The Supreme Court has linked the concept of stare decisis to the protection of judicial legitimacy. In Dobbs v. Jackson Women’s Health Organization, Justice Alito’s majority opinion set forth five factors that called into question the legitimacy of Roe v. Wade, and found that they required an abandonment of the 49- year-old privacy right, for the sake of the rule of law. The next day, however, in New York State Rifle & Pistol Association v. Bruen, the same Court enhanced gun rights by articulating a new methodology for evaluating the validity of gun regulations, relying on a search for centuries-old historical analogues of present-day gun restrictions. We now have data by which to examine how Bruen’s new test has fared in the lower courts, through the lens of the Dobbs factors. Those factors examine the nature of the prior court’s error, the quality of its reasoning, the workability of its rule, the degree to which the prior case has disrupted other areas of law, and the degree of reliance it has invited. We collected and analyzed lower federal court decisions in Second Amendment-related litigation from 2000 to 2023. It turns out that the test announced in Bruen has created a space for judicial discretion that has led to partisan polarization in its application. Considering all five of the Dobbs criteria in light of our empirical findings, we conclude that Bruen poses a threat to the stability, objectivity and determinacy necessary to the rule of law: If Roe had to go, so must Bruen.

What is oral argument in the Supreme Court for? Justices might use it to gather information from counsel (the conventional view), to persuade one another, or to express themselves. We test these accounts using a new dataset, the Roberts Court Oral Argument Corpus, containing every speaker turn in every argument from the 2005 through 2025 terms. Unlike prior work, which examines what justices say conditional on speaking, we treat participation itself—turns and words per justice, per case, per side—as the outcome of interest. Participation is strikingly unequal both across justices and across time. Liberal justices speak more than conservative justice; justices speak more the farther they sit from the Court's ideological median and the more they disagree with the arguing attorney; former law professors speak more; female justices less; and participation declines with tenure. Participation is unrelated to counsel’s experience or gender, and justices ask proportionally fewer questions of experienced advocates. We cannot rule out the information-gathering theory, but the evidence better fits persuasion and self-expression. But if oral argument could do without the attorneys, one might wonder whether it is necessary at all.

Autocratic regimes, now governing 70 percent of the world's population, often come into power by democratic means but then use their authority to undermine the very institutions that sustain democracies, including representation and participation in elections, protection of minority rights, the rule of law, and checks and balances. This erosion of structural guardrails is known as democratic backsliding. The parallels between what autocratic regimes do to cause democratic backsliding in their realms and what the contemporary U.S. Supreme Court has done in its realm are eerie. Like many autocrats, the current Court's supermajority owes its existence to a nominally constitutional, but politically manipulated, process. Also like many autocrats, the Court has proceeded to use legalistic-sounding methods and its considerable institutional prerogatives to increase its own autonomy and power. Indeed, on close inspection, the Court is shown to have behaved in many ways seemingly torn from the autocrats' playbook: degrading the rules governing elections, aggrandizing itself at the expense of the other branches, subverting protection of minority rights, tolerating if not encouraging corruption, and sowing chaos. The Court has thus engaged in a level of judicial usurpation that we call autocratic judging. Only by exploring how this could have happened to our Court will there be any hope of stemming the rise of this creeping threat to the constitutional order. Our study suggests two possible causes: the lack of external checks by the U.S. Congress and the absence of the type of internal constraint that arises when there is a true center or median Justice. That consequential absence is likely to persist in the near term, which leaves all hope of improvement with Congress.

Political scientists regularly rely on a selection-on-observables assumption to identify causal effects of interest. Once a causal effect has been identified in this way, a wide variety of estimators can, in principle, be used to consistently estimate the effect of interest. While these estimators are all justified by appeals to the same causal identification assumptions, they often differ greatly in how they make use of the data at hand. For instance, methods based on regression rely on an explicit model of the outcome variable but do not explicitly model the treatment assignment process, whereas methods based on propensity scores explicitly model the treatment assignment process but do not explicitly model the outcome variable. Understanding the tradeoffs between estimation methods is complicated by these seemingly fundamental differences. In this paper we seek to rectify this problem. We do so by clarifying how most estimators of causal effects that are justified by an appeal to a selection-on-observables assumption are all special cases of a general weighting estimator. We then explain how this commonality provides for diagnostics that allow for meaningful comparisons across estimation methods—even when the methods are seemingly very different. We illustrate these ideas with two applied examples.

