Answering the Call of the Court

How Justices and Litigants Set the Supreme Court Agenda

Vanessa A. Baird

• Publisher: University of Virginia Press
• Year: 2008
• Print ISBN: 9780813925820
• eBook ISBN: 9780813930442
• Topic: Politics & International Relations
• Subtopic: Political History & Theory
• Index: Politics & International Relations

The U.S. Supreme Court is the quintessential example of a court that expanded its agenda into policy areas that were once reserved for legislatures. Yet scholars know very little about what causes attention to various policy areas to ebb and flow on the Supreme Court's agenda. Vanessa A. Baird's Answering the Call of the Court: How Justices and Litigants Set the Supreme Court Agenda represents the first scholarly attempt to connect justices' priorities, litigants' strategies, and aggregate policy outputs of the U.S. Supreme Court.

Most previous studies on the Supreme Court's agenda examine case selection, but Baird demonstrates that the agenda-setting process begins long before justices choose which cases they will hear. When justices signal their interest in a particular policy area, litigants respond by sponsoring well-crafted cases in those policy areas. Approximately four to five years later, the Supreme Court's agenda in those areas expands, with cases that are comparatively more politically important and divisive than other cases the Court hears. From issues of discrimination and free expression to welfare policy, from immigration to economic regulation, strategic supporters of litigation pay attention to the goals of Supreme Court justices and bring cases they can use to achieve those goals.

Since policy making in courts is iterative, multiple well-crafted cases are needed for courts to make comprehensive policy. Baird argues that judicial policy-making power depends on the actions of policy entrepreneurs or other litigants who systematically respond to the priorities and preferences of Supreme Court justices.

ONE

The Supreme Court in the U.S. Legal System: Appeals and Case Selection

The federal judicial system, the apex of which is the Supreme Court, is one of the three branches of the national government, along with the executive and legislative branches. Whereas Congress legislates and the president executes the law, the Supreme Court’s job is to be the final arbiter of what the law says. Courts are political institutions in that they often decide who gets what and how much, but they are legal institutions in that they justify their decisions with various legal rationales, rationales that are more or less logically tied to the wording or intent of the law, or rationales provided in previous Court decisions.

Generally speaking, the U.S. legal system is a common law system, as distinguished from a civil law system. In a civil law system, most of what is considered “the law” is statutory, meaning that it is passed by legislatures. In a purely civil law system, legislatures try to anticipate every possible conflict and resolve these conflicts in the language of the law before they actually occur. In a common law system, much of what is considered to be the law is pieced together out of the rationales created by judges to resolve specific conflicts. Although most systems are in reality somewhat mixed and therefore have aspects of the law that are both statutory and judicial, in common law systems an essential key to finding out about the law is to read decisions written by judges. Thus, in the United States, to find out what the Constitution says, one must read Supreme Court decisions.

The U.S. legal system is hierarchical in that the U.S. Constitution is supreme to all other law or actions by the government; every action by the government must be consistent with its tenets. Then, the federal government’s laws are supreme to all other laws, such as state and municipal laws. This is true, however, only when the federal government has the right to act; the federal government is limited by the Tenth Amendment in the U.S. Constitution, which says that all powers not given directly to the federal government lie with the states or the people. The Supreme Court is the arbiter and interpreter of this balance of power. When the federal government does not have the right to act, then state supreme courts are the final arbiters of conflict.

It takes a majority of both houses of Congress, and the president’s approval, to pass laws, and the Supreme Court’s job is to ensure that those laws are consistent with the Constitution. This is the Court’s place in the system called “checks and balances.” Its job to ensure consistency with the Constitution includes the power to “check” the power of other institutions to pass laws.

