Lighting the Way

Federal Courts, Civil Rights, and Public Policy

Douglas Rice

• Publisher: University of Virginia Press
• Year: 2020
• ISBN:
  9780813943954
• Topic: Politica e relazioni internazionali
• Subtopic: Storia e teoria politica

Do our federal courts, including the Supreme Court, lead or merely implement public policy? This is a critical question in the study and practice of law, with a long history of continued dispute and contradictory evidence. In Lighting the Way, Douglas Rice systematically examines both sides of this debate.

Introducing compelling new data on the policy focuses of federal courts, Rice presents the first long-term, comprehensive consideration of the judicial agenda. In doing so, he details the essential role of the Supreme Court and other federal courts in directing attention to issues in American politics through influential relationships with Congress, the presidency, and the public. The dynamics Rice illustrates grow from the strengths of political constituencies in various policy areas and the constitutional powers accorded to the courts. Lighting the Way provides strong evidence that, as long argued but never empirically demonstrated, the courts systematically lead the attention of other institutions on civil rights. The research speaks to a broad and growing literature in political science and sociolegal research on the interactive nature of policymaking and the critical role of legal institutions and social movements in shaping policy agendas.

1 | Perspectives on Issue Attention Dynamics

Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nittygritty.

—Antonin Scalia, dissenting in Sykes v. United States (2011)

This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose. . . . Once again, the ball is in Congress’ court. As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII.

—Ruth Bader Ginsburg, dissenting in Ledbetter v. Goodyear Tire (2007)

In the separate dissenting opinions that stand as the epigraphs to this chapter, we see two different perspectives on the movement of policy between two institutions of the U.S. government, Congress and the Supreme Court. In Sykes v. United States, the Court addressed the question of what constitutes a violent felony under the Armed Career Criminal Act (ACCA), legislation, passed in 1984, which has subsequently been at issue in a number of Supreme Court cases, including cases seeking to define “violent felony” (Chambers v. United States)1 and “burglary” (Taylor v. United States).2 In his dissent in Sykes, Justice Antonin Scalia lamented the Court’s continued involvement in parsing what he perceived as purposeful vagaries in congressional language. This vague (or “fuzzy”) language, in his view, was an effort to leave to the courts the difficulty of implementing policy. In Ledbetter. v Goodyear Tire and Rubber Company, the majority of the Court held that Title VII of the Civil Rights Act of 1964 does not entitle protections against discrimination if a suit is not initiated within 180 days of the employer’s action. Dissenting, Justice Ruth Bader Ginsburg openly invited Congress to address the issue and modify the (in her view, incorrect) holding of the majority (see, e.g., Rice 2019). The Lilly Ledbetter Fair Pay Act was introduced soon after and, in 2009, became the first piece of legislation then president Barack Obama would sign into law.

My broad goal is to determine whether the interaction of the courts with the other institutions of American government is generally marked by the sort of implementation Scalia laments or by the kind of invitation Ginsburg proffers. More specifically, I attempt to determine what role the federal courts generally play in the policy process. Do they direct the attention of other institutions to unaddressed issues? Or does issue attention in the judiciary simply follow the attention of the other branches, as the courts implement the policies constructed by Congress and the president? For litigants, interest groups, and judges in court rooms across the country, is the federal courts’ activity part of the realization of policy and the final step in the process, or does their attention to a policy systematically have an impact on the attention that policy gets from other national institutions?

In this chapter, I detail two arcs—the passive courts perspective and the proactive courts perspective—in the research of political scientists and legal scholars on the interactions between courts and other institutions. These two arcs reflect contrasting views of how issue attention in the courts relates to issue attention elsewhere in government. I introduce each perspective in order and outline the theory and research underlying that perspective.

I then develop the two policy-specific conditions—political constituency and constitutional power—that serve to predict when the courts can play the role suggested by the proactive courts perspective. In the first place, for the courts to serve as a branch that might ignite attention requires the presence of a support structure capable of using and leveraging the actions of courts elsewhere—in other words, a group that might serve to nurture and spread the flames when they first appear. But while this ensures a mechanism by which attention might spread from courts, the constitutional power condition—the courts’ holding a unique power granted to them constitutionally—makes the court the best place to start the fire. Both conditions are deeply rooted in sociolegal research and political science but have never been made explicit in understanding the role of courts in the policy process.