Abstract This chapter focuses on the effect of personal characteristics on judging. Early studies tended to draw connections between the judges’ prior professional experience and their decisions; more contemporary work focuses on social identity. A summary of the existing literature shows that regardless of the category, many research results are consistent with in-group bias: judges, like most humans, tend to favour litigants of their own group over outsiders. Depending on one’s perspective, this bias could be seen as offsetting years of ‘exclusionary’ judicial processes, or it could be seen as violating a guiding principle of most courts: to treat all parties equally. Either way, a mix of social identities is essential for ensuring socially diverse courts, which, in turn, may be crucial for developing innovative, high-quality solutions to the kinds of complex problems that confront contemporary courts. The chapter concludes with proposals for forward movement in the analysis of social identity and diversity.

Abstract Comparative judicial behaviour seeks to illuminate the choices judges make and the consequences of their choices for society. This chapter begins with a brief discussion of each key term in this definition: choices, consequences, and comparisons. It then considers the major theoretical approaches to judicial choices: legalism, attitudinal model, rational choice accounts, identity accounts, and ‘thinking-fast’ judging. The chapter concludes with an overview of the book’s content and goals. As readers will discover, despite their common interest in explaining the causes and effects of judicial choices, scholars ask substantively different questions, subscribe to manifold theories, apply multiple methodologies, and pursue varied targets of inquiry. The scholars’ motivations are also diverse, from describing features of judging to offering measures of crucial concepts to making causal inferences to developing implications for law and public policy. Overall, this Handbook unites scholars from many corners of the world and disciplinary pockets to offer up-to date expert roadmaps of the topics falling under the field’s domain, from approaches to judging to staffing the courts to relations among courts and society.

The U.S. Supreme Court's embrace of originalism, and particularly the "history and tradition" method of interpreting constitutional text, is often justified by its defenders as constraining judges from making up the law to match their preferences. This is a testable hypothesis. With the Bruen case in 2022, the Supreme Court moved away from a contemporary means-ends method of interpreting the Second Amendment to an originalist, "history and tradition" one. In this article, we analyze data on gun rights decisions handed down by lower federal courts from 2000 to 2023, finding that the Supreme Court's switch to an originalist jurisprudence did not, in fact, constrain judges-rather, it corresponds with an increase in judicial discretion. Personal factors like partisan identity, gender, race, and careerist considerations shape judicial behavior in the post-Bruen era in ways they did not under the prior regime.

Abstract Almost all theories of judicial behaviour ascribe a key role to political preferences. The idea is that the judges want to align the law with their political commitments—whether ideological or partisan. This chapter explores strategies for measuring and estimating the judges’ political preferences. It consists of two major parts: exogenous measures of political preferences (those that are based on information causally prior to any votes cast or other choices the judges make) and endogenous measures (those that depend on revealed behaviour). The authors detail the strengths and weaknesses of the various measures, and offer suggestions for forward movement. Mostly, though, they encourage readers to keep an open mind as to the best ways to measure political preferences in their own applications.

Abstract Neither legal academics nor social scientists analyse judging solely through the ‘law versus politics’ dichotomy. They have instead expanded their theoretical toolkit to include four other approaches to judging, in addition to standard legalistic (law) and attitudinal (politics) accounts (all of which are covered in this Handbook). Here we focus on the labour market model, which emphasizes personal motivations for judicial choice, especially (i) job satisfaction, (ii) external satisfactions, (iii) leisure, (iv) salary, and (v) promotion. This chapter provides a brief introduction to the labour market model, with emphasis on the importance of the five key personal motivations. It then considers the motivations separately. For each of the key motivations, the chapter identifies the relevant literature and offers proposals for new research.

The Roberts Court has been called the most "___" Court in history, with many different adjectives being offered. Surprisingly, our study of voting data from Supreme Court terms 1937-2021 shows that the Roberts Court is the most "anti-president" Court in that period: It has ruled against the president at a greater rate than any other Court. Should we take this to mean that the Court will be there to protect democracy if an overreaching president tries to trample constitutional limits? Not necessarily. Additional analysis and a deep dive into the cases and reasoning reveal a more complicated picture, of a Court exhibiting historic levels of partisan and loyalty bias as well as a strong penchant for judicial supremacy.

