. It is possible that in a small number of cases, the dissenting opinion is not actually ideologically opposite to the majority opinion. The introduction of such measurement error should not be correlated with the tendency of the Court to be liberal or conservative, and will lead to inefficient rather than biased estimates, thus resulting in more conservative estimates of findings in the analysis.
111. See Lee Epstein & Gary King, The Rules of Inference, 69 U. CHI. L. REV. 1, 1-14 (2002).
112. (Reviewing the increasing use of formal empiricism in legal analysis)
113. See Gregory C. Sisk & Michael Heise, Judges and Ideology: Public and Academic Debates About Statistical Measures, 99 NW. U. L. REV. 743, 748-49 (2005).
114. (Describing increased public notice of empirical research on judicial decisionmaking)
115. See, e.g., Lee Epstein, Thomas G. Walker & William J. Dixon, The Supreme Court and Criminal Justice Disputes: A Neo-Institutional Perspective, 33 AM. J. POL. SCI. 825, 830-35 (1989).
116. We would like to thank Michael Bailey for this example
117. See Michael A. Bailey, Comparable Preference Estimates Across Time and Institutions for the Court, Congress and Presidency, 51 AM. J. POL. SCI. 433, 436-38 (2007).
118. (Elaborating on associated problems arising from assuming direct translation of these scores across time within an institution, as well as across institutions)
119. Tonja Jacobi, Competing Models of Judicial Coalition Formation and Case Outcome Determination, 1 J. LEGAL ANALYSIS 411, 445 (2009).
120. Tonja Jacobi & Matthew Sag, Taking the Measure of Ideology: Empirically Measuring Supreme Court Cases, 98 GEO. L.J. (forthcoming Nov. 2009), available at http://ssrn.com/abstract=1345982.
121. Using the percentage liberal measure, conservative dissents move the Court in a conservative direction by 6.04 percent, and liberal dissents move the Court in a liberal direction by 13.58 percent.
122. The p-values using this measure are 0.03 and 0.02 respectively-enough to establish the effect with confidence.
123. This is comparable to our results, presented infra Part III.B.
124. (Introducing the D-NOMINATE scores of congressional preferences)
125. In 2004, Justice O'Connor held the position of median Justice with a Martin-Quinn score of 0.08. With her retirement and the death of Chief Justice Rehnquist, Justice Kennedy has become the median Justice with a Martin-Quinn score of 0.49. Media portraits of Justice Kennedy as the Court's new swing vote fit very well with Professors Martin and Quinn's analysis.
126. See, e.g., Robert Barnes, In Second Term, Roberts Court Defines Itself; Many 5 to 4 Decisions Reflect Narrowly Split Court That Leans Conservative, WASH. POST, June 25, 2007, at A3.
127. Robert Barnes, Justice Kennedy: The Highly Influential Man in the Middle; Court's 5 to 4 Decisions Underscore His Power, WASH. POST, May 13, 2007, at A1.
128. Historically, the most extreme Justices on the Court since 1937 were Justice Douglas in 1974, who scored -6.33, and then-Justice Rehnquist in 1975, who scored 4.31.
129. When Rehnquist became Chief Justice, he became more moderate, with an average score of 1.48. The most consistently conservative Justice on the Court has been Justice Thomas, with a score of 3.77.
130. The historical mean of the Court is approximately 0. Court observers would agree that Justice Stevens is more liberal than Justices Ginsburg, Souter, and Breyer, who in turn are more liberal than Justice Kennedy. They would also agree that Justices Alito and Roberts are more conservative than Justice Kennedy but less conservative than Justice Scalia, who is only less conservative than Justice Thomas.
131. See Matthew Sag, Tonja Jacobi & Maxim Sytch, Ideology and Exceptionalism in Intellectual Property: An Empirical Study, 97 CAL. L. REV. 801, 838 (2009).
132. (Finding that when using both Martin-Quinn scores and party of the appointing president, the Martin-Quinn scores soak up all of the explanatory power of party of the appointing president)
133. (Showing the superiority of the mean of the majority coalition measure to the traditional percentage liberal-conservative measure). A qualitative analysis of the mean of the majority coalition measure also reveals that it measures the placement of Supreme Court cases fairly well. For example, the most conservative discrimination case on the Supreme Court's agenda from 1953 to 2000, according to our measure, is San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973).
134. This is probably the case that stands out in people's minds as one of the most conservative discrimination cases in the period analyzed, because it allows the unequal distribution of funds for schools, even though that distribution largely correlated with national origin. Some might argue that this decision reverted back to a de facto discrimination that would have allowed more discrimination than Plessy v. Ferguson, 163 U.S. 537 (1896), which condoned "separate but equal" treatment under the Fourteenth Amendment.
135. The most liberal case in the policy area of discrimination in the time frame is Missouri v. Jenkins, 495 U.S. 33 (1990), which sustained a local court order allowing local officials to ignore state tax laws about raising money for failing schools to prevent further white flight to the suburbs.
