# Research

Working Papers
Kastellec, Jonathan P., and Alexander V. Hirsch. Working Papers. “A Theory of Policy Sabotage”.
Kastellec, Jonathan P., Jeffrey R. Lax, and Justin Phillips. Working Papers. “Estimating State Public Opinion with Multi-level Regression and Poststratification using R”.Abstract

This paper provides a primer for estimating public opinion at the state level using the technique of Multilevel Regression and Postratification (MRP). We provide sample R code for creating estimates and give step-by-step instructions on setting up the data, running models, and collecting estimates.

Kastellec, Jonathan P. Working Papers. “Race, Context and Judging on the Courts of Appeals: Race-based Panel Effects in Death Penalty Cases”.
Forthcoming
Kastellec, Jonathan P., et al. Forthcoming. “From Textbook Pluralism to Modern Hyper-Pluralism: Interest Groups and Supreme Court Nominations, 1930-2017”. Journal of Law & Courts. Replication dataAbstract
The last century witnessed a staggering rise in the number of interest groups active in American politics. While this fact is well known, we lack a comprehensive study of the number of groups, the identity of groups, the timing of their births, their mobilization decisions, and their tactical choices, beginning before the transformation and continuing to the present day. In this paper, we use Supreme Court nominations to conduct precisely such an analysis. Analyzing new data on the 52 nominations from 1930 to 2017, we document a sea change in interest group politics. Prior to the 1970s, nomination politics were characterized by a small number of active groups, infrequent opportunistic mobilization, and somewhat restrained inside-oriented tactics. The 1970s saw a surge in both liberal and conservative groups, while the 1980s saw a continuing surge, largely on the conservative side. Moreover, the types of groups shifted from labor unions, core civil rights groups, and "old right" groups, to public interest, ideological, and identity politics groups. By the late 1980s, nomination politics was characterized by a large number of groups, routine ideologically driven mobilization, and extremely vigorous outside-oriented tactics. In sum, the data show a transformation from relatively genteel pluralism to street-fighting hyper-pluralism.
2019
Kastellec, Jonathan P., Charles M. Cameron, and Lauren Mattioli. 2019. “Presidential Selection of Supreme Court Nominees: The Characteristics Approach”. Quarterly Journal of Political Science. Replication dataAbstract

Despite the importance of every nomination to the Supreme Court, a unified theory that illuminates presidential selection of nominees across the modern political era remains elusive. We propose a new theory—the “characteristics approach”—that envisions nominees as bundles of characteristics, such as ideology, policy reliability, and attributes of diversity. We formalize the theory, which emphasizes the political returns to presidents from a nominee’s characteristics and the “costs” of finding and confirming such individuals, and derive explicit presidential demand functions for these charac- teristics. Using newly collected data on both nominees and short list candidates, we estimate these demand functions. They reveal some striking and under-appreciated regularities in appointment politics. In particular, the substantial increase in presidential interest in the Supreme Court’s policy output and the increased availability of potential justices with desired characteristics has led to significant changes in appointment politics and the composition of the Court.

