Representation in political institutions, including the judiciary, is an important consideration for both political scientists and citizens. What factors systematically influence diversity among judges? In particular, does the method of selection affect the relative success of political minorities in attaining a seat on the bench? The answers to these questions have substantial normative and theoretical implications. We examine judges on all state supreme and intermediate appellate courts in 1985 and 1999 to assess the influence of various structural, political, and demographic factors on judicial diversity. We demonstrate that the ability of political minorities to attain a place in the judiciary is not solely a function of any single factor. Instead, their success is influenced by a multifaceted combination of factors contingent on time and the level of the court, and these influences differ for women and for minorities.

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Scholars have been intrigued by the abrupt change in the rate of nonconsensual opinions that the Supreme Court has published over time, which substantially increased beginning with the battles concerning the court's New Deal transition in the 1930s. Notwithstanding, none of the prior studies on this topic has made any link, whether theoretical or empirical, between the Supreme Court's issuance of these special opinions and the justices' policy preferences. We utilize fractional cointegration to examine the relationship between consensus, agendas, and decisionmaking on the Supreme Court. We find that there is a systematic interrelation between the justices' policy preferences and their issuance of nonconsensual opinions that is dependent upon the policy agenda before the court. In turn, this connection influences the court's policy outcomes, demonstrating that the justices' behavior regarding nonconsensual opinion writing is a classic example of judicial policymaking.

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Studies of decision making on the modern Supreme Court have drawn on readily available empirical data to explore the details of how the Court conducts its business (Segal and Spaeth 1993; Spaeth 1995). Sadly, however, such empirical studies have not been plentiful for periods of the Court’s history before the appointment of Chief Justice Earl Warren. Some discussion has occurred dating from the chief justiceship of William Howard Taft beginning in 1910, but these studies have limited scope (Bowen and Scheb 1993; Leavitt 1970; Pritchett 1948; Renstrom 1972; Slotnick 1979; Tate and Handberg 1991). The result is a plethora of studies concerning the modern Court and a dearth of systematic information on earlier Courts (Aliotta 1988; Brenner and Spaeth 1995; Epstein and Kobylka 1992; George and Epstein 1992; Handberg 1976; Schubert 1965, 1974; Segal 1984; Tate 1981; Ulmer 1970). The picture we do have concerning earlier Courts is largely drawn from biographical or doctrinal studies. While both of these enterprises are immensely useful, they lack the systematic quality of an empirical analysis that considers all cases (not just the important ones) and all justices (not just the intellectual or social leaders). We seek to create an empirical context out of which those outstanding justices and decisions arose. Our study allows confirmation of findings of previous studies of individuals and doctrine and provides a more complete picture of the Court during a tumultuous time in its history.