COMPUTATIONAL ANALYSIS OF THE CONVERSATIONAL DYNAMICS OF THE UNITED STATES SUPREME COURT

The decisions of the United States Supreme Court have far-reaching implications in American life. Using transcripts of Supreme Court oral arguments this work looks at the conversational dynamics of Supreme Court justices and links their conversational interaction with the decisions of the Court and individual justices. While several studies have looked at the relationship between oral arguments and case variables, to our knowledge, none have looked at the relationship between conversational dynamics and case outcomes. Working from this view, we show that the conversation of Supreme Court justices is both predictable and predictive. We aim to show that conversation during Supreme Court cases is patterned, this patterned conversation is associated with case outcomes, and that this association can be used to make predictions about case outcomes. We present three sets of experiments to accomplish this. The first examines the order of speakers during oral arguments as a patterned sequence, showing that cohesive elements in the discourse, along with references to individuals, provide significant improvements over our "bag-of-words" baseline in identifying speakers in sequence within a transcript. The second graphically examines the association between speaker turn-taking and case outcomes. The results presented with this experiment point to interesting and complex relationships between conversational interaction and case variables, such as justices' votes. The third experiment shows that this relationship can be used in the prediction of case outcomes with accuracy ranging from 62.5% to 76.8% for varying conditions. Finally, we offer recommendations for improved tools for legal researchers interested in the relationship between conversation during oral arguments and case outcomes, and suggestions for how these tools may be applied to more general problems

What Is Judicial Ideology, and How Should We Measure It?

Part I of this Article explores the theoretical problem that scholars use the term “judicial ideology” in the absence of any widespread agreement or clear understanding as to what the term means in the first place. It is difficult for scholars to devise appropriate and broadly acceptable measures of judicial ideology when they and their readers have different concepts—or perhaps no coherent concept at all—of “judicial ideology” in mind. As a result, bona fide intellectual disagreement over the nature of judicial behavior is too easily compounded by outright misunderstanding. Part II discusses three of the most significant and common practical obstacles to the measurement of judicial ideology. First, ideology is not a tangible phenomenon that can be directly observed. Second, judicial behavior is often open to multiple interpretations. Third, judicial ideology may be a multidimensional phenomenon, such that a judge who is liberal in one context may be moderate or conservative in another, or the labels “liberal,” “moderate,” and “conservative” may not seem applicable at all. Parts III and IV of this Article aim to address an important practical need of judicial behavior scholars. There are several ways in which one can measure judicial ideology, but little has been written about how researchers should go about choosing among these methods. Competing considerations of accuracy, convenience, and ease of interpretation make it difficult to know what measurementapproach is most appropriate to the task at hand. In Part III, the relative merits of three popular approaches are identified and discussed: the use of proxy measures, the assessment of judicial ideology based on the actual behavior of the judges in a particular context, and the transplantation of ideology measures developed in one context into other contexts involving partly or wholly different data. Finally, in Part IV, the real-world performance of different measurement approaches are compared, using data drawn from the federal courts of appeals and the Supreme Court

Social Measurement and Causal Inference with Text

The digital age has dramatically increased access to large-scale collections of digitized text documents. These corpora include, for example, digital traces from social media, decades of archived news reports, and transcripts of spoken interactions in political, legal, and economic spheres. For social scientists, this new widespread data availability has potential for improved quantitative analysis of relationships between language use and human thought, actions, and societal structure. However, the large-scale nature of these collections means that traditional manual approaches to analyzing content are extremely costly and do not scale. Furthermore, incorporating unstructured text data into quantitative analysis is difficult due to texts’ high-dimensional nature and linguistic complexity. This thesis blends (a) the computational strengths of natural language processing (NLP) and machine learning to automate and scale-up quantitative text analysis with (b) two themes central to social scientific studies but often under-addressed in NLP: measurement—creating quantifiable summaries of empirical phenomena—and causal inference—estimating the effects of interventions. First, we address measuring class prevalence in document collections; we contribute a generative probabilistic modeling approach to prevalence estimation and show empirically that our model is more robust to shifts in class priors between training and inference. Second, we examine cross- document entity-event measurement; we contribute an empirical pipeline and a novel latent disjunction model to identify the names of civilians killed by police from our corpus of web-scraped news reports. Third, we gather and categorize applications that use text to reduce confounding from causal estimates and contribute a list of open problems as well as guidance about data processing and evaluation decisions in this area. Finally, we contribute a new causal research design to estimate the natural indirect and direct effects of social group signals (e.g. race or gender) on conversational outcomes with separate aspects of language as causal mediators; this chapter is motivated by a theoretical case study of U.S. Supreme Court oral arguments and the effect of an advocate’s gender on interruptions from justices. We conclude by discussing the relationship between measurement and causal inference with text and future work at this intersection