2018
Kastellec, Jonathan P. 2018. “How Courts Structure State-Level Representation”. State Politics & Policy Quarterly 18 (1) : 27–60. Replication dataAbstract
I examine how federal and state courts influence the relationship between state-level public opinion and policy. The system of dual federalism, combined with the sweeping power of judicial review, allows state and federal courts to establish the types of policies that states are constitutionally allowed to implement. In particular, federal courts can set "federal floors" for policy, below which no state can go. State courts, in turn, can raise the level of this floor. As a result, both federal and state courts can shape the extent to which state policy can match the preferences of the median voter in a given state. I demonstrate this important role of courts by analyzing data on public opinion, judicial decisions, and state-level policy on the issue of abortion, from 1973 to 2012. I show that changes in the set of allowable abortion restrictions, according to the combined decisions of federal and state courts, significantly affect whether states implement majority-preferred policies. These results demonstrate the importance of placing courts in the larger study of state-level representation.
Kastellec, Jonathan P. 2018. “Judicial Federalism and Representation”. Journal of Law and Courts 6 (1) : 51–92. Replication dataAbstract
This paper evaluates how the power of federal courts in a system of dual federalism affects state-level representation. I develop a framework in which federal courts establish a "federal floor" in a given policy area, thus creating an asymmetry---states in which the legislature has chosen a lower level are compelled to shift policy to the floor, whereas states in which legislatures or voters prefer levels above the floor are unaffected. I develop versions of the framework in which the status quo at the state level may lag behind changes in public opinion, and in which cross-state moral externalities exist. In doing so, I use the framework to recast the familiar "counter-majoritarian difficulty'"--the problem of unelected judges striking down legislation enacted by elected legislatures--as an issue of federalism. To illustrate the framework, I present a quantitative analysis of the path to the legalization of same-sex marriage in all 50 states, using both original and existing data on public opinion, federal and state judicial decisions, and state-level policy.
2017
Kastellec, Jonathan P. 2017. “The Judicial Hierarchy: A Review Essay”. Oxford Research Encyclopedia of Politics.Abstract
Crucial to understanding the behavior of judges and the outputs of courts is the institutional context in which they operate. One key component of courts' institutional structure is that the judiciary system is organized as a hierarchy, which creates both problems and opportunities for judges. In this essay I evaluate the literature on several features of the judicial hierarchy. I focus on core issues addressed by political scientists, legal scholars, and economists, including such questions as why hierarchy exists; how higher courts can best oversee lower courts; how learning takes place both within and across the levels of the judiciary; and how collegiality influences judicial decision making. I conclude with thoughts on potential future theoretical and empirical avenues for furthering our understanding of the importance of the judicial hierarchy.
2016
Kastellec, Jonathan P, and Charles M Cameron. 2016. “Are Supreme Court Nominations a Move-the-Median Game?”. American Political Science Review 110 (4) : 778–797. Replication data
Kastellec, Jonathan P. 2016. “Empirically Evaluating the Countermajoritarian Difficulty: Public Opinion, State Policy, and Judicial Review before Roe v. Wade”. Journal of Law and Courts 4 (1) : 1–42. Replication dataAbstract
I examine the relationship between public opinion, state policy, and judicial review to conduct a quantitative evaluation of the "counter-majoritarian difficulty," by examining the role of courts in adjudicating constitutional challenges to state abortion statutes in the period before Roe v. Wade. Using new measures of judicial review and state-level opinion on abortion reform, I find considerable heterogeneity in the relationship between opinion and policy--in many states where sizable majorities favored reform, the status quo remained in place. I then find that judicial decisions striking down state statutes tended to occur in states where support for reforming policy was high, and courts did not strike down statutes in states where majorities firmly supported the status quo. These results contribute to a growing body of evidence that suggests that the traditional view of judicial review as being fundamentally counter-majoritarian does not adequately capture the political realities in which courts operate.
Kastellec, Jonathan P, Deborah Beim, and Alexander V. Hirsch. 2016. “Signaling and Counter-Signaling in the Judicial Hierarchy: An Empirical Analysis of En Banc Review”. American Journal of Political Science 60 (2) : 490–508. Replication dataAbstract
We leverage the institutional features of American courts to evaluate the importance of whistleblowers in hierarchical oversight. Drawing on a formal theory of signaling in the judicial hierarchy, we examine the role of whistleblowing dissents in triggering en banc review of three-judge panels by full circuits of the Courts of Appeals. The theory generates predictions about how dissent interacts with judicial preferences to influence circuits' review and reversal decisions, which we test using original and existing data. First, we show that judges who dissent counter to their preferences are more likely to see their dissents lead to review and reversal. Second, we show that dissents are most influential when the likelihood of non-compliance by a three-judge panel is highest. Our results underscore the importance of dissent in the judicial hierarchy and illustrate how judicial whistleblowers can help appellate courts target the most important cases for review.
2015
Kastellec, Jonathan P, et al. 2015. “Polarizing the Electoral Connection: Partisan Representation in Supreme Court Confirmation Politics”. Journal of Politics 77 (3) : 787–804. Replication dataAbstract

