Silent Concurrences

The silent concurrence is a puzzling institutional practice given that the long understood benefits of separate opinion production require that they be written. Unfortunately, reasons for concurring silently are opaque by definition and as a result little progress has been made toward understanding this puzzling institutional practice. In this article, I leverage private papers from the Burger Court to explain why justices sometimes concur silently. These records indicate that myriad factors precipitate this practice, including time constraints, perceptions about case importance, reluctant vote switching, uncertainty about the proper disposition or legal rule, a desire to maintain voting consistency while withholding support for disfavored precedents, and bargaining failures over opinion language and scope

The Political Geography of Plea Bargaining in Federal Death Penalty Cases

This Article employs the Breaking Bad counterfactual to motivate a preliminary empirical analysis of plea bargaining outcomes in federal capital cases. Given the Justice Department’s express commitment to applying the federal death penalty uniformly across states, New Mexico’s lack of a death penalty should be immaterial in determining whether Walt and other characters would have faced the federal death penalty. Nonetheless, scholars have demonstrated that there is considerable geographic variation in the federal death penalty’s administration. Moreover, scholars have devoted considerable attention to illuminating the “[s]ignificant federalism and state sovereignty issues lurk[ing] beneath the surface of a nationally uniform federal death penalty.

Silent Concurrences

The silent concurrence is a puzzling institutional practice given that the long understood benefits of separate opinion production require that they be written. Unfortunately, reasons for concurring silently are opaque by definition and as a result little progress has been made toward understanding this puzzling institutional practice. In this article, I leverage private papers from the Burger Court to explain why justices sometimes concur silently. These records indicate that myriad factors precipitate this practice, including time constraints, perceptions about case importance, reluctant vote switching, uncertainty about the proper disposition or legal rule, a desire to maintain voting consistency while withholding support for disfavored precedents, and bargaining failures over opinion language and scope

The Applications Docket

The Supreme Court’s applications docket, often misleadingly called the “shadow docket” or “emergency docket,” is controversial, complex, and poorly understood. Using original data spanning nearly two decades, I unravel the docket’s empirical foundations. Applications practice changed fundamentally in recent years. Contrary to conventional wisdom, dispositions declined on average, but this conceals divergent trends: among applications involving stays and injunctions, capital dispositions decreased while noncapital dispositions increased. Moreover, noncapital applications now comprise a larger share of the docket than capital applications. This shift enhances docket salience because, as I show, most capital applications are denied simultaneous to denying plenary review, while most noncapital applications are disposed of without a linked merits petition on file. Thus, whereas applications were once mostly subsumed by agenda setting decisions, they are now increasingly impactful in their own right. Among noncapital applications, other important changes include more initial referrals, grants, reason giving, and written dissents. Among capital applications, requests to vacate stays of execution are increasingly common and typically granted. The results have important implications for debates about procedural legitimacy, institutional transparency, and the broader shadow docket’s conceptual core

The State of American Federalism 2017–2018: Unilateral Executive Action, Regulatory Rollback, and State Resistance

The state of American federalism in 2017–2018 is characterized by federal policy reversals, as the Trump administration and congressional Republicans continue to undo many of the Obama administration’s policies. Two themes are highlighted in this essay. First, major policy changes continue to be undertaken primarily through unilateral executive action, even with Republicans holding the presidency and both the House and Senate. Ideological divisions within the Republican Party prevented Congress from enacting major legislation, save for a tax reform measure, and resulted in policy changes on health care, immigration, and the environment being made through executive and administrative action. Another prominent feature of governance in the early part of the Trump administration has been state resistance to federal directives, taking the form primarily but not exclusively of state attorney general (AG) lawsuits. Democratic AGs filed lawsuits challenging Trump administration actions on immigration and clean energy in particular. Democratic governors and state legislators also took a variety of other actions to resist Trump administration policies. The federal courts also continue to play an active role in shaping and adjudicating controversies impacting federalism

Silent Concurrences

The silent concurrence is a puzzling institutional practice given that the long understood benefits of separate opinion production require that they be written. Unfortunately, reasons for concurring silently are opaque by definition and as a result little progress has been made toward understanding this puzzling institutional practice. In this article, I leverage private papers from the Burger Court to explain why justices sometimes concur silently. These records indicate that myriad factors precipitate this practice, including time constraints, perceptions about case importance, reluctant vote switching, uncertainty about the proper disposition or legal rule, a desire to maintain voting consistency while withholding support for disfavored precedents, and bargaining failures over opinion language and scope