136. This case was extremely controversial, and many states requested that Congress take action to overturn the decision. The Supreme Court finally overturned their own decision five years later in Missouri v. Jenkins, 515 U.S. 70 (1995).
137. Note that we are testing the change in the ideological dimension, not the exact position in two-dimensional space. We are not measuring the movement within a federalism dimension; rather, we are examining the extent to which Justices who have voted in a particular way on the ideological dimension can be persuaded to vote differently when litigants frame the issues in terms of federalism. Although our results in Figures 8 and 9 are suggestive that a second federalism dimension is operative in judicial decisionmaking, our analysis does not depend on establishing that Justices line up often enough in a consistent manner to constitute a significant second dimension in all judicial decisionmaking. Rather, we test whether federalism is sufficiently salient to alter outcomes in the ideological space.
138. The most common Judicial Power issues are judicial review of administrative agencies, resolution of circuit conflict or conflict between other courts, mootness, jurisdiction, Federal Rules of Civil Procedure, writ improvidently granted, comity, personal injury, venue, private or implied cause of action, justiciable questions, and standing
139. We use Ordinary Least Squares parameter estimates with panel corrected standard errors, according to the recommendation of Professors Beck and Katz
140. See Nathaniel Beck & Jonathan N. Katz, What to Do (and Not to Do) with Time-Series Cross-Section Data, 89 AM. POL. SCI. REV. 634, 634-35 (1995).
141. Because we are dealing with time-series data-that is, data that includes multiple years of Court activity-we need to check that our results are not perverted by autocorrelation-that is, regression results shaped by the internal correlation of a variable with itself over time. To deal with autocorrelation, we include a specification for an autocorrelation term of the first order. For example, we include a one-year-lagged version of the variable. When there are no cases that mention federalism in the majority opinion, there is missing data on the dependent variable. In these cases, we substituted lagged values of the dependent variable. In cases in which there are four years of continuous missing data, we substituted the mean of the majority opinion for all cases. This is problematic because it includes possibilities of movements that were not caused by outcomes affected by the transformation. We therefore corroborated our analysis using only those cases in which majority opinions mention federalism, but we use pair- wise regression (otherwise, computation is impossible). The results are substantively identical.
142. When a hypothesis specifies an expected difference, but not the direction of that difference, a two-tailed test is appropriate. But when the hypothesis includes the directionality of the effect, a one-tailed test is appropriate. Using a 0.05 test of statistical significance under a one-tailed test, the null hypothesis can be rejected if the value of the test statistic falls in the top or bottom 0.05 end of the distribution, whichever was hypothesized. In contrast, under a two-tailed test, the null hypothesis is rejected if the value falls in either end of the distribution, but only if it falls in the 0.025 range. Both distributions add up to 5 percent, resulting in 95 percent confidence in the results, but the direction of the effect under a one-tailed test must be prespecified in the hypothesis.
143. We estimated using Generalized Least Squares computing Ordinary Least Squares with panel-corrected standard errors according to the recommendations of Professors Beck and Katz, supra note 124, at 634-35
144. We specified a model that allows for correlation among the cross sections, controlled for variation in the number of issues across policy areas by including a dummy variable for each policy area, and included a specification for an autocorrelation term of the first order
145. The effect of conservative signals is significant beyond 99 percent confidence; the effect of liberal signals just approaches significance with 94 percent confidence
146. See Paul Brest, The Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship, 90 YALE L.J. 1063, 1078-85 (1981).
147. Jan Palmer, An Econometric Analysis of the U.S. Supreme Court's Certiorari Decisions, 39 PUB. CHOICE 387, 387-90 (1982).
148. See, e.g., JAMES M. ENELOW & MELVIN J. HINICH, THE SPATIAL THEORY OF VOTING: AN INTRODUCTION 131-68 (1984).
149. Richard D. McKelvey & Norman Schofield, Generalized Symmetry Conditions at a Core Point, 55 ECONOMETRICA 923, 923-33 (1987).
150. Thomas Romer & Howard Rosenthal, Political Resource Allocation, Controlled Agendas, and the Status Quo, 33 PUB. CHOICE 27, 27-29 (1978).
151. Kenneth A. Shepsle & Barry R. Weingast, The Institutional Foundations of Committee Power, 81 AM. POL. SCI. REV. 85, 85-92, 100-02 (1987).
152. See Andrew F. Daughety & Jennifer F. Reinganum, Speaking Up: A Model of Judicial Dissent and Discretionary Review, 14 S. CT. ECON. REV. 1, 2-7 (2006).
153. See Andrew P. Morriss, Michael Heise & Gregory C. Sisk, Signaling and Precedent in Federal District Court Opinions, 13 S. CT. ECON. REV. 63, 64-69 (2005).
154. Alvaro Bustos & Tonja Jacobi, Strategic Judicial Preference Revelation: Signaling in Judicial Nominations 2-5 (Jan. 8, 2006).
155. (Unpublished manuscript, on file with the Duke Law Journal)