Passive Courts View

The idea that issue attention in the courts lags issue attention elsewhere traces back to classical notions of jurisprudence in the United States. These early views reflected the Blackstonian ideal of judges whose “function [is] only to declare the law” (Murphy et al. 2006, 10) after they have, without bias, discovered the legal principles of the case. In Federalist 78, the view is evident when Hamilton declares that judges “ha[ve] neither force nor will, but merely judgment.” In this view, judges are simply declaring what the law is, so their attention is necessarily subsequent to the actions of other institutions. One cannot declare what a law is without the law existing. Just by virtue of the legal process, courts may not simply introduce and revise a law; they may instead only interpret the law as it applies to those cases and issues brought before them.

This very notion is built into the classic, and earliest, models of the policy process (Barclay and Birkland 1998). In this view, courts are primarily reactive, and largely powerless in policymaking. The “textbook” model’s four stages—setting the agenda, defining the alternative policy choices available, choosing among those alternatives, and implementing the chosen alternative—represent courts as involved only in the implementation stage. Kingdon’s (2003) seminal work on the policy process is concerned primarily with the first two stages. Further reflecting the textbook view wherein courts are involved only in implementation, his work contains absolutely no reference to the judiciary. Simply put, within this vein of research, court attention to issues will always follow that of other actors. From this perspective, the courts are wholly passive institutions.

This judicial role may be contrasted with the textbook model’s characterization of the part Congress plays in the policymaking process. The textbook model predicts that the pressure of legislation, marked by increases in congressional attention, will lead to additional court cases, which in turn will work out the details of the law’s implementation. Judges may even be forced to deal with issue areas Congress intentionally leaves vague, harking back to Scalia’s lamentation in Sykes. This leaves judges with the task of defining through their opinions the unattended-to details of policy constructed by Congress. Moreover, congressional legislation may also reduce procedural hurdles for litigation, such as happened for private antitrust and securities cases in the mid-twentieth century (Casper and Posner 1974), further encouraging litigation following congressional attention. In each of these cases, the issues with which the judiciary deals and the extent of that involvement are almost entirely determined by Congress.

Similarly, the textbook model posits an even more direct role for the president in determining issue attention in the judiciary. Presidential electoral campaigns, and the actions of presidents once in office, shape legislative agendas and political networks (Whittington 2009). Presidents have a central role in pursuing, enacting, and implementing congressional legislation. Finally, their office may directly influence litigation patterns through the Department of Justice’s role in pursuing court cases. Once again, issue attention in the judiciary is largely driven by the priority accorded to issues by the other branches.

Yet by the early twentieth century, many legal scholars had already rejected the notion of a judge simply declaring the law. The prospect that judges were motivated by political preferences crept into social science research (Pritchett 1948), and the fact that the Supreme Court was an important national policymaker was generally accepted by the mid-twentieth century (Dahl 1957). While legal scholars and social scientists increasingly treated judges as more political, proponents of a passive courts view did not embrace the characterization of the courts as being on equal ground with other institutions. Rather, these scholars postulated that the courts were constrained in ways impinging on and limiting their policymaking effectiveness (see, e.g., Rosenberg 1991).3 These limits fall into two broad categories: legal process constraints and political constraints.

The first category, constraints imposed by the legal process, relates to characteristics of the legal process inhibiting courts from addressing issues in a way that encourages additional attention elsewhere. To begin, in order to use the courts, litigants must have a live controversy and the standing to see it resolved. In a judicial venue, they must assert that they have been “denied some benefit” or have been subject to some “arbitrary and discriminatory action” for which they are entitled to the intervention of the legal system (Rosenberg 1991, 11). This task is particularly difficult in a common law system like the United States, with its emphasis on stare decisis and deciding similar cases in similar ways. Litigants wishing to gain attention for an issue are thus limited, as they cannot plausibly present all their policy goals as legal claims (Rosenberg 1991). This stands in stark contrast to other policymaking venues, which are able to address any policy concern so long as the institution remains within the constitutional boundaries of that institution. Bills may be introduced, statements read into the congressional record, press releases issued and speeches made, bureaucratic rules introduced, and so on. For courts, the process is restricted to identifying an appropriate legal controversy and having that controversy arrive through litigation efforts at the doors of the court.

