Supreme Court Agenda Setting

Strategic Behavior during Case Selection

U. Sommer

• Publisher: Palgrave Macmillan
• Year: 2014
• Print ISBN:
  9781137399915
• eBook ISBN:
  9781137398642
• Topic: Politics & International Relations
• Subtopic: Law Theory & Practice
• Index: Politics & International Relations

Much research is devoted to the decision-making power and precedent set by the Supreme Court. Less attention, however, is given to the strategic behavior during case selection. This book argues that case selection is done strategically, and by means of various criteria - influencing its constitutional position and importance.

C H A P T E R 1

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Introduction

That courts are passive political players is a widely accepted premise in the judicial politics literature. Having neither will nor force, the judiciary department is the least dangerous branch. Indeed, Rosenberg (1991) contends that due to its passive position within the American government, the Supreme Court of the United States is a Hollow Hope for those who strive for social change. Yet, there are some observers of the court that beg to differ (Bickel, 1962). Frankfurter and Landis, for instance, open their Study in the Federal Judicial System (1927) with the following assertion, equally accurate then as it had been in Tocqueville’s time and as it is today:

To an extraordinary degree legal thinking dominates the United States. Every act of government, every law passed by the Congress, every treaty ratified by the Senate, every executive order issued by the President is tested by legal considerations and may be subjected to the hazards of litigation ( . . . ) No other country in the world leaves to the judiciary the powers which it exercises over us.¹

Given the pivotal role the judiciary has had in American politics, it is safe to assume a free litigation market where legal entrepreneurs do not miss an opportunity to litigate (Baird, 2004; 2007). They bring all major (as well as minor) issues to court sooner rather than later. While the adjudication of politics has become a worldwide phenomenon in recent years (Tate and Vallinder, 1995; Hirschl, 2004), it has been a centerpiece of American politics for decades. The next assertion by Frankfurter and Landis is, thus, hardly surprising:

The essentially political significance of the Supreme Court’s share in the operations of the Union can hardly be overemphasized. (Frankfurter and Landis, 1927)

Granted, rulings of the Court (with some obvious exceptions such as Bush v. Gore) may not have the same immediate effect as the president’s decision to send American troops to war. Still the influence of Court decisions is far reaching. When federal agents apprehend an individual and take her or him into custody they read this person their rights. The Miranda warning, by now a staple of American law enforcement as well as its depiction in Hollywood movies, finds its origins in detailed instructions handed down by the Court. Establishing another aspect of the rights of the criminally accused that were considerably expanded by his Court in the mid-twentieth century, it was the opinion of Chief Justice Earl Warren delivered for the Court in Miranda v. Arizona where federal officers were carefully instructed on how to behave when taking an individual into police custody.

This opinion has had far-reaching implications for the practice of federal law enforcement agents. Indeed, 34 years after the ruling, when Miranda was challenged in Court as being overruled by Congress (in the Omnibus Crime Control and Safe Streets Act of 1968), the justices upheld the decision. Referring to warnings that “have become part of our national culture,” the justices held against suggestions to overrule the landmark decisions. What is more, the substantial effect on law enforcement survived later attempts to honor the letter but not the spirit of Miranda (e.g., in Missouri v. Seibert²). The implications of court opinions, however, go far beyond the protections it granted defendants under police custody.

The historical significance of the Court and the multitude of cases available to it in the litigation market are hard to reconcile with the passivity argument of the Hollow Hope strand. Its final rulings as far as case dispositions are concerned as well as the opinions it delivers lend the Court considerable sway in political, legal, social, economic, and constitutional spheres. To make this argument, however, we should go beyond the fact that the Court has been a pivotal player in critical junctions in American political history and examine its institutional makeup. To establish the causal mechanisms underlying the Court’s consistently influential role in American politics, we should examine how it really operates to see whether and how its institutions grant justices power that makes them anything but a Hollow Hope for those striving for social change. On close examination, this book finds, there are certain institutional features that allow the Court to be proactive. Of pivotal importance in this respect is the Court’s supreme discretion to set its own agenda. This is also part of the reason why the Supreme Court of the United States is unique in a comparative perspective; not all of its counterparts worldwide have a discretionary docket (Fleming and Krutz, 2002).

The explanation offered in this book for the Court’s ability to preserve its position in American politics rests with its gatekeeping capacity. Having the discretion to hear certain cases and deny others their day in Court allows the Court not only to influence how burning political questions are resolved (e.g., racial discrimination in Brown), but also permits it to avoid certain topics (e.g., the issue of gay marriage was not fully considered by the Court until the October 2012 term, despite considerable discrepancies between different jurisdictions within the union on this issue). Furthermore, in the judicial arena, just like elsewhere, timing may be of the essence. Having the ability to pick and choose the cases it fully reviews allows the Court to select what it deems the right timing to tackle certain issues.

