U.S. courts have long been thought to be held in special regard by the American public, and public support is theorized to protect institutions from interbranch aggression. At the same time, recent research underscores that institutional fealty and public reaction to court curbing is shaped by partisan concerns. Drawing on a survey experiment fielded in the U.S., we evaluate whether (1) the public is uniquely punitive toward incumbents who seek to undermine a court rather than an agency and (2) the extent to which these penalties are dependent upon shared partisanship with the proposer. We demonstrate that the public is less supportive of efforts to strip judicial power than analogous efforts to strip power from an executive agency, but that this penalty for court curbing dissipates in the face of copartisanship. This substantiates previous claims regarding the role of partisanship on shaping public attitudes about high courts but underscores that the American public may still hold the courts in unique regard.
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Accountability for Court Packing
How does the public respond to court-packing attempts? Longstanding accounts of public support for courts suggest voters retaliate against incumbents who seek to manipulate well-respected courts. Yet incumbents might strategically frame their efforts in bureaucratic terms to minimize the public’s outcry or use court-packing proposals to activate a partisan base of support. Drawing on a series of survey experiments, we demonstrate that strategic politicians can minimize electoral backlash by couching court reform proposals in apolitical language, and institutional legitimacy’s shielding effect dissolves in the face of shared partisanship. These results shed new light on how ambitious politicians might avoid electoral consequences for efforts to bend the judiciary to their will.
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- NSF-PAR ID:
- 10429418
- Date Published:
- Journal Name:
- Journal of Law and Courts
- Volume:
- 2023
- ISSN:
- 2164-6570
- Page Range / eLocation ID:
- 1 to 22
- Format(s):
- Medium: X
- Sponsoring Org:
- National Science Foundation
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The process of litigation is part of the decentered complex governance structure of risks and disaster. The process highlights problems that other institutions deflect. Courts are also part of defining problems in governing disaster. Scholarship drawing on legal decisions, including concerning environmental decision making, often relies upon the final decision from a highest court of appeal. Most cases settle, and courts make temporary decisions that other courts subsequently overturn or vacate. This process also names and deflects problems. Therefore, looking only to highest courts of appeals misstates how courts participate in governance. However, the process of litigating in lower courts is complex to follow, with partial decisions and settlements. This paper traces the histories of key housing assistance cases taken after Hurricane Katrina, following their multiple iterations as well as how later cases drew upon them, through 2018. Although initial decisions evinced concern for those who had lost their homes, flexible legal standards and limits on groups' ability to litigate allowed courts to limit government agencies’ accountability in court. This paper argues for integrating courts into the governance of risks and hazards, and for following trial courts and process.
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What happens when international courts are asked to tackle local political controversies and their judgments subsequently spark contentious resistance? In the European Union (EU), scholars have posited that the politicization of the often‐liberalizing rulings of the European Court of Justice (ECJ) provokes Euroscepticism and noncompliance. In contrast, I argue that contentious politics may also produce permissive conditions for activist “Eurolawyers” to promote awareness of EU law and mobilize support for liberalization. To unpack this claim, I conduct an intensive case study of perhaps the most explosive controversy in Italy to generate litigation before the ECJ: The 1991 “Port of Genoa” case, where the public monopoly rights of a centuries‐old dockworkers' union were challenged. Leveraging interviews, court and newspaper records, public opinion data, and litigation statistics, I trace how—despite dockworkers' vigorous resistance—a pair of entrepreneurial lawyers liberalized Italy's largest port by combining strategic litigation with a public relations campaign to mobilize a compliance constituency. I conclude with insights the case study offers into the contemporary politics of transnational governance.
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Since the 1970s, advocates have used the term
gender neutral to press for legal change in contexts ranging from employment discrimination to marriage equality to public restroom access. Drawing on analyses of all Supreme Court cases, federal courts of appeals cases, and Supreme Court amicus briefs in which the termsgender neutral/neutrality ,sex neutral/neutrality , orsexually neutral/sexual neutrality appear, this study examines how US courts have defined gender neutrality and what the scope and limits of its legal application have been. We find that the courts have defined gender neutrality narrowly as facial neutrality, but nonetheless that this limited understanding has transformed some areas of the law, even if it has had little impact on others. Our analysis confirms earlier feminist skepticism about the sufficiency of gender neutrality to guarantee equality but also points to areas in which the law has yet to exploit the idea's significant potential to address discrimination on the basis of sex, sexual orientation, and gender identity.
- Free Publicly Accessible Full Text
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Accepted Manuscript1.0
- Journal Article:
- https://doi.org/10.1017/jlc.2022.14