One notable limitation of the Supreme Court’s power to check the other institutions lies in the constitutional limitation that the Court can only consider true “cases or controversies.” What this means is that it cannot consider the constitutionality of a law until someone who is damaged by the law in some measurable way brings litigation. It is this limitation that justifies the investigation here; for the Court to protect rights and to ensure that actions are consistent with the Constitution and other laws, it depends on citizens to complain about legal violations against them, or on groups with constitutional goals to support such litigation. In common law systems, the ability to piece together what a constitution dictates requires various conflicts to be brought to court, and in particular, the Supreme Court.

The purpose of this chapter is to describe the process by which litigation reaches the Supreme Court. It shows the place of the Supreme Court in the judicial system and shows how litigation passes through the lower courts to get to the Supreme Court. This section also gives examples of the kinds of questions that can be presented to the Supreme Court. Then, the last part of the chapter describes the process that the Supreme Court uses to decide which cases to select and discusses how previous scholars have explained what affects that process. The chapter then shows how that literature is related to developing explanations about what affects the cycles of policy attention at the Supreme Court.

The Supreme Court in the Judicial System

The U.S. judicial system is a dual system. This means that there are federal courts and state courts. Federal and state courts have separate jurisdictions, meaning that they consider different kinds of cases. Generally, federal courts hear cases dealing with federal law and state courts hear cases dealing with state law.¹ States can also create other kinds of courts, such as municipal courts and small-claims courts. The various states also have their rules about which courts can hear which kinds of cases, and these rules can be different across states, but the rules for federal courts are the same across the states.

There are two kinds of courts in the federal and state systems: trial (or district) courts and appeals courts. There are federal and state trial courts, and there are also federal and state appeals courts. All cases must go to trial first, and then the issues of law considered during the trial may be appealed to higher courts, which are called appeals (or appellate) courts. Included in the category of appeals courts are the courts of last resort, which are the state supreme courts for the state courts and the U.S. Supreme Court for the federal courts. Thus, the system is both dual and hierarchical. Trial courts are considered lower courts and appeals courts are considered higher courts, and courts of last resort are considered the highest courts.

Trial courts are entrusted with finding the facts, such as whether a person committed a crime or not, or whether a person is guilty of a civil violation. The judges of trial courts are given the job of interpreting the law, and the jury or the trial judge is in charge of interpreting the facts. By the end of the trial, according to the law, there is no more questioning of fact.² What may be questioned on appeal is the trial judge’s interpretation and application of the law.

The United States is unique in that every judge—every municipal, state, and federal judge—is entrusted with ensuring that everything that happens in the trial is consistent with the U.S. Constitution and all other laws passed by Congress. In non-federal courts, such as state and municipal courts, the judges must also ensure that every interpretation of law in the trial is consistent with the state constitutions and laws. Thus, every judge is charged with interpreting the law in the trial. In appeals courts, these interpretations of the law that happened during the trial may be challenged. If the question only deals with state law, then the last court to take an appeal is the state supreme court. If the interpretations invoke federal or U.S. constitutional law, then the court of last resort is the U.S. Supreme Court.

The kinds of questions that may be brought to appeals courts include:

• Did the parties have standing to sue, meaning have they been damaged in a way that the court can rectify? (In civil [noncriminal] cases, this is one of the first questions that must be asked by the judge.)

• Did the court that decided the case have the right to decide the case; in other words, did it have jurisdiction?

• If it is a federal law, does the federal government have the right to pass and execute this law, or does this type of law fall into what the Constitution calls “reserved to the States respectively, or to the people”? Note that if the answer to this second question is yes, the federal court cannot continue to hear the case.

• Is the federal law being applied correctly?

• Is the federal law being implemented in the correct spirit of what the legislature intended?

• Is the state or municipal law consistent with federal law?

• Has a federal, state, or municipal actor or agency acted consistently with federal law or the Constitution?

• Does the law in question violate the civil rights or liberties given by the constitution of the state or the U.S. Constitution?

• Has the state or federal government supported religion sufficiently to be a violation of the establishment clause?

• Is there a question about the freedom of speech or assembly?

