Executive Branch Socialization and Deference on the U.S. Supreme Court

Abstract

Are Supreme Court justices with prior experience in the executive branch more likely to defer to the president in separation of powers cases? While previous research has suggested that such background may signal judicial policy preferences but does not shape them, I argue here that institutional socialization may indeed increase future judicial deference to the president. Using an original data set of executive power cases decided between 1942 and 2007, I model justice‐votes to test this hypothesis. I uncover three noteworthy findings: (1) a clear correlation between prior executive branch experience and support for the executive branch, (2) the degree of this support intensifies as executive branch tenure increases, a finding congruent with a socialization hypothesis, and (3) contrary to received wisdom, executive powers cases possess a clear ideological dimension, in line with the expectations of the attitudinal model.

Lacking Legislative Experience: The Impact of Changing Justice Backgrounds on Judicial Review

“…create two continuous measures of legislative service, taking the total years of service (state and federal combined) as the first alternate measure and the square root of those total years as the second. I include the square root measure because there may not be a linear relationship between years of service and socialization, with earlier years instead being more important in establishing social background dynamics (e.g., Robinson 2012). To code the legislative experience variables, I relied on the backgrounds published in the Federal Judicial Center's Biographical Directory of Federal Judges (2022), cross-checked against the U.S. Supreme Court Justices Database (Epstein et al 2022).…”

“…Armed with better theories, better data, and more sophisticated methodological instruments, these studies have demonstrated the importance of an individual's background characteristics in judicial decision-making. For example, we have findings that men decide sex discrimination cases differently when there are women on the appeals panel (Boyd, Epstein, and Martin 2010), that judges with daughters are more likely to take a liberal or feminist position in gender-related cases (Glynn and Sen 2015), that black judges are more likely to support affirmative-action programs than non-black judges (Kastellec 2013), that judges with prior criminal defense experience had different responses to the adoption of federal sentencing guidelines than those without (Sisk, Heise, and Morriss 1998), that judges with prior service in the executive branch were more likely to support the president in separation of powers cases (Robinson 2012), and that judges who had been public defenders differ in their sentencing practices from those who had not (Harris and Sen 2022).…”

Is the US Supreme Court a reliable backstop for an overreaching US president? Maybe, but is an overreaching (partisan) court worse?

“…But the studies are more mixed when it comes to executive power cases. Although some research finds that political compatibility between the president and the justice “matters a great deal” to how the justice will vote in these cases (Robinson, 2012, p. 915), the more conventional view is that political preferences play less of a role in executive power disputes than in culturally controversial issues such as, say, abortion or religion cases (Black & Owens, 2012; Segal & Spaeth, 2002). This view may rest on a sense that, while the political parties differ as to certain preferred rights, they coalesce around the importance of structural protections in the Constitution.…”

“…Using a different measure of important cases,Robinson (2012) also finds that the justices are less likely to hold for the president in "salient cases." Likewise,Howell (2003, p. 162) reports the results of a statistical model showing that "[w]hen the New York Times writes at least one article on a court case prior to the announcement of its final ruling, the chances that the president wins drop from 85 to 61 percent."…”

Adjudicating Executive Privilege: Federal Administrative Agencies and Deliberative Process Privilege Claims in U.S. District Courts

“…Factors that contribute to government success in court include judicial attentiveness to executive preferences, agency litigation experience, and the presence of judges with previous executive branch experience (Galanter , Kapiszewski , Robinson ). These factors would presumably confer advantages to agencies in transparency disputes as well.…”