In light of the multitude of cases brought to the Court every year, rather than a passive role, the Court may select cases wisely. A critical point here, therefore, would be whether justices are proactive players who choose cases with the merits³ in mind. In other words, are those cases chosen that would take the law of the land in the direction justices see fit.⁴ It is well established in the literature that justices are in a position to make strategic decisions. They do so at different points in the decision-making process on the court (Epstein and Knight, 1998; Maltzman et al., 2000). Given their agenda-setting prerogative and the huge choice of cases available, then, the decision whether to issue a Writ of Certiorari (or Cert for short) may be an internal institution of the court that is critical in this sense. It is probable that justices select cases with the legal doctrine that would result in mind. In other words, justices are opinion-minded when voting on Cert.⁵

Strategically selecting cases based on the expected legal doctrine that would stem from the opinion would take away much of the passive quality scholars traditionally ascribe to the Court. If they are strategic in this way, then the justices are more likely to be able to influence political reality in an active way using the tool they master best—crafting the law of the land.

The focus of this book is the decision on a Writ of Certiorari on the Supreme Court of the United States. While scholars have examined some strategic behavior at this stage, the goal of this book is to expand the scope of this investigation. Strategic conduct during Certiorari is accordingly attached to a broader institutional context that incorporates various goals of individual justices, the collegial game, the other branches, and time.

THE SUPREME DISCRETION

The consequentiality of the US Supreme Court’s prerogative to set its own agenda cannot be overestimated. In a 1975 Yale Law Journal article, former US Supreme Court justice Abe Fortas discusses the historical role of the Warren Court and of Chief Justice Earl Warren as a leader. He makes an interesting observation concerning the Court’s gatekeeping capacity:

It is, indeed, this action—the selection of cases for review—that may be a more significant indicator of the vitality of the Court at a particular time than the decisions that it reaches . . . [it is the] courage and initiative . . . in granting discretionary review and in choosing to confront difficult issues [that make for historical landmark decisions].⁶

Some of the examples Fortas uses are Baker v. Carr, Mapp, and Gideon. In those cases, the former Supreme Court associate justice argues, the decision to take the case was crucially important. The reason why Justice Fortas was so well familiar with Gideon, for instance, is that he had been personally involved in the case. Gideon v. Wainwright was a 1963 ruling by the Supreme Court of the United States, where the panel unanimously decided that under the Fourteenth Amendment to the United States Constitution state courts were required to provide counsel to defendants in criminal cases, if they could not afford one themselves. The decision in Gideon concerned a critically important extension to the states of the requirement made on the Federal government under a different constitutional provision—the Sixth Amendment.

Of particular interest to us is how the case unfolded and eventually was chosen by the Court out of a multitude of petitions for review. Based on a report by a witness in Panama City, Florida, on June 3, 1961, that he had seen Clarence Earl Gideon leaving a pool room that had been broken into, the police arrested Gideon. He was charged with minor offences, which under Florida law did not grant him the right to appoint a counsel to represent him in court. Gideon, who was thus left to represent himself, contended that under Supreme Court precedent he should be given counsel, but to no avail.

In his trial in a Florida court, Gideon was found guilty by a jury of his peers and sent to serve the sentence in state prison. Gideon wrote his petition for a Writ of Certiorari from jail, using the In Forma Pauperis route (i.f.p. is a Latin legal term that translates into “in the manner of a pauper,” according to which the Supreme Court allows petitions for review even by those who cannot meet the strict standards for a petition for Certiorari set by the clerk of the Supreme Court in terms of petition format, paper type to be used, etc.). In his Cert petition, Gideon sought to take Louie L. Wainwright, the secretary to the Florida Department of Corrections, to the Supreme Court arguing that under the Sixth Amendment and using the Fourteenth Amendment as a vehicle, his right for counsel should have been upheld in state courts just like in the federal system.

The debate around the incorporation of the Bill of Rights had taken different forms and concerned questions such as federalism and state privileges. Under the principles it had established for the incorporation of the Bill of Rights, since the 1930s the Court had gradually ruled that the rights and liberties protected by the first ten amendments to the Constitution should be binding on the states. The doctrine controlling the process was selective incorporation. The different provisions of the Bill of Rights were examined discretely in separate cases. By the time the Court heard Gideon, most of the rights under the bill had already been incorporated, largely indicating an incremental but still universal mode of incorporation.

Accepted that the likelihood of petitions to be granted review in Court is low in general, yet as table 2.1 indicates, the likelihood of i.f.p. petitions to be heard is particularly little. Yet, the Warren Court, which made several other progressive decisions concerning the rights of individuals accused with criminal offences, fished Gideon’s petition out of the ocean of other claims. After consideration, the Court accepted Gideon’s petition for review.

