Smaller, Closer, Dirtier: Diesel Backup Generators in California

Quantifies the threat to air quality and human health by backup generators, and examines air quality in Los Angeles, San Diego, Sacramento, and Fresno, with some analysis of San Francisco as well

The Success of Former Solicitors General in Private Practice: Costly and Unnecessary?

Article published in the Michigan State Law Review

The Roberts Court and Oral Arguments: A First Decade Retrospective

This Article summarizes some prominent data points of the Roberts Court justices’ behavior during oral arguments at the Supreme Court. Johnson relays accounts from observers who have recognized an increase in questioning from the justices during oral arguments. The Articles suggests this increase may be attributed to the more talkative style of newer justices, as well as the changing role of the questions during oral arguments, which can inform the justices about their fellow judges’ thoughts and opinions. The Article concludes that these trends in questions, number of words spoken, and interruptions are likely to change as more attention is placed on the importance of oral arguments

Supreme Court Opinions and Audiences

This Article evaluates different rhetorical strategies Supreme Court justices employ in writing their opinions for specific audiences. Black, Owens, Wedeking, and Wohlfarth suggest justices keep lower federal courts, state governments, federal bureaucratic agencies, and the public in mind when crafting decisions, particularly to ensure compliance with the decision and avoid non-compliance. The Article identifies opinion clarity as a means of ensuring lower federal courts will follow precedent, as well as a way for smaller and less sophisticated bureaucratic agencies to avoid shirking the Court’s rulings. The Article concludes judicial clarity is only one of an arsenal of rhetorical devices used by the Supreme Court justices, and further evaluation and research may be helpful

Ideology, Qualifications, and Covert Senate Obstruction of Federal Court Nominations

Scholars, policymakers, and journalists have bemoaned the emphasis on ideology over qualifications and party over performance in the judicial appointment process. Though, for years, the acrimony between the two parties and between the Senate and President remained limited to appointments to the United States Supreme Court, the modern era of judicial appointments has seen the so-called “appointments rigor mortis” spread throughout all levels of judicial appointments. A host of studies have examined the causes and consequences of the growing acrimony and obstruction of lower federal court appointments, but few rely on archival data and empirical evidence to examine the underlying friction between the parties and the two branches. In a unique study, the authors examine archival data to determine the conditions under which Senators obstruct judicial nominations to lower federal courts. More specifically, the authors examine one form of Senate obstruction — the blue slip — and find that Senators use their blue slips to block ideologically distant nominees as well as unqualified nominees. More importantly, however, the authors find that among nominations to federal circuit courts, Senators block highly qualified nominees who are ideologically distant from them just as often as they block unqualified nominees who are ideologically distant from them. That is, stellar qualifications do not appear to mitigate the negative effects of ideological distance. The fact that blue slips occur in private, away from public view, allows Senators to block nominees entirely on ideological grounds, without fear of individualized public retribution. Senators, in short, have taken an aggressive role in blocking highly qualified nominees who would otherwise make significant — but opposing — policy and who might one day become credible nominees to the Supreme Court were their nominations to move forward. By killing these nominations in the cradle, and outside the public view, Senators can block or delay the confirmation of judges with whom they disagree ideologically. The authors point out that policymakers and scholars who seek to reform the judicial appointment process must therefore be very clear about their goals. If a reform’s goal is to minimize the role of Senate ideology in the appointment process, then proposals that insulate the process from the public eye are likely to backfire. For, as the data show, Senators take advantage of insulation to achieve ideological goals. On the other hand, if a reform’s goal is to maximize the role of Senate ideology — perhaps to offset the President’s first mover advantage or to recognize and directly address the fact that courts are policymaking bodies — then proposals that insulate the process from the public eye are likely to accomplish that goal

Upending a Global Debate: An Empirical Analysis of the U.S. Supreme Court’s Use of Transnational Law to Interpret Domestic Doctrine,

Over the last ten years, judges, scholars, and policymakers have argued — quite vehemently at times — about whether U.S. courts should use transnational sources of law to interpret domestic legal doctrine. All eyes in this debate focus on the U.S. Supreme Court and its use, misuse, and alleged use of transnational law. And almost all the debates are normative. Some scholars and judges argue the Court is correct to use transnational law. Others believe to do so is constitutional apostacy. Still, the controversy seems to have generated more heat than light. Among the clamor can be found little empirical work on the conditions under which Supreme Court Justices actually use transnational law. Is it in fact the case that only liberal Justices employ transnational law — or do conservatives as well? In addition, there is little work on which countries Justices cite when they do use transnational law. Do they cherry pick whichever country works best in the given case, or is there a lower bound of plausibility when selecting countries to examine and cite? The authors provide the most systematic empirical exploration of the Court’s use of transnational law to date. Their results challenge conventional wisdom and prove to upend the existing debates over transnational law. The data show that Justices are more likely to reference transnational law when they exercise judicial review and when they overturn precedent, which likely explains much of the controversy around the practice. Importantly, the data show, further, that all Justices cite transnational law. Liberals cite transnational law when they render liberal decisions, and conservatives cite transnational law when they render conservative decisions. Liberals and conservatives alike employ such law because they are both ideologically conscious, strategic judicial actors who seek to support their decisions with as much persuasive material as possible. Finally, the results suggest that Justices cite countries with regard to their political and legal characteristics. They cite what the public would consider to be among the most legitimate countries across the globe. In other words, on the whole, Justices seem to borrow from countries most like the U.S. Whether these results are good or bad is unclear; what is clear, however, is that the normative debate over using transnational law must take a turn and address the authors’ findings

The Success of Former Solicitors General in Private Practice: Costly and Unnecessary?

Article published in the Michigan State Law Review

Advice from the Bench (Memo): Clerk Influence on Supreme Court Oral Arguments

Scholars of the U.S. Supreme Court have long debated the role, and possible influence, of clerks on the decisions their Justices make. In this Paper, we take a novel approach to analyze this phenomenon. We utilize pre-oral argument bench memos sent to Justice Harry A. Blackmun from his clerks. Specifically, we use these memos to determine whether Justice Blackmun asked questions of counsel that were recommended by his clerks in the memos. Our data indicate Justice Blackmun often followed his clerks’ advice. Accordingly, we provide another important link to demonstrate Supreme Court clerks can and do affect how their Justices evaluate cases