Schoenherr, Jessica A. and Nicholas W. Waterbury. 2022. “Confessions at the Supreme Court: Judicial Response to Solicitor General Error.” Journal of Law and Courts 10(1): 13-36.
King, Jonathan M. and Jessica A. Schoenherr. “A Matter of Opinion? The Strategic Selection of Supreme Court Opinion Writers.”
Examples abound of Supreme Court justices who wrote opinions because their ideological preferences or identity characteristics ran counter to the case outcome. At least in salient cases, the justices believe that asking an incongruent justice to explain a controversial opinion can shift focus toward the legal soundness of the opinion and increase support for it. But does knowing that an incongruent justice wrote the opinion increase a person’s willingness to accept the Court’s decision? Using a survey experiment in which 1,480 participants read about a pro-abortion or pro-death penalty ruling written by justices of varying ideologies and genders, we found that the answer is yes. Our results show that in certain situations, an ideologically- or identity-incongruent opinion writer can increase support for the Court’s decisions among those least likely to support it. These findings suggest the justices can use their opinions for cover, even if no one is reading them.
Schoenherr, Jessica A. “Call and Response: Legal Entrepreneurship and Attorney Success at the U.S. Supreme Court.” (Honorable Mention, Best Graduate Student Paper, Law and Courts Section, American Political Science Association)
When attorneys approach Supreme Court justices, they find themselves attempting to answer legal questions that the brightest minds in the lower courts failed to resolve. The Supreme Court’s job is to address as-yet-unanswered questions, but the adversarial legal system requires attorneys do the work of finding the proposed answers and providing them to the justices first. Because attorneys do this in the one-sided written merits brief, however, approaching the justices also provides them with an opportunity to persuade and influence. Attorneys do this using one of two tactics: they can adopt the prevailing argument in a legal area and suggest the justices merely need to apply it in a new manner, or they can try to transform the justices’ understanding of an issue area by engaging in legal entrepreneurship. Using data from 1,509 cases the Supreme Court heard between the 1984 and 2007 terms, I examine how attorneys’ decisions to engage in legal entrepreneurship influences outcomes at the Court.
Lane, Elizabeth A. and Jessica A. Schoenherr. “Hidden Successes: Briefs, Oral Argument, and Gender Roles at the Supreme Court.”
The Supreme Court has a gender problem: the attorneys who work on merits briefs and present material to the justices at oral argument are overwhelmingly male. One possible explanation for this disparity is the long-held belief that the justices are biased against women, which then leads firms to avoid placing women in the more forward-facing litigation positions, namely as the counsel of record on a brief or as the attorney who appears at oral argument. In this paper, we seek to better understand the factors that lead women to positions of power within a Supreme Court litigation team, and then we look to see if those women win the justices’ votes. To do this, we collect data on every attorney whose name is on a brief between the 1984 and 2018 Supreme Court terms.
Lane, Elizabeth A. and Jessica A. Schoenherr. “A Winning Strategy: How Attorneys Use Vanity Citations to Sway Justices.”
Discussions about Supreme Court decision-making almost always devolve into conversations about attorney strategy toward the median justice. Such conversations suggest attorneys are strategic in how they approach the justices, carefully crafting their briefs and oral argument discussions to persuade at least five justices to their side. We seek to better understand how attorneys appearing before the Supreme Court appeal to the justices’ preferences and obtain their votes. Using citation data from a random sample of 75 search and seizure and Establishment Clause cases, we analyze the frequency with which attorneys cite sitting Supreme Court justices’ past decisions and the factors that influence their decision to do so. We then use that information to see if the attorneys’ strategic behavior effectively convinces the justices to side with them.
Scott, Jamil S., Elizabeth A. Lane, and Jessica A. Schoenherr. “You Better Shop Around: How Litigant Characteristics Influence Support for Supreme Court Decisions.”
Many scholars have studied the public response to Supreme Court decisions, however, there are very few studies that examine how the Court’s support or legitimacy changes based on the beneficiaries of the Court’s rulings. Put more simply, we ask: are there litigants that make the mass public more or less accepting of the Supreme Court and its decisions? In this study, we use a survey experimental design to examine how different litigant characteristics affect opinions about Supreme Court decision-making on the controversial issue of gun control.