A document that had been handwritten in pencil on Florida prison stationery by Gideon himself, without the professional assistance of attorneys, attracted sufficient attention among the justices of the Supreme Court of the United States. Apart from granting a Writ of Certiorari in this case, the Supreme Court of the United States also assigned Gideon with a prominent Washington, DC, lawyer, Abe Fortas. While Gideon himself was not freed but rather eventually given a new trial, the implications of the ruling span the courts, the public defense systems, and the rights of the criminally accused in America writ large. Clearly, the gatekeeping institution of the Court was of critical importance in this landmark case and left a great impression on the attorney involved in the proceedings. This same attorney was to be appointed to the highest judicial bench only a few years later.

With the consequentiality of agenda setting on the Court in mind, it is important to mention that any attempt to analyze the Court’s gatekeeping powers in a methodical fashion quickly reveals how intricate that task really is. Perry opens his 1991 seminal work on Cert with two rather daunting citations for students of the Writ of Certiorari. First he brings the words of an associate justice of the Supreme Court of the United States who declares: “It is really hard to know what makes up this broth of the cert. process.”

Later he quotes a clerk saying: “How does a case get chosen? Serendipity” (Perry, 1991, p. 5).

This book is an attempt to take the challenge of systematically analyzing agenda setting on the Court. More specifically, he book examines the strategic relationship between Cert decisions and the decision on the merits with a special focus on opinions and opinion writing on the Court.

For policy and for legal reasons Court opinions are of utmost importance for justices. In certain cases, the final disposition may have direct consequences such as in Bush v. Gore, where the Supreme Court essentially determined that the outcome of the 2000 presidential elections would not be subject to a recount in Florida. As a result the original count remained in place keeping the 25 Florida electoral votes in the column of George W. Bush, effectively naming him president of the United States. Yet, the effect of opinions is of comparable magnitude to that of the final disposition, while at times it may be of a different nature.

For instance, the issue of judicial review in Marshal’s opinion in Marbury is not a simple answer to a yes/no question, as the one presented before the Court in Bush v. Gore. Instead, the decision in Marbury has transfigured into a cornerstone for an evolving constitutional doctrine (in Martin v. Hunter’s Lesse, Cohens v. Virginia, and a host of other cases including recent ones such as Flores and Dickerson). This doctrine, in fact, brought a fundamental change not only to judicial decision making and the role of the judiciary in the American political system, but also to systems around the world. Judicial review is a cornerstone of the system of separation of powers and the operation of checks and balances between the departments of government in a host of democracies worldwide.

The extant scholarship indicates that the decision on the merits (Boucher and Segal, 1995) as well as potential reactions of the elected branches (Epstein et al., 2002) are pivotal to the way justices set their agenda. In other words, justices are strategic and therefore forward thinking when selecting cases for plenary review. Opinions, consequential as they are, potentially constitute another strategic consideration, in fact, a strategic goal, during Cert. In addition, how the other branches might react to a ruling may influence the decision whether to put the case on the plenary docket in the first place. If all this is true and case selection is strategic—if cases are chosen according to their future influence on the law of the land—then the Court may not be as passive an institution as it is sometimes considered to be. Finally, this book not only adds to our knowledge of Cert and opinion writing in and of themselves, but also provides a more comprehensive view of the collegial game on the court, its institutional antecedents, and the resulting jurisprudence and policy. Let us begin with an overview of the chapters in this book.

CHAPTER OVERVIEW

Chapter 2 provides an overview of the Writ of Certiorari, its history, and the related Court institutions. I examine the history of Cert as it was adopted from the British system and then written into law in the United States in multiple acts of Congress. The history of the Court’s ability to protect its position as a prominent governmental institution in a system and a country that grow rapidly both in size and in complexity is coalesced with its gradually increasing control over its docket. The political struggles that were involved in the expansion of the Court’s discretionary docket are analyzed. This reveals how internal Court institutions are a product not just of the decision of justices but also of the interaction between the branches. While the decision-making procedures of the Court may originate, at least to some extent, from practices the justices themselves develop, some of those are also granted the approval of the legislature by becoming a part of federal legislation. It is with Congress’s approval that internal Court practices, including those related to its gatekeeping power, are formalized and become an importan...

Table of contents

• Cover
• Title
• 1 Introduction
• 2 The History and Institutions of the Writ of Certiorari
• 3 The Theoretical Framework: Case Selection and Strategic Behavior on the Court
• 4 Voting Contingents, Cert Pivots, and Voting Volatility
• 5 Strategic Votes on Cert: Evidence from Justices’ Papers
• 6 Opinion Authorship and Strategic Cert
• 7 Conclusions
• Appendix 1: SIMEX Computations
• Appendix 2: The Judiciary Act of 1925
• Appendix 3: Rules of the Supreme Court of the United States
• Appendix 4: Original Material from the Blackmun Files
• Notes
• References
• Index