Jurisprudence

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Essay
Volume 92.7
Legal Realignment
Richard M. Re
Professor, Harvard Law School.

I am grateful to many thoughtful commentators, including workshop participants at Stanford University, the University of Virginia, Wayne State University, Harvard University, and Boston College, as well as attendees at a presentation at Boston University and a panel at the AALS annual conference. This essay borrows some text and ideas from my keynote address at the 2024 National Conference of Constitutional Law Scholars. See generally Richard M. Re, The One Big Question (Feb. 26, 2024) (Nat’l Conf. of Const. L. Scholars Keynote Address) (available on SSRN). Many thanks to the organizers and attendees at that event. Finally, I am indebted to the editors of this journal.

The widely understood alignment between political ideology and legal methodology—conservativism and constraint versus liberalism and discretion—explains judicial behavior with diminishing accuracy. In this Essay, Richard M. Re describes a "legal realignment" comprising moves toward conservative discretion and liberal constraint at the U.S. Supreme Court. The Essay develops a model of ideological change at the Court by describing the tendency for governing coalitions and opposition parties to embrace discretion and constraint, respectively. The Essay continues by detailing the mechanisms through which individuals and generations of legal thinkers undergo ideological shifts before concluding with what the model portends for the U.S. judiciary.

Jurisprudence
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Article
Volume 91.7
Judicial Dark Matter
Nina Varsava
Associate Professor of Law, University of Wisconsin Law School.

For helpful comments, we’re grateful to Christina Boyd, Anuj Desai, Christopher Drahozal, Sean Farhang, Peter Grajzl, William C. Hubbard, Christine Jolls, Jason Rantanen, and Miriam Seifter, as well as participants of the 2022 Conference on Empirical Legal Studies, the 2022 American Law & Economics Association Conference, the 2022 Midwest Law & Economics Association Conference, and 2022 faculty workshops at NYU School of Law and the Wisconsin Law School. We thank Saloni Bhogale, Jay Chen, Leigha Hildur Vilen, Kelsey Mullins, Yukiko Suzuki, Kou Wang, and Sojung Yun for excellent research assistance. Support for this research was provided by the Office of the Vice Chancellor for Research and Graduate Education at the University of Wisconsin-Madison with funding from the Wisconsin Alumni Research Foundation.

Michael A. Livermore
Class of 1957 Research Professor of Law, University of Virginia School of Law.

For helpful comments, we’re grateful to Christina Boyd, Anuj Desai, Christopher Drahozal, Sean Farhang, Peter Grajzl, William C. Hubbard, Christine Jolls, Jason Rantanen, and Miriam Seifter, as well as participants of the 2022 Conference on Empirical Legal Studies, the 2022 American Law & Economics Association Conference, the 2022 Midwest Law & Economics Association Conference, and 2022 faculty workshops at NYU School of Law and the Wisconsin Law School. We thank Saloni Bhogale, Jay Chen, Leigha Hildur Vilen, Kelsey Mullins, Yukiko Suzuki, Kou Wang, and Sojung Yun for excellent research assistance. Support for this research was provided by the Office of the Vice Chancellor for Research and Graduate Education at the University of Wisconsin-Madison with funding from the Wisconsin Alumni Research Foundation.

Keith Carlson
Tuck School of Business, Dartmouth College.

For helpful comments, we’re grateful to Christina Boyd, Anuj Desai, Christopher Drahozal, Sean Farhang, Peter Grajzl, William C. Hubbard, Christine Jolls, Jason Rantanen, and Miriam Seifter, as well as participants of the 2022 Conference on Empirical Legal Studies, the 2022 American Law & Economics Association Conference, the 2022 Midwest Law & Economics Association Conference, and 2022 faculty workshops at NYU School of Law and the Wisconsin Law School. We thank Saloni Bhogale, Jay Chen, Leigha Hildur Vilen, Kelsey Mullins, Yukiko Suzuki, Kou Wang, and Sojung Yun for excellent research assistance. Support for this research was provided by the Office of the Vice Chancellor for Research and Graduate Education at the University of Wisconsin-Madison with funding from the Wisconsin Alumni Research Foundation.

Daniel N. Rockmore
Professor, Department of Computer Science, Dartmouth College; External Professor, Science Steering Committee, Santa Fe Institute.

For helpful comments, we’re grateful to Christina Boyd, Anuj Desai, Christopher Drahozal, Sean Farhang, Peter Grajzl, William C. Hubbard, Christine Jolls, Jason Rantanen, and Miriam Seifter, as well as participants of the 2022 Conference on Empirical Legal Studies, the 2022 American Law & Economics Association Conference, the 2022 Midwest Law & Economics Association Conference, and 2022 faculty workshops at NYU School of Law and the Wisconsin Law School. We thank Saloni Bhogale, Jay Chen, Leigha Hildur Vilen, Kelsey Mullins, Yukiko Suzuki, Kou Wang, and Sojung Yun for excellent research assistance. Support for this research was provided by the Office of the Vice Chancellor for Research and Graduate Education at the University of Wisconsin-Madison with funding from the Wisconsin Alumni Research Foundation.

Judicial reform aimed at rectifying historical inequalities understandably focus on increasing the number of women and people of color on the bench. This Article sheds light on another aspect of the representation problem, which will not necessarily be resolved through greater diversity in judicial appointments: the understudied and opaque practices of judicial administration. Through an empirical study of federal appellate decisions, we find systematic gender and racial imbalances across decision panels. These imbalances are most likely a product of disparities in decision reporting; some decisions, which we call judicial dark matter, go unreported, distorting the representation of judges in reported cases. Our findings suggest that assessing the distribution of legal power across gender and racial groups based on the numbers of judges from these groups may create an inflated sense of the influence of judges from underrepresented groups. We propose reforms to protect against the demographic biases that we uncover.

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