I conduct a quantitative evaluation of the “countermajoritarian difficulty” by examining the relationship between public opinion, state policy, and judicial review in constitutional challenges to state abortion statutes in the period before Roe v. Wade. I find that state and lower federal court judges tended to invalidate statutes in states with high levels of public support for moving policy away from the status quo, and judges did not strike down statutes in states where majorities firmly supported the status quo. These results suggest the importance of creating a role for state and lower federal courts in evaluating the countermajoritarian difficulty.

This article provides the first empirical analysis of court decisions that review the exercise of executive power, or judicial review, in Singapore, a single-party-dominated state known for its use of law to achieve economic progress and curtail civil-political liberties. Our findings suggest that judicial review could have the effect of buttressing the ruling party’s legitimacy while deferring to the executive’s curtailment of dissent and civil-political liberties, thus reinforcing the political status quo. We also find judicial review to be a scarcely utilized recourse. The article contributes to the study of law and courts, particularly administrative law in nonliberal regimes.

While many studies have examined party capability theory, few have empirically examined the potential causal mechanisms underlying the theory. We do this by combining quantitative analyses with qualitative data drawn from interviews with over 60 US courts of appeals judges. We find that the “haves,” or repeat players, hire better lawyers and that these lawyers independently contribute to the success of the repeat players. We also find that the advantages of the haves extend to all parties, though to a lesser extent than the advantages enjoyed by the US government. These results remain robust after controlling for ideology.

Existing theory suggests that under neo-corporatist governance, civil society groups are less likely to take the state to court. However, a comparative analysis of the use of legal strategies across a number of environmental nongovernmental organizations (ENGOs) in France presents a counterintuitive finding. Drawing on new data on more than 200 cases taken by these ENGOs, the analysis finds that the groups that are most incorporated in policy making are also the most active litigants against the Environment Ministry in the Conseil d’Etat. This article tests a number of theoretical explanations to account for this result. It finds that the neo-corporatization of the rules determining access to justice as well as the presence of certain agent-level characteristics helps to explain when and why groups mobilize the law.

When do judges initiate public action outside the courtroom? What kinds of political activities do they engage in? What are the consequences of their interactions with social and political actors? This article investigates judges’ efforts to influence law and policy as opinion leaders, protesters, and network builders. In light of recent devevelopments in Turkey, I argue that intrajudicial conflict, that is, the increasing salience of hitherto dormant tensions inside the judiciary, is the primary source of off-bench judicial mobilization. Participants in off-bench judicial mobilization seek to maintain, reform, or transform judicial institutions in ways that enhance their ideational and strategic goals.

Unable to directly control the policy articulated by the Supreme Court, dissenting justices are faced with the challenge of finding alternative ways to pursue their policy goals. We argue that one strategy available to them is to use their power over the language of a dissenting opinion to increase the media attention paid to a case. Our results show that cases with negative dissents attract more media coverage, which creates a variety of mechanisms through which a dissenter’s policy preferences could be realized, such as inducing Congress to take action, influencing public debate on the issue, and provoking further litigation. This finding ultimately suggests that dissenters, while disadvantaged, are not powerless to affect legal policy.

Building on the empirical portrait of federal judicial selection processes and outcomes in the 113th Congress published in part 1, we now turn to in-depth analyses, drawing on extensive interview data, of the confirmation battle over confirmations to the DC Circuit Court of Appeals, filibuster reform (the nuclear option) and its consequences, the role of the blue slip system in contemporary judicial selection, case studies of selection successes and failures, and the historic impact of the Obama appointments record on patterns of diversity and partisanship on the federal bench.