• Has there been due process in the criminal trial?

• Is there a state, federal, or civil (among citizens) taking of personal property (such as a fine, fee, or regulation) or liberty (such as arrest, jail, or prison time) without what is considered by the state or U.S. constitutions or other laws to be a fair process?

• Was the jury given the right sort of instructions when they determined the criminal guilt or civil liability of the defendant?

• Was a juror that should have been dismissed for bias allowed to serve on the jury?

• Was the evidence used against the accused collected legally?

• Did the police give the Miranda warning (“You have the right to remain silent . . .”)?

The above list is not meant to be exhaustive, but is meant to give some examples of the kinds of legal questions that are brought to appeals courts. Except for rare circumstances, an appeals court, whether an intermediate appeals court or a court of last resort such as a state supreme court or the U.S. Supreme Court, cannot correct the facts that were found by a judge or a jury from the trial. Courts of appeals can generally only correct interpretations of law.

Because both federal and state judicial systems are hierarchical, appeals court justices’ interpretations are supposed to have implications for how other courts deal with the same questions in the future. Although there are places for error and individual judges’ discretion, generally, lower courts are supposed to follow higher court rulings on the same issue of law. Appellate justices write opinions with stated rationales that are meant to guide similar questions in lower courts. When lower courts err, appellate courts have the chance to correct the error. Though a great deal of scholarly work has been devoted to debating the extent to which lower courts follow higher court decisions, judicial scholars tend to believe that appellate court decisions matter for the interpretation of law in lower courts. Lower courts have some discretion in implementing these guidelines, but their decisions in interpreting past higher court decisions can be challenged by the parties to litigation on appeal. Conventional wisdom suggests that lower court judges do not like to have their procedural matters overturned by higher courts and, therefore, these guidelines from higher appellate courts often act to constrain lower courts. Higher court guidelines for future lower court rulings are called “precedent” or stare decisis, which is Latin for “let the decision stand.”

When a party to a case believes that the judge or lower appellate court justice has erred in the interpretation of the law, then that party may appeal to a higher court. In the case of the Supreme Court, the case must be heard first by one of the federal appellate courts, called the U.S. Circuit Courts of Appeals. The U.S. Circuit Courts are divided into twelve geographical districts. Cases may be heard by a panel of three justices or they may be heard “en banc,” meaning that all of the justices in the circuit will hear the case. Justices in the circuit courts then vote to decide whether the lower court was right in its application of the law.

The losing party may decide to ask the Supreme Court to rule on the case. Most often, when cases are brought to the Supreme Court, they are technically not usually appealed to the Court; rather, they come in the form of petitions for a writ of certiorari.³ Certiorari—cert. for short—is Latin for “to be informed of,” or “to be made certain in regard to.” It is as if the litigants are asking the Court to make them certain that their case was decided correctly in the lower courts. The Supreme Court chooses approximately one hundred cases from a pool of petitions that number in the many thousands. Whereas circuit courts must take cases appealed to their courts, Supreme Court justices have discretion over which cases they will choose. Thus, the chance that a case will get chosen by the Supreme Court is very small.

The justices have clerks who sift through these petitions and write reports that make recommendations about which cases should be chosen. Within the Supreme Court’s internal set of guidelines, Rule 10 suggests that cases should be chosen because they represent an important question of law that has not yet been considered by the Court, or alternatively, because different courts have resolved the same issue in different ways. Thus, the justices and their clerks search through a wide variety of cases to choose which ones best suit the Court’s purposes. They choose cases according to a “rule of four,” which means that a minority, four of the nine justices, can grant cert. to a case. The next section of this chapter provides a summary of the literature that investigates what causes certain cases to be chosen over others. The implication of this section that is important for the rest of the book is that some cases are better than others in their policy importance, the case facts that they present, and the legal arguments made by the lawyers.