The second procedural constraint magnifies the first, as the courts are ostensibly to address only the particular issue or issues presented by the litigants in the case. This practice—known generally as the sua sponte doctrine—disfavors courts from addressing issues that parties do not appropriately prompt them to address. The sua sponte doctrine is so firmly entrenched in legal process that Epstein, Segal, and Johnson (1996) argue it is an entrenched norm, even at the level of the Supreme Court (though see McGuire and Palmer 1995). The doctrine impinges on the influence of judicial attention, as judges can only adjudicate those issues presented, thereby reducing the universe of issues a court may address. For the courts to exert any policy influence, litigants must present the policy to the court; and for the Supreme Court, at least four of the judges must be amenable to that framing of the issue or issues.

This further limits the utility of courts as an agenda-setting venue, proponents of the passive courts view suggest, because some issues are simply beyond the limits of the legal system (Note 1977). An apropos example here is the setting of a national minimum wage: though the Supreme Court could potentially address the constitutionality of a minimum wage, identifying an appropriate level of minimum wage or introducing the wage in the first place is impossible except through particularly novel legal arguments. Together, the courts are doubly limited in terms of settling on a policy: first, because policies may simply be poorly suited to legal contexts and argumentation, and second, because judges are prevented from extending decisions to policy concerns beyond the immediate case.

With standing and live question requirements, as well as the limits imposed by the sua sponte doctrine, litigation necessarily becomes oriented toward dealing with specific situations rather than the broader root causes of those situations (Rosenberg 1991). Formulating policy solutions—a method to address some public policy problem—in individual court cases is difficult under these constraints. Thus the ability of courts to influence policy requires large-scale and comprehensive litigation efforts (Epp 1998), as well as cooperation from lower courts (Hall 2013). This is a third procedural constraint. Ultimately, for courts to systematically have an impact on issue attention requires prolonged and comprehensive efforts on the part of members of the litigant community, meaning that a litigant support system must exist for the courts to effect policy change. Absent widespread and prolonged litigation, most court cases are likely to remain blips on the radar for all but the individuals directly affected.

Beyond procedural hurdles, the judiciary, as the “least dangerous branch” of the federal government, faces substantial political hurdles as well. Political constraints, proponents of the passive courts view suggest, arise from the fact that the courts are not adequately insulated from the political pressures of other institutions. As such, the courts do not stray too far from the preferences of other institutions and the public (see, e.g., Dahl 1957). Rather than addressing and reframing issues—engendering issue attention throughout government—the courts address only those issues for which they have popular support. Formally, the political constraints stem from, first, the court’s dearth of explicit implementation powers, and second, the formal checks on judicial power held by Congress and the executive branch.

The first of the political constraints is the court’s implementation powers, or lack thereof. In the words of one scholar, “The judiciary is given no positive powers and depends heavily upon political will to give effect to its decisions” (Clark 2009, 973). The courts ultimately rely, in large part, on their institutional legitimacy to secure compliance with judicial decisions, with rulings subject to the cooperation of lower federal courts and the public (Hall 2013). Moreover, risking confrontations with other institutions or public backlash could lead to lower levels of judicial legitimacy (Caldeira and Gibson 1992). Proponents of the passive courts view thus suggest that the courts must limit their levels of policy influence so as to secure a minimal level of legitimacy. This trade-off between judicial impact and judicial legitimacy restrains the courts from ever straying too far from the existing political mood. In fact, courts rarely do stray far from the dominant political consensus (Dahl 1957; Peltason 1961; Hoekstra 2000). Instead, the decisions of at least the Supreme Court typically are not far from the public’s preferred positions (Mishler and Sheehan 1993; McGuire and Stimson 2004; Ura 2014).

