Even if party capability theory has been well documented, parsing out the reasons why “haves” come out ahead has been challenging. Our study takes advantage of the Argentine Supreme Court’s power to dismiss appeals because they contain formal errors to ascertain the existence of representational advantage. We show that representational advantage plays a significant role, as individual appellants represent a larger proportion of appeals rejected on formal grounds than of those analyzed on their merits. In addition, certain areas of law where asymmetrical capability is prevalent and consistent, particularly labor law, are significantly overrepresented in appeals rejected on formal grounds.

The legislative deferral hypothesis posits that elected policy makers, anxious to avoid the political repercussions of taking clear positions on controversial issues, will actively seek to involve the judiciary in resolving these disputes. This study seeks to further test the legislative deferral theory by considering its applicability to the state level. What is revealed from an examination of the development of abortion policy in New York is that, despite the controversial nature of the issue, lawmakers did not seem to attempt to involve the courts in its resolution, and virtually no policy was created by the state’s judicial branch. I propose an alternative explanation for judicial noninvolvement, borrowing from path-dependence theory, that emphasizes the importance of the initial location of policy change and the issue frames that first took hold around this issue.

I examine the relationship between judicial federalism and state-level representation. I develop a framework in which federal courts establish a federal “floor” in a policy area, thus creating an asymmetry—states with lower levels of policy must shift policy to the floor, whereas states with higher levels of policy above the floor are unaffected. I use the framework to recast the “countermajoritarian difficulty” as an issue of federalism. To illustrate the framework, I present a quantitative analysis of the legalization of same-sex marriage in all 50 states, using data on public opinion, federal and state judicial decisions, and state-level policy.

At the intersection of behavioral and institutional studies of policy making lie a series of questions about how elite choices affect mass public opinion. Scholars have considered how judicial decisions—especially US Supreme Court decisions—affect individuals’ support for specific policy positions. These studies yield a series of competing findings. Whereas past research uses opinion surveys to assess how individuals’ opinions are shaped, we believe that modern techniques for analyzing social media provide analytic leverage that traditional approaches do not offer. We present a framework for employing Twitter data to study mass opinion discourse. We find that the Supreme Court’s decisions relating to same-sex marriage in 2013 had significant effects on how the public discussed same-sex marriage and had a polarizing effect on mass opinion. We conclude by connecting these findings and our analyses to larger problems and debates in the area of democratic deliberation and big-data analysis.

Employing a matching design on US state supreme court vacancies and replacements from 1970 to 2016, I demonstrate that patterns of judicial replacement are gendered. Vacancies made by women are filled by women at a greater rate than vacancies made by men, and vacancies made by men are filled by men at a greater rate than vacancies made by women. To examine whether these patterns of replacement have systematically suppressed or advantaged the selection of women judges, I compare judicial selections to the gender composition of lawyers. Women are selected to state supreme courts at rates that parallel the gender diversity of lawyers over time, which suggests that gendered patterns of replacement have neither advantaged nor excluded women from state supreme courts in the aggregate.

Does merit selection work? Existing evidence on institutional performance compares outcomes of interest across selection mechanisms, which does not account for the two-stage process that makes merit selection unique. Using information obtained from public records requests, this article analyzes the determinants of commission and gubernatorial selections from relevant candidate pools. The evidence suggests that although commissions and governors seem to select on certain qualifications, women are disadvantaged at the commission stage and partisanship is relevant at both stages. The results have important implications for our understanding of merit selection’s institutional performance and the broader judicial selection debate.

The previous literature debates whether rising rates of dissent are best explained by changes in court leadership and the composition of justices or by greater judicial discretion and changes in agenda. This article examines the influential hypotheses derived from the literature in the relevant and testable European case of the Supreme Court of Norway. It shows that the rising rate of dissent in the Court in the 1990s was mainly catalyzed by fundamental changes to the Court’s discretionary power and by its newfound agenda to work more actively with the development of the law and the protection of human rights.