Human Jurisprudence: Public Law as Political Science

This book provides a rare view of a creative scholar at work during a highly productive phase of his career. It shows him as an innovator, theorist, methodologist, “missionary,” critic, and scientist, but he remains, withal, in his fashion, a humanist. He believes that institutions and processes—particularly law, politics, and scholarship—are best understood in human terms. With Holmes, he believes that law is a prediction of what courts will do; hence, to understand law it is necessary to understand judicial behavior. A full explanation of a judge’s behavior would take into account his health (both physical and mental), his personality, his culture and society, and his ideology. Glendon Schubert concedes this but focuses primarily on ideology because he believes the other variables are sublimated in it. Therefore, to him, ideology—attitudes toward human values—is the basic explanation of judicial behavior, and jurisprudence is necessarily human. The studies in this volume are important in the study of judicial behavior, for they broke new ground, and some were forerunners of major books, such as The Judicial Mind, which was published in 1965. Each shows Professor Schubert’s concern at the time they were written, and taken together they show the movement and growth of his ideas and interests

A Quantitative Analysis of Writing Style on the U.S. Supreme Court

This Article presents the results of a quantitative analysis of writing style for the entire corpus of US Supreme Court decisions. The basis for this analysis is the measure of frequency of function words, which has been found to be a useful “stylistic fingerprint” and which we use as a general proxy for the stylistic features of a text or group of texts. Based on this stylistic fingerprint measure, we examine temporal trends on the Court, verifying that there is a “style of the time” and that contemporaneous Justices are more stylistically similar to their peers than to temporally remote Justices. We examine potential “internal” causes of stylistic changes, and conduct an in-depth analysis of the role of the modern institution of the judicial clerk in influencing writing style on the Court. Using two different measures of stylistic consistency, one measuring intra-year consistency on the Court and the other examining inter-year consistency for individual Justices, we find evidence that the writing styles of individual Justices have become less consistent as clerks have taken on a greater role on the Court

The Roberts Court Constitution of Freedom of Speech: Preferences, Principles, and the Study of Supreme Court Decision-making

