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September Book of the Month: The Oxford Handbook of U.S. Judicial Behavior

Oxford Handbook of U.S. Judicial BehaviorThe Oxford Handbook of U.S. Judicial Behavior
Edited by Lee Epstein and Stefanie S. Lindquist

Reviewed by Ruth Geos, Reference Librarian


Attorneys use their skills and experience to focus on advocacy of their claims or defenses: briefing the law and the facts of the case to the court in the most advantageous way, arguing the merits and demonstrating how both precedent and public policy goals support their position. The Oxford Handbook of U.S. Judicial Behavior offers another perspective, using social science empirical analysis to look at the dynamics of judicial decision-making beyond the law of the case. In asking other kinds of questions, these studies see the process of judicial decision-making as taking place with a larger institutional, social, and constitutional construct, subject to internal and external influences. Over a wide range of inquiries, the authors assess studies that measure the personal, psychological, financial, institutional, historical, and political influences that impact judicial behavior and ultimately, judicial decision-making.

By poking behind the curtain of the law in this way, a very different look at the courts is presented: how the courts function both as gatekeepers and reciprocal partners in public policy, with hints for the rest of us to glean along the way as to what might strengthen a case, settlement, an oral argument, or a petition for certiorari.

Some of the statistical rigor presented can be dense, but there is much to appreciate in the methodology, especially in the narratives that are caught in the same sociological net. One fascinating example of a study protocol is the use of plagiarism detection software to evaluate how much content of a lower court opinion or content from amicus briefs are included in Supreme Court opinions as a means of tracking influence from these sources. Meta-analysis from another study shows that ideology is a better predictor of votes at the Supreme Court level than at either the District Court or Circuit Court level. Descriptions about the workings of the courts, and particularly the U.S. Supreme Court, offer compelling inside-views, such as the expanded role of Supreme Court law clerks (who have their own law clerk dining room), describing the “cert pool,” established in the 1970s, by which petitions for certiorari are reviewed initially not by the Justices themselves but by a shared pool of law clerks for six of the eight justices (Justices Alito and Gorsuch currently opting out of the pool). Another chapter considers the influences that may have come to bear on Chief Justice Roberts when he shifted his initial position with the conservatives on the court, to join in the vote to uphold the Affordable Care Act. And a made-for-movie story is that of Chief Justice Burger wanting his childhood friend, Harry Blackmun, on the court, which didn’t turn out well for them, but opened a study into the significance of common social backgrounds.

The Oxford Handbook of U.S. Judicial Behavior is perhaps not the kind of book to read cover-to-cover, but it has treasures to ponder, along with an introduction to a new way of thinking about our court system—and the litigation we lay at its door.

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The Serial Set, Part 3: Supreme Court Nominations

Serial Set SCtOur first two Serial Set Posts discussed HeinOnline’s new database content of the U.S. Congressional Serial Set, and the differences in the online offerings of Hein and Lexis. Now, for the last installment of our series, we dive into the documents themselves, since none of this would be worth the bother at all if the Serial Set didn’t offer the most vivid view of the history of the nation.

With the sting of Supreme Court nominations so recently in mind, the Year-End Report, 1st session of 97th Congress (1981) [Report of Senate Comm on the Judiciary, Nomination of Sandra Day O’Connor. Executive Report No. 97-22.], regarding the nomination of Sandra Day O’Connor, reminds us that consensus was once easier to achieve. Speaking about the recommendation to the full Senate (17 aye, one present), Senator Thurmond, then Chair of the Senate Committee on the Judiciary, summarized those hearings [at p. 147]:

…The Committee recommended the approval of the first woman to be nominated to the United States Supreme Court. In providing the background and recommendation on which the Senate could fulfill its Constitutional duties, the Committee held three days of hearings and considered the views of a wide range of witnesses. On the recommendation of the Committee, the Senate unanimously confirmed the nomination of Sandra Day O’Connor to be an Associate Justice of the Supreme Court

Twelve years later, in 1993, the nomination of Ruth Bader Ginsburg was sent to the Senate Floor with a unanimous recommendation to confirm, with a final Senate vote of  93-3. [Nomination of Ruth Bader Ginsburg to Supreme Court, Report from Senate Comm on the Judiciary, Aug 5, 1993]

Serial set 3

And in-between, in 1991, was the highly charged hearing on the nomination of Clarence Thomas as an Associate Justice of the Supreme Court, with testimony given by Anita Hill of a pattern of sexual harassment by the nominee. With contemporary articles pointing out the all-but-too-close parallels to the conduct of the Clarence Thomas and Brett Kavanaugh hearings, the Serial Set refreshes history, and our memory, with the report of the Senate Judiciary Committee, which ultimately made no recommendation on the nominee, and with the Committee vote tied at 7 to 7. [Nomination of Clarence Thomas, Report of Comm of Judiciary, no recommendation 7-7. Sept 19, 1991]