Do senators respond to the preferences of their state's median voter or only to the preferences of their co-partisans? We develop a method for estimating state-level public opinion broken down by partisanship so that we can distinguish between general and partisan responsiveness. We use these estimates to study responsiveness in the context of Senate confirmation votes on Supreme Court nominees. We find that senators more heavily weight their partisan base when casting such roll call votes. Indeed, when their state median voter and party median voter disagree, senators strongly favor the latter. This has significant implications for the study of legislative responsiveness and the role of public opinion in shaping the members of the nation's highest court. The methodological approach we develop allows more nuanced analyses of public opinion and its effects, as well as more finely grained studies of legislative behavior and policy-making.

Kastellec, Jonathan P, Sean Farhang, and Gregory Wawro. 2015. “The Politics of Opinion Assignment and Authorship on the US Court of Appeals: Evidence from Sexual Harassment Cases”. The Journal of Legal Studies 44 (S1) : S59–S85. Replication dataAbstract
We evaluate opinion assignment and opinion authorship on the U.S. Courts of Appeals. We derive theoretical explanations and predictions for opinion assignment that are motivated by the Courts of Appeals' distinct institutional setting. Using an original dataset of sexual harassment cases, we test our predictions and find that female and more liberal judges are substantially more likely to write opinions in sexual harassment cases. We further find that this pattern appears to result not from policy-driven behavior by female and liberals assigners, but from an institutional environment in which judges seek out opinions they wish to write. Judicial opinions are the vehicles of judicial policy, and thus these results have important implications for the relationship between legal rules and opinion assignment and for the study of diversity and representation on multimember courts.
Kastellec, Jonathan P, and Tom S. Clark. 2015. “Source Cues and Public Support for the Supreme Court”. American Politics Research 43 (3) : 504–535. Replication dataAbstract
It is well known that the public often relies on cues or heuristics when forming opinions. At the same time, leading theories of opinion formation about the Supreme Court see such support as relatively fixed. This includes the extent to which the public views the Court as a legitimate institution, and thus one that should be granted high levels of judicial independence. Such theories would suggest that the public should not rely on source cues to inform their opinion about the level of independence the Court should hold. Using a series of survey experiments, we find that, conversely, partisan source cues significantly influence the public's support for judicial independence. These results have important implications for understanding the extent to which politicians can shape the public's overall support for judicial independence, as well as for assessing the degree to which the public views the Court as a "political" institution.
2014
Kastellec, Jonathan P, and Deborah Beim. 2014. “The Interplay of Ideological Diversity, Dissents, and Discretionary Review in the Judicial Hierarchy: Evidence from Death Penalty Cases”. The Journal of Politics 76 (4) : 1074–1088. Replication dataAbstract
We use an original dataset of death penalty decisions on the Courts of Appeals to evaluate how the institutions of multimember appellate courts, dissent, and discretionary higher court review interact to increase legal consistency in the federal judicial hierarchy. First, beginning with three-judge panels, we show the existence of ideological diversity on a panel--and the potential for dissent---plays a significant role in judicial decision making. Second, because of the relationship between panel composition and panel outcomes, considering only the incidence of dissents dramatically underestimates the influence of the institution of dissent--judges dissent much less frequently than they would in the absence of this relationship. Third, this rarity of dissent means they are informative: when judges do dissent, they influence en banc review in a manner consistent with the preferences of full circuits. Taken together, these results have important implications for assessing legal consistency in a vast and diverse judicial hierarchy.
Kastellec, Jonathan P, Deborah Beim, and Alexander V. Hirsch. 2014. “Whistleblowing and Compliance in the Judicial Hierarchy”. American Journal of Political Science 58 (4) : 904–918.Abstract