Since the appointment of Chief Justice G. Roberts to the U.S. Supreme Court, political scientists and legal scholars have assessed the Court’s behavior in a diverse array of cases and issue areas, including those touching on federalism, reproductive rights, voting rights, and economic liberty (cases involving businesses and corporations). Few issues have proven as vexing as the Court’s constitution of the First Amendment’s command “Congress shall make no law…abridging the freedom of speech…” In light of the Court’s ongoing constitution of the scope and coverage of the First Amendment, a narrative has emerged that paints the Court as distinctly conservative. In a number of widely publicized, controversial decisions, the Court under Chief Justice Roberts has incrementally dismantled federal and state efforts at campaign finance reform, made union fundraising more difficult, and restricted the availability of First Amendment protection for students, prisoners, and government employees. This explanation, however intuitive and prevalent, is complicated by another narrative. During the same period, the Court has issued incredibly speech-protective decisions in cases involving the distribution of videos depicting dog fights, violence in videogames, protesters at the funerals of fallen service members, lying about military awards, NGOs working abroad to address the AIDS epidemic, roadside signage, and even government employees. Adding another wrinkle to the fold is entire corpus of anti-speech claimant decisions that have been issued by a unanimous Court, or a Court divided in a way unexpected by the ‘liberals versus conservatives’ characterization of our nation’s highest tribunal. These dual storylines present a puzzle that motivate a set of interrelated research questions: What is the nature of the Roberts Court’s constitution of freedom of expression? Is judicial behavior within this politically salient issue area explained by the ideological preferences or attitudes of the justices? If not, what is the alternative explanation? And, more broadly, what are the limitations of the conventional means by which scholars study judicial behavior? This dissertation explores these questions through a set of conventional and innovative approaches to the study of judicial decision-making. It examines the entire universe of free speech decisions of the Roberts Court from external and internal approaches to the study of judicial decision-making. To do so, the dissertation employs a multi-method approach, including large and medium-N analyses of Roberts Court free speech decisions and qualitative tools of conceptual development and process tracing. This project offers four key findings related to the effect of judicial attitudes on the constitution of protection for freedom of expression during the Roberts Era. First, as indicators have incrementally improved upon accurately measuring a key concept of interest – the ideological direction of decisions in freedom of expression cases – the bivariate relationship between judicial attitudes and ideological voting becomes more tenuous. This suggests the need for a continuing research program focused on conceptually valid operationalization of decision direction in freedom of expression cases and beyond. Second, with the Rehnquist Court Era as a comparison point, the effect of judicial attitudes across all votes during the Roberts Era is statistically significant – stronger conservatism scores correlate positively with a pro-speech decision. While this relationship does not exist for the Rehnquist Court, a conceptual typology of cases comparing the ordering of voting coalitions to the direction of decisions in those cases reveals that the Roberts Court is, in some ways, less ideological than the Rehnquist Court Era. Third, through the tool of process tracing and the use of “hoop tests,” the Roberts Court is best understood as having a conservative orientation though not monolithically so – there is considerable heterogeneity in terms of the ideological orientation and conceptions of the judicial role held by the justices that frequently result in unexpected voting alignments. Fourth, the Court’s certiorari process in free expression controversies is better explained by jurisprudential concerns rather than ideological cues. However, once disaggregating the Court’s certiorari docket by issue area, there is evidence for both the ideological and legal explanations for the Court’s behavior in free expression decisions. The broader finding wrought from this project is that the judicial constitution of contemporary free expression protection in the U.S. cannot be reduced to single-cause explanations. The complex and often secret nature of various stages of judicial decision-making at the US Supreme Court, as well as the competing, longstanding epistemological approaches to understanding judicial behavior, strongly suggests that scholars must take care to question the assumptions of and examine behavior from both “internal” and “external” perspectives on Court behavior. Sacrificing the former at the altar of the latter leaves interested observers without a clear idea of the structure and language through which high politics is contested at the Court – a language that makes some claims possible and others untenable. The reverse is also problematic: Taking the justices at their word and assuming that fidelity to legal principles and sincerely-held conceptions of the judicial role explains judicial behavior ignores what appear to be patterns of partisan or ideologically driven voting. Beyond answering a substantive question of great interest for scholars, lawyers, litigants, and citizens alike, this research presents new directions for the study of judicial decision-making that have great potential for traveling to other issue areas and constitutional courts Syracuse University

Words Get in the Way: The Effect of Deliberation in Collective Decision-Making

We estimate a model of strategic voting with incomplete information in which committee members - judges in the US courts of appeals - have the opportunity to communicate before casting their votes. The model is characterized by multiple equilibria, and partial identification of model parameters. We obtain confidence regions for these parameters using a two-step estimation procedure that allows flexibly for characteristics of the alternatives and the individuals. To quantify the effects of deliberation on outcomes, we compare the probability of mistakes in the court with deliberation with a counterfactual of no pre-vote communication. We find that for most configurations of the court in the confidence set, in the best case scenario deliberation produces a small potential gain in the effectiveness of the court, and in the worst case it leads to large potential losses

Constitutional Law\u27s Conflicting Premises

Doctrinal inconsistency is constitutional law’s special feature and bug. Virtually every salient doctrinal domain presents major precedents operating in tension. Bodies of precedent are rarely abandoned simply because a newer strand makes an older one appear out of place. And when an earlier strand is redeployed or substituted, the once-newer strand likewise persists. This dynamic process tasks law students, often for the first time, with reconciling the seemingly irreconcilable. These doctrinal phenomena share as their root cause dual persistent conflicting premises. Some examples: Standing protects congressional power to monitor the executive branch, or it limits congressional monitoring when the selected means risk foisting the judiciary into executive prerogatives. The Commerce Clause empowers Congress to resolve structural coordination challenges among states, or it ensures a discrete regulatory sphere into which Congress may not enter even as needed to ameliorate such coordination challenges. Equal protection protects African Americans against racially discriminatory laws, or it lets such laws stand provided they are nonsubordinating. Similar conflicting premises pervade such high-profile areas as separation of powers and free speech. Beneath each of these, and other, conflicting bodies of caselaw rest two persistent conflicting premises. Identifying these premises, and explaining the dynamic processes that generate them, proves essential to understanding several of constitutional law’s most critical features, including how various bodies of caselaw fit together. This Article provides the first systematic exploration of this phenomenon along with essential insights that explain several of constitutional law’s most notorious anomalies. These include structural constitutionalism, individual rights, and free speech