Serial set 3a

Among the many speeches by Senators who rose to explain their vote, Senator Robert Byrd took to the floor with a singular and powerful eloquence, explaining why, in the end, he could not vote to confirm Clarence Thomas — ultimately rejecting the nomination in favor of the grace of the Court itself. [Senator Robert C. Byrd on the nomination of Clarence Thomas]

Even after the final vote, 52-48, the narrative continued, with a potent shift to the another part of the story.  A Temporary Independent Counsel was immediately appointed to investigate the leak of the confidential Anita Hill information, the disclosure of which triggered the public airing of the sexual harassment she detailed, and the hyper-charged televised hearings that followed.

Serial set 3b

The subsequent Report of the Temporary Independent Counsel summarized all the key players, and yet in the end concluded that it was unable to identify the source of the disclosures. [Independent Counsel after Clarence Thomas hearings, part 1]

This report of the Temporary Independent Counsel was accompanied by a 172-page collection of exhibits. Among other materials, it included the Anita Hill statement, photographs of Anita Hill arriving at the Senate hearings, deposition testimony from the NPR legal affairs correspondent, Nina Totenberg, editorial cartoons, and press reports and newspaper articles on colleagues of Anita Hill supporting her veracity. [Exhibits to Report by Temporary Independent Counsel.May 1992]

The Serial Set has all this and more.

As the 116th Congress, convened on January 3, 2019, begins its work, all the records of whatever comes across Congressional sightlines will be also eventually be added and indexed and become a part of the U.S. Congressional Serial Set.


Databases at the San Francisco Law Library, including HeinOnline and the Lexis are open to the public for free access at the San Francisco Law Library.

For more questions about research in the U.S. Congressional Serial Set or about the scope of other San Francisco Law Library resources, please contact the Reference Team at sfll.reference@sfgov.org   or 415:554-1772.


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March Book of the Month: Table for 9

Table for 9Table for 9: Supreme Court Food Traditions & Recipes
by Clare Cushman
Foreward by Ruth Bader Ginsburg

Reviewed by Ruth Geos, Reference Librarian

Although today the Supreme Court is thought of as a highly divisive collection of Justices, the truth, as deliciously revealed in Table for 9, is that it has actually been the food shared by the members of the Court over the years that holds it together as a community of legal thinkers.

Starting with the Supreme Court’s inaugural session in 1790, then in New York, with 13 toasts at the Fraunces Tavern, the members of the Court (who originally lived and supped together in a local boardinghouse) have always lunched together, and savored shared moments of food and drink. Indeed, Chief Justice John Marshall bottled his own favorite brand of Madeira, with a Supreme Court label.

Table for 9 is in fact a biography of the Court through food: a palatable history of these American times, and reveals so much more about the Court and its working process than the erudite opinions, splits in philosophical bent, and the major social issues the Court faces as part of its work. It is intriguing to see that currently, lunch recess on days of oral argument is one hour, in the Justices’ Dining Room, where legal discussions are strictly off-limits—and the Justices pay for their own meals. Over all the years, the tradition of sharing meals, dinners, seders, welcome and farewell celebrations, has become an integral part of the Court, building a special kind of collegiality that food does best.

The late husband of Ruth Bader Ginsburg was renowned for his culinary skills and devotion to feeding the Court, but so was Justice Sandra Day O’Connor, with her Southwestern legerdemain. Chief Justice Warren Burger invented Oysters Le Burger, and Justice William O. Douglas was renowned for his martini skills. Justice Thurgood Marshall was trained to cook by his grandmother in case the law didn’t work out, and Justice Harlan Fiske Stone was considered the one great gourmand of the Court, with a deep appreciation and knowledge of cheese and wine. Justice Ruth Bader Ginsburg, who contributed the foreword, makes evident that unlike her esteemed colleagues, she herself is better out of the kitchen:

I was phased out of the kitchen at an early age by my food-loving children, who appreciated that Daddy’s cooking was ever so much better than Mommy’s. So I will not try out the recipes in this book myself. But I will enjoy turning the pages, pausing at certain photographs, and inviting a child, or now grandchild, to make something delicious for me. Bon appetit!

Laced through with recipes, history, photos, and sidelines on the individual Justices’ favorites (Justice Brandeis loved ice cream, we learn), Table for 9 achieves the best of biography, history, cookbook, and the delights of putting all those ingredients together in the freshest possible way. Also included is a useful Appendix of Justices, 1789 to present, including the dates of appointment and service, and the name of the President appointing him or her to the Supreme Court, along with an index which allows you to jump to Pickled Pigs Feet (p. 59) or Cherry Bounce (p. 38).