One way that principals can overcome the problem of informational asymmetries in hierarchical organizations is to enable whistleblowing. We evaluate how whistleblowing influences compliance in the judicial hierarchy. We present a formal model in which a potential whistleblower may, at some cost, signal non-compliance by a lower court to a higher court. A key insight of the model is that whistleblowing is most informative when it is rare. While the presence of a whistleblower can increase compliance by lower courts, beyond a certain point blowing the whistle is counterproductive and actually reduces compliance. Moreover, a whistleblower who is a "perfect ally" of the higher court (in terms of preferences) blows the whistle too often. Our model shows an important connection between the frequency of whistleblowing and the effectiveness of whistleblowing as a threat to induce compliance in hierarchical organizations.
2013
Kastellec, Jonathan P. 2013. “Racial Diversity and Judicial Influence on Appellate Courts”. American Journal of Political Science 57 (1) : 167–183. Replication dataAbstract
This paper evaluates the substantive consequences of judicial diversity on the U.S. Courts of Appeals. Due to the small percentage of racial minorities on the federal bench, the key question in evaluating these consequences is not whether minority judges vote differently from non-minority judges, but whether their presence on appellate courts influences their colleagues and affects case outcomes. Using matching methods, I show that black judges are significantly more likely than non-black judges to support affirmative action programs. This individual-level difference translates into a substantial causal effect of adding a black judge to an otherwise all-non-black panel. Randomly assigning a black counter-judge--a black judge sitting with two non-black judges--to a three-judge panel of the Courts of Appeals nearly ensures that the panel will vote in favor of an affirmative action program. These results have important implications for assessing the relationship between diversity and representation on federal courts.
Kastellec, Jonathan, and Tom Clark. 2013. “The Supreme Court and Percolation in the Lower Courts: An Optimal Stopping Model”. Journal of Politics 75 (1) : 150–68. Replication dataAbstract
We examine how the Supreme Court learns from lower court decisions to evaluate new legal issues. We present a theory of optimal stopping in which the Court learns from successive rulings on new issues by lower courts, but incurs a cost when lower courts come into conflict with one another. The Court faces a strategic trade-off between allowing conflict to continue while it learns about a new legal issue and intervening to end a costly conflict between the lower courts. We evaluate how factors such as the quality of lower courts, the distribution of judicial preferences, and the timing of the emergence of conflict affect how the Court weighs this trade-off. We provide empirical evidence that supports one of the theory's novel predictions: the Supreme Court should be more likely to end a conflict immediately when it emerges after several lower courts have already weighed in on a new legal issue, compared to when a conflict emerges early in the life of a legal issue.
Kastellec, Jonathan, Charles Cameron, and Jee-Kwang Park. 2013. “Voting for Justices: Change and Continuity in Confirmation Voting 1937-2010”. Journal of Politics 72 (2) : 283–99. Replication dataAbstract
The contentiousness of Senate voting on Supreme Court nominations increased dramatically from 1937-2010. We identify four potential sources of the increase: 1) changes in the Senate; 2) changes in the nominees; 3) changes in the political environment; and, 4) changes in senators' evaluative criteria. Using new data and improved statistical techniques, we estimate a well-performing model of senators' individual voting choices on Supreme Court nominees. Simulations allow an evaluation of the contribution of the four classes of factors to increased contentiousness. The principal source of increased contentiousness was the combination of increasingly extreme nominees and an increasingly polarized Senate. Also significant was the increased mobilization of interest groups. In sum, increased contentiousness seems largely to reflect the ideological polarization of American political elites.
2011
Kastellec, Jonathan P. 2011. “Hierarchical and Collegial Politics on the U.S. Courts of Appeals”. The Journal of Politics 73 (2) : 345–361. Replication dataAbstract
Do hierarchical politics in the federal judiciary shape collegial politics on the U.S. Courts of Appeals and thus influence judicial voting and case outcomes? I develop a model in which the political control of the dual layer of hierarchy above three-judge panels---full circuits and the Supreme Court---affects the ability of a single Democratic or Republican judge on a three-judge panel to influence two colleagues from the opposing party. The theory predicts that panel majorities should be more strongly influenced by a single judge of the opposing party--a counter-judge"--when that judge is aligned with the Supreme Court. Examining thousands of judicial votes in multiple issue areas, I show that the effect of adding a counter-judge to a panel is indeed asymmetric, and varies based on hierarchical alignment. The interaction of hierarchical and collegial politics increases the Supreme Court's control of the judicial hierarchy and helps promotes the rule of law.