Nearly thirty years have elapsed since the U.S. Supreme Court decided Craig v. Boren, a landmark case the Court's constitutional sex discrimination jurisprudence. In Craig, the justices pronounced that they would apply neither the lowest level of scrutiny-rational basis-nor the highest level-strict scrutiny-to evaluate claims of sex * Please send all correspondence to Lee Epstein. Email: epstein@artsci.wustl.edu; Post: Department of Political Science, Washington University, CB 1063, 1 Brookings Drive, St. Louis, MO 63130. ** Lee Epstein is the Edward Mallinckrodt Distinguished University Professor of Political Science and Professor of Law at Washington University; Andrew D. Martin is Assistant Professor of Political Science at Washington University; Lisa Baldez is Associate Professor of Government at Dartmouth College; Tasina Nitzschke Nihiser is a Ph.D. student at Washington University. We are grateful to the National Science Foundation, the Center for New Institutional Social Science, the Washington University School of Law, and the Weidenbaum Center on the Economy, Government, and Public Policy, for supporting our research. We also owe thanks to participants Washington University's Workshop on Empirical Research the Law (WERL), Susan Appleton, Jeffrey A. Segal, and Nancy Staudt for offering many useful suggestions; and to Scott Friedman, David Lewarchik, Shelby Johnston, and Peter Ryan for outstanding research assistance. We used R, SPSS, and Stata to conduct the analyses presented this paper. The project's web site (http://epstein.wustl.edu/research/sexdiscrimination.html) houses a full replication archive, including a database containing all the cases and variables we used this study, as well as the documentation necessary to reproduce our results. 1 Epstein et al.: sexdiscrimination Published by Trace: Tennessee Research and Creative Exchange, 2004 12 TENNESSEE JOURNAL OF LAW & POLICY [VOL. I, 1] discrimination. Rather, the Court invoked a standard in between the two, now known as intermediate or heightened scrutiny. Under this approach, the Court asks whether a law challenged on equal protection grounds is substantially related to the achievement of an important objective. Certainly the Craig Court's intermediate approach has its supporters; indeed, influential legal scholars are now advocating that courts adopt it to evaluate laws discriminating against gays and lesbians. But to many analysts, Craig (and its progeny) was and remains highly problematic. Among their claims is that the standard it instantiated is so loose and amorphous that it produces unpredictable results. In this article, we seek to bring some empirical teeth to this debate by exploring patterns sex discrimination litigation the U.S. Supreme Court and state courts of last resort. Our chief finding is that the critics of heightened scrutiny probably have the better case. At the very least, the Craig standard-while generating outcomes more favorable to parties alleging sex discrimination than did the traditional rational basis test-does, fact, lead to far less predictable results than either rational basis or strict scrutiny. For reasons that may have little to do with the standard itself, courts are just as likely to uphold sex-based classifications as they are to eradicate them. This finding has important implications for the future of sex discrimination litigation, as well as for the advancement of legal rights for gays and lesbians. As to the former, our results underscore the importance of elevating the standard used to adjudicate sex discrimination claims-a goal, as we demonstrate, that could be achieved several distinct ways. As to gays and lesbians, our findings identify the possible costs and benefits associated with a litigation strategy designed to place their claims of discrimination the intermediate scrutiny basket. 2 Tennessee Journal of Law & Policy, Vol. 1 [2004], Iss. 1, Art. 3 http://trace.tennessee.edu/tjlp/vol1/iss1/3 TENNESSEE JOURNAL OF LAW & POLICY [VOL. I, 1] 13

Scholars have identified serious drawbacks to the independent state legislature (ISL) claim, which precludes state-court review of election laws, thus preventing state guarantees like “free and fair elections” from being enforced. Considering its flaws, we ask why ISL would be pursued so fervently and why the Supreme Court, in Moore v. Harper, adopted a version of it. Examining data that compare election-law outcomes in federal and state supreme courts, we found that state supreme court justices, even if Republican, are not reliable supporters of the GOP electoral agenda. The Roberts court, by contrast, has voted in the GOP-supported direction in most election-law cases it has decided. This, we argue, is why ISL is promoted so vigorously: it takes electoral disputes—such as who can vote, what the rules for counting are, and such—out of the hands of state courts and places them squarely into the hands of the Supreme Court, a reliable partisan ally.

