In That Case

Kevin Lewis

October 13, 2021

Political Appointments and Outcomes in Federal District Courts
Ryan Hubert & Ryan Copus
Journal of Politics, forthcoming

Using an original dataset of around 70,000 civil rights cases heard by nearly 200 judges, we study the effect of presidential appointments to federal district courts. We provide the first causal estimates of whether lawsuits end differently depending on their assignment to either a Democratic or a Republican appointed judge. We show Republican appointees cause fewer settlements and more dismissals, favoring defendants by around 5 percentage points. We estimate a similarly sized effect for a sample of civil rights appeals heard in the Ninth Circuit, raising questions about the conventional wisdom that politics matters more at higher levels of the judicial hierarchy. We also find that the effect in district courts has increased over time. For cases filed during the Obama presidency, Republican appointees caused pro­defendant outcomes in 7.4% more cases than Democratic appointees. Our results suggest that district courts are an important -- though neglected -- subject of research for political scientists. 

Beyond Consensus: Gender, Chief Justices, and Leadership on State Supreme Courts
Mikel Norris
Journal of Women, Politics & Policy, forthcoming

Previous research on differences in male and female leadership attribute consensus formation to female leadership styles. However, I argue that consensus in the context of chief justice leadership is more akin to male forms of leadership. Proceeding from Meier and O’Toole’s theory of public management, I argue in this article that female chief justices should value consensus less than other duties and responsibilities. I test hypotheses using a survey of current and former state high court justices. The results show that female justices greatly devalue consensus and are more likely to place importance on interactions with state legislatures. 

What If They Were White? The Differential Arrest Consequences of Victim Characteristics for Black and White Co-offenders
Brendan Lantz, Marin Wenger & Chloe Craig
Social Problems, forthcoming

A substantial body of research focuses on racial disparity in the criminal justice system, with mixed results due to difficulty in disentangling differential offending from racial bias. Additionally, some research has demonstrated that victim characteristics can exacerbate racial disparity in outcomes for offenders, but little research has focused on the arrest stage. We use a quasi-experimental approach that examines incidents involving co-offending pairs to isolate the influence of offender race on arrest, beyond any characteristics of the incident itself, and we test for moderating effects of victim race and sex on racial disparities in arrest. Our findings reveal that, on average, when two offenders of different races commit the same offense together against the same victim, Black offenders are significantly more likely to be arrested than their White co-offending partners, especially for assault offenses. More importantly, this effect -- for both assaults and homicides -- is particularly strong when the victim is a White woman. Because these differences are between two offenders who commit the same offense together, we argue that the most plausible explanation for the differences is the presence of racial bias or discrimination. 

Beliefs about an Offender’s Capacity to Be Rehabilitated: Black Offenders Are Seen as More Capable of Change
Jamie Hughes et al.
Basic and Applied Social Psychology, forthcoming

One goal of incarceration is offender rehabilitation. We examined whether characteristics of an offender affect beliefs about rehabilitation capacity. In three studies using large samples, we investigated inferences about criminal offenders who were described as juveniles or adults (15 or 30 years old). Participants read about or were shown a picture of a White or Black actor. They judged the offender’s maturation, intentionality, and long-term goals, and indicated their rehabilitation capacity. Black offenders, regardless of age, were seen as more capable of rehabilitation, seen as possessing less intentionality, and having more positive long-term goals than White offenders. Discussion focuses on potential explanations for the data including system justification and attitudinal influence. 

Do exonerees face housing discrimination? An email-based field experiment and content analysis
Jeff Kukucka et al.
Psychology, Public Policy, and Law, forthcoming

Two studies examined housing discrimination against exonerees. In Study 1, we sent 1,203 emails inquiring about active apartment listings, each of which ostensibly came from an ex-offender, an exoneree, or a person with no criminal history. Compared to the control condition (51%), both ex-offenders (40%) and exonerees (regardless of whether they self-described as “exonerated,” “wrongly convicted,” or “innocent”; 34–41%) were less likely to receive any response. Moreover, a content analysis suggested that replies to exonerees tended to be less welcoming (e.g., more mentions of background checks, fewer invitations to view the apartment) than replies to nonincarcerated controls. In Study 2, 351 naïve community members rated the helpfulness and friendliness of the replies from Study 1, but no differences between conditions emerged. All told, exonerees experienced both overt and subtler forms of discrimination, regardless of how they self-described. Our findings can, and should, inform contemporary policy decisions over the provision of transitional services for exonerees, especially with respect to housing assistance, expungement, and financial compensation. 

Authorial control of the Supreme Court: Chief Justice Roberts and the Obamacare surprise
Álvaro Bustos & Emerson Tiller
International Review of Law and Economics, September 2021

This article models the interaction of key factors missed in most accounts of Supreme Court decision making -- that is, the interaction of the rules of authorship (chief and senior justice authorship rights), authorship utility (in terms of justice reputation, and the chief justice’s legacy), and the constraint of legal doctrines. We model how (1) the chief justices and senior median justices compete for case authorship and have incentives to vote for policy outcomes they do not prefer in order to gain authorship control of the Court’s opinion (and the added reputation and legacy utility that comes with authorship), and (2) legal doctrines may enhance or restrict such behavior. We illustrate the model through a stylized account of the Supreme Court’s 2012 “Obamacare” decision where the deciding vote of Chief Justice Roberts to uphold Obamacare (along with his authorship of the opinion), and the dissenting vote of Justice Kennedy to repeal Obamacare, follow the implications of our model rather than the counter expectations of Supreme Court experts and commentators at the time. The model has implications for interpreting justice voting and authorship behavior and how the design of legal doctrines influence the justices’ votes and opinion authorship. 

