Agendas, Decisions, and Autonomy: How Government Lawyers Shape Judicial Behavior

Social scientists have long traced how private attorneys influence judicial behavior. By contrast, we lack a comparative agenda probing how government lawyers impact the courts. This paper identifies three ways that government attorneys influence judicial behavior: by shaping judicial agendas, decisions, and autonomy. I attribute each mode of influence to a type of government lawyer public prosecutors, government litigators, and executive branch attorneys and illustrate the mechanisms driving their influence over judges via examples. First, I spotlight how government lawyers in law enforcement roles can wield a “politics of discretion” to shape judges agendas by withholding or prioritizing lawsuits. Next, I highlight how attorneys representing governments in court can engage in a “politics of positionality,” leveraging their role as intermediaries and repeat players to influence judgments. Finally, I chronicle how attorneys in the executive branch can weaponize their legal training to undermine judicial independence what I call “power politics, lawyer-style.”