Beyond legitimacy constraints, other political actors and institutions have made efforts to curb the actual power of the judiciary to limit the influence of the courts on public policy by, for instance, removing jurisdiction for particular types of cases. Congress controls the allocation of funding for specific policies, and thus can refuse to appropriate funds for particular policies, as happened with school busing in 1980 (Murphy et al. 2006, 337). In addition to control over the purse strings, Congress can override or modify the Supreme Court’s interpretation of law in statutory decisions by creating and passing subsequent legislation, and in fact, Congress often does so (Eskridge 1991a; Hettinger and Zorn 2005; Hasen 2013; Christiansen and Eskridge 2014; Rice 2019). Beyond statutory decisions, in constitutional cases Congress can propose amendments to the Constitution, or again attempt to modify the decisions through legislation (Murphy et al. 2006). Indeed, recent work suggests Congress is even more likely to address constitutional instead of statutory decisions (Emenaker 2013). Overall, Congress has many mechanisms with which to “restrict, remove, or otherwise limit judicial power” (Clark 2009, 978). For the Supreme Court, such proposals influence its willingness to exercise judicial review, as the Court limits the use of judicial review when it is facing a hostile Congress (Clark 2009). Evidence also suggests that, following increases in court curbing, the Supreme Court generally defers more to the preferences of Congress (Hansford and Damore 2000). In sum, Congress has a number of potential avenues for exercising influence over the courts, which members of Congress have not been reticent to employ when the courts have strayed from congressional preferences.

Just as Congress can influence the judiciary, so too can the president. In the first place, presidents, with the advice and consent of Senate, select the justices who make up the courts. At some lag, then, federal judges are reflective of the prevailing political majority (Dahl 1957). Moreover, it is typical for the chosen judge to be representative of the community in which the judge resides (Chase 1972). One might reasonably expect such judges to decide cases consistent with the values of their local community, potentially resisting Supreme Court precedents not in line with their own personal and community interpretations. The executive branch can also influence the outcomes of cases by involving the office of solicitor general, which enjoys unusual success within the federal courts. The executive may even utilize the office to further issues the president considers a priority. For example, during the presidency of Ronald Reagan, the solicitor general was said to pursue “agenda cases,” or cases that were part of a broader social agenda (Salokar 1992; Wohlfarth 2009), a practice that continued into the presidency of George H. W. Bush (Pacelle 2003; Wohlfarth 2009).

If these influences do not secure an outcome in the courts that matches the president’s preference, the president has further recourse. In the extreme case, the president may simply refuse to implement judicial decisions. Perhaps the most famous example of this is Ex Parte Merryman,4 in which then chief justice Roger Taney issued a writ of habeas corpus for John Merryman, a prisoner being detained at the time by the Union Army. President Abraham Lincoln promptly disregarded Taney’s ruling, as well as a subsequent opinion excoriating what Taney believed to be the president’s abuse of power. As this incident demonstrates, in the face of outright executive refusal to comply, the courts are left with little recourse. If they do not wish to directly refuse to execute a decision, which may be the case for a variety of reasons (Whittington 2009), the president may use the immense public profile of the office to attack particular judicial decisions or precedents, as Presidents Jackson, Lincoln, Reagan, George W. Bush, and Trump have done (Murphy et al. 2006).

In sum, proponents of the passive courts perspective believe there are extensive and potentially severe constraints on the judiciary. Judges are reflective of their communities and often the preferences of the prevailing political party. In the event they are not, they face potentially severe repercussions for straying from the preferences of those other institutional actors. Moreover, by nature of the legal process, they are limited to the issues appropriately presented to them by litigants. Litigants in pursuit of policy change must then consider the likelihood of positive outcomes through a judicial strategy, and the limited scope of any one of those outcomes. Taken comprehensively, the passive courts perspective suggests that courts are constrained to a secondary role in the policy process.

Proactive Courts View

In contrast to the passive courts view, proponents of the proactive courts perspective believe that federal courts play an important agenda-setting dynamic role in the policy process through their ability to act when other institutions cannot. Many of the procedural constraints discussed above, rather than inhibiting the courts from leading the charge into new policy areas, instead encourage the courts to take the lead. Because of the unique ch...