Setting the Court’s Agenda

SELECTING CASES FROM THE POOL OF CERTIORARI PETITIONS

Most of the studies that explain the agenda-setting process of the U.S. Supreme Court have generally focused on the factors that drive case selection. Every year, thousands of cases arrive at the Court requesting a writ of certiorari. These cases are then discussed in conference to decide whether they are “certworthy,” meaning that they merit attention from the Supreme Court. Most Supreme Court agenda–setting scholars have focused on the attributes of cases that make them appealing to justices in the cert. process. Such studies focus on whether justices choose cases with the intention of maximizing their policy influence in the process, whether the process is driven by purely legal factors, or whether there are inter- or intra-institutional factors that drive the decision to select a case.

For example, Schubert (1959) reasoned that if justices made certiorari decisions with regard to their personal ideological preferences, then they would be more likely to grant certiorari to a case when they disagreed with the lower court’s decision so that they could overturn that lower court’s ruling. In other words, to maximize their influence, they should usually choose cases with which they disagree. He concluded with his analysis that, given institutional resource limitations, if they acted in accordance with their preferences, justices were more likely to grant certiorari in cases in which they disagreed, particularly when the lower appellate case was decided by those with an opposing ideology.

Other scholars, such as Ulmer (1972), have found only weak evidence for the hypothesis that justices are more likely to grant cert. to cases with which they disagree. To explain the dearth of findings in these earlier studies, Brenner (1979) identifies a problem in the research design of some of the studies in that many of them assumed that they should be looking for all the justices’ cert. votes to reflect their attitudes. He argues that if more than four justices vote to grant cert., then justices have a reduced need to vote according to their policy preferences (1979). Later, Ulmer (1984) presents evidence that the strategy depends on the content of the case; some cases are more important from a policy perspective, and other cases simply require a legal resolution. In the end, scholars have come to the conclusion that the cert. decision is more complicated than simply being a function of disagreeing with the previous decision.

Along this same line of logic, Segal and Spaeth (1993) argue that scholars’ expectations were too high; if justices were to grant certiorari to every case in which they believed the lower courts erred, then the institution would be overloaded with cases. They argue it would be wrong to conclude that justices do not make certiorari decisions according to their ideology because every vote cannot be predicted by their ideological predispositions. Nonetheless, many scholars use the fact that many of these cert. votes are not based on attitudes as evidence that purely legal factors are important to the justices in the cert. process (Provine 1980; Perry 1991). Perry’s interviews with Supreme Court justices led him to conclude that although there are occasionally strategic or politically motivated decisions at the cert. stage, “political scientists do often over-politicize the court, disregarding many of the very real constraints upon it” (1991, 3).

Strategic models of the certiorari process take some of those constraints into consideration (Palmer 1982; Brenner and Krol 1989; Boucher and Segal 1995; Epstein and Knight 1998; Caldeira, Wright, and Zorn 1999). Some of these strategic cert. decisions are called “aggressive grants” and “defensive denials.” For example, Boucher and Segal found that justices were more likely to vote to hear a case if their side would be more likely to win on the merits—called aggressive grants. Caldeira, Wright, and Zorn, with an analysis of all cases requesting cert. in 1982, find examples of both aggressive grants and defensive denials; they also find that the distance between the justice’s ideology and the ideological direction of the lower court’s de...

Table of contents

• Cover
• Half title
• Title
• Copyright
• Dedication
• Contents
• Acknowledgments
• Introduction
• 1 The Supreme Court in the U.S. Legal System: Appeals and Case Selection
• 2 Explaining the Supreme Court’s Policy Cycles
• 3 Immigrants’ Rights, Welfare, and Federalism
• 4 Cyclical Patterns on the Supreme Court’s Agenda
• 5 Corroborative Analyses: The Political and Legal Context of the Supreme Court
• 6 The Impact of Moderate Justices’ Preferences on the Ideological Placement of Future Cases
• Conclusions
• Notes
• References
• Index