AbstractJudges like to claim that they are impartial decision-makers fully capable of suppressing their personal proclivities, as the rule of law requires. But a century’s worth of studies undermines that view. Going under the name ‘judicial behaviour’, this vast literature shows that many extraneous (non-legal) factors affect the choices judges make. This article focuses on one strand of that literature – the effect of personal characteristics on judging, with emphasis on social identity and social diversity. We show that the literature is bifurcated: studies focusing on the social identity of individual judges (such as their gender, race, and nationality) generate findings consistent with in-group bias, whereas research on the social diversity of judges sitting in panels suggests that benefits can accrue from socially diverse courts. What the two sets of studies have in common, though, is just as important: both could make profound academic and policy contributions but require far more development if they are to realize their potential. We offer proposals for forward movement.

A decade and a half into its life, we ask: How pro business is the Roberts Court? Using a simple objective measure – how often does business win in the Court when it is fighting a non business – we find that the Roberts Court may be the most pro business Court in a century. The win rate for business in the Roberts Court, 63.4%, is 15 percentage points higher than the next highest rate of business wins over the past century (the Rehnquist Court, at 48.3%). The question is why? It is tempting to conclude that this pro business result is purely a function of there being a Republican majority of justices on the Roberts Court. The data suggest that the story is more complex. Additional features that emerge from the data are: (a) It is not just the Republicans on the Roberts Court who are more pro business than in prior Courts, but the Democrats as well; (b) The Government, through the SG’s office and across both Democratic and Republican administrations, has been much more supportive of business positions than in prior eras; (c) An elite Supreme Court bar has emerged in recent years and businesses have hired them disproportionately so as to better influence the Court.

The Roberts Court has ruled in favor of religious organizations far more frequently than its predecessors—over 81% of the time, compared to about 50% for all previous eras since 1953. In most of these cases, the winning religion was a mainstream Christian organization, whereas in the past pro-religion outcomes more frequently favored minority or marginal religious organizations. A statistical analysis suggests that this transformation is largely the result of changes in the Court’s personnel: a majority of Roberts Court justices are ideologically conservative and religiously devout—a significant break from the past. We also explore other possible explanations. The Roberts Court has handed down a number of decisions that suggest a new approach to Court’s religion jurisprudence. The religion clauses of the First Amendment were once understood to provide weak but meaningful protection for non-mainstream religions from discrimination by governments that favored mainstream Christian organizations, practices, or values. The religion clauses provided little protection for mainstream religions—indeed, under the establishment clause, mainstream religion’s influence over government policy was restricted. Under the Roberts Court, the religion clauses have increasingly been used to protect mainstream Christian values or organizations that are under threat from secular laws or liberal constitutional protections. Or so it has been argued. Some legal scholars have denounced this apparent turn to the right, while others see only small changes that incrementally move the jurisprudence in a direction more faithful to constitutional values.2 It is always hazardous to claim a “transformation” in the law, especially in medias res. Ideological or jurisprudential disagreements can be lost in the complexities of the facts. The justices 1 Lee Epstein is the Ethan A.H. Shepley Distinguished University Professor at Washington University in St. Louis; Eric Posner is the Kirkland & Ellis Distinguished Service Professor of Law and the Arthur and Esther Kane Research Chair at the University of Chicago. Epstein thanks the John Simon Guggenheim Foundation, the National Science Foundation, and Washington University for supporting her research on judicial behavior. We thank Aziz Huq for helpful comments, and Sima Biondi, Lina Dayem, Kelly Gregg, Kenny Mok, and Candice Yandem, for research assistance. The project’s website (http://epstein.wustl.edu/research/ReligionInCourt.html) will house a full replication archive, including the data and documentation necessary to reproduce all results. 2 See Erwin Chemerinsky and Howard Gillman, Symposium: The unfolding revolution in the jurisprudence of the religion clauses (SCOTUSblog, Aug 6 2020), archived at https://perma.cc/43BS-KQAS; Richard Garnett, Symposium: Religious freedom and the Roberts court’s doctrinal clean-up (Scotusblog, Aug 7 2020), archived at https://perma.cc/7P5E-HP4Z; Kim Colby, Symposium: Free exercise, RFRA and the need for a constitutional safety net (Scotusblog, Aug 1