Presumed-blind lineup administrators can influence eyewitnesses’ identification decisions and confidence
Laura Smalarz, Hussein Ireri & Jacob Fink Psychology,
Public Policy, and Law, forthcoming

An overlooked observation in the literature on double-blind lineups is that double-blind lineup administrators sometimes engage in behaviors that could influence eyewitnesses. We tested whether such administrator behaviors influence eyewitnesses’ identification decisions and confidence when eyewitnesses are explicitly instructed that the administrator does not know which lineup member is the suspect, as is recommended as a matter of best practice. Mock-eyewitnesses were paired with a lineup administrator who was a confederate of the research team and who administered a culprit-absent lineup to the eyewitnesses. During the lineup, the administrator provided ostensibly spontaneous behavioral feedback to eyewitnesses of the sort that has been found to sometimes occur in double-blind lineups (e.g., “It seems like you keep coming back to Number 2”) or gave no such behavioral feedback. In a preliminary experiment (N = 77), we secured identifications from all eyewitnesses to assess the effects of behavioral feedback on lineup preferences among identifying witnesses. In the second experiment (N = 238), witnesses could reject the lineup and were again randomly assigned to receive behavioral feedback or no feedback during the lineup. After eyewitnesses made a lineup decision, they reported their confidence and provided other testimony-relevant judgments. Even though witnesses knew that the lineup administrator had no knowledge of which lineup member was the suspect, behavioral feedback from the lineup administrator influenced eyewitnesses’ identification decisions and confidence. These findings provide proof-of-concept that eyewitness evidence collected in double-blind lineups can be contaminated by administrator influence. 

Reducing partisanship in judicial elections can improve judge quality: Evidence from U.S. state supreme courts
Elliott Ash & Bentley MacLeod
Journal of Public Economics, September 2021

Should technocratic public officials be selected through politics or by merit? This paper explores how selection procedures influence the quality of selected officials in the context of U.S. state supreme courts for the years 1947–1994. In a unique set of natural experiments, state governments enacted a variety of reforms making judicial elections less partisan and establishing merit-based procedures that delegate selection to experts. We compare post-reform judges to pre-reform judges in their work quality, measured by forward citations to their opinions. In this setting we can hold constant contemporaneous incentives and the portfolio of cases, allowing us to produce causal estimates under an identification assumption of parallel trends in quality by judge starting year. We find that judges selected by nonpartisan processes (nonpartisan elections or technocratic merit commissions) produce higher-quality work than judges selected by partisan elections. These results are consistent with a representative voter model in which better technocrats are selected when the process has less partisan bias or better information regarding candidate ability.

Decision importance and Black and Hispanic jurors’ judgments of outgroup and ingroup defendants in a trial simulation
Michael Leippe et al.
Psychology, Crime & Law, forthcoming

Because they involve important decisions, should actual trials involve less or more discrimination than trial simulations? Does discrimination occur when defendant and juror both belong to underprivileged groups? In two experiments employing a 2 (decision importance) X 2 (defendant ingroup/outgroup status) design, Black and Hispanic (and some White) college students read a robbery/murder trial transcript. The defendant belonged to participants’ racial/ethnic group or one of the others. Low-decision-importance instructions asked mock-jurors to consider the case carefully. High-decision-importance instructions emphasized the study was a government-sponsored assessment of jurors’ reasoning about a real trial with known guilt/innocence. In Experiment 1 (n = 118), outgroup discrimination – judging outgroup defendants more likely guilty – was evident only under high importance. In Experiment 2 (n = 135), which presented weaker prosecution of the trial and included processing-motivation measures, outgroup discrimination occurred regardless of importance. Black and Hispanic mock-jurors discriminated against defendants of the other group. Greater identity-related processing motivation was reported under high importance. High importance may reduce bias associated with heuristic processing, but promote bias through processing infused with evaluative associations involving social identity and race/ethnicity. The defendant outgroup discrimination regardless of importance suggests prejudice observed in trial simulations may generalize to actual trials. 

Revisiting the Business of State Supreme Courts in the 21st Century
Brent Boyea & Paul Brace
Journal of Empirical Legal Studies, September 2021, Pages 684-696

In this research note, we extend four decades of research mapping the work of state supreme courts since the 1870s employing newly available data to map the work of state high courts into the 21st century. Comparing these recent data with the historical patterns illustrated in past studies, our analysis reveals both stable trends as well as notable changes. Criminal and contract appeals continued to increase, debt and real property appeals continued to decrease, tort appeals stabilized, and public law and family and estates appeals declined markedly in the most recent period after exhibiting stability previously. Combined with these past studies, this research note illustrates both significant stability as well as notable change in the work of state supreme court dockets spanning almost 150 years.


from the


A weekly newsletter with free essays from past issues of National Affairs and The Public Interest that shed light on the week's pressing issues.


to your National Affairs subscriber account.

Already a subscriber? Activate your account.


Unlimited access to intelligent essays on the nation’s affairs.

Subscribe to National Affairs.