Foreword: Elected Branch Influeces in Constitutional Decisionmaking (original) (raw)
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Does Legal Doctrine Matter? Unpacking Law and Policy Preferences on the U.S. Supreme Court
American Political Science Review, 2008
Judicial scholars often struggle to disentangle the effects of law and policy preferences on U.S. Supreme Court decision making. We employ a new approach to measuring the effect—if any—of the law on justices' decisions. We use positions taken on Supreme Court cases by members of Congress and presidents to identify policy components of voting. Doing so enables us to isolate the effects of three legal doctrines: adherence to precedent, judicial restraint, and a strict interpretation of the First Amendment's protection of speech clause. We find considerable evidence that legal factors play an important role in Supreme Court decision making. We also find that the effect of legal factors varies across justices.
2015
J udicial scholars often struggle to disentangle the effects of law and policy preferences on U.S.Supreme Court decision making. We employ a new approach to measuring the effect—if any—ofthe law on justices ’ decisions. We use positions taken on Supreme Court cases by members of Congress and presidents to identify policy components of voting. Doing so enables us to isolate the effects of three legal doctrines: adherence to precedent, judicial restraint, and a strict interpretation of the First Amendment’s protection of speech clause. We find considerable evidence that legal factors play an important role in Supreme Court decision making. We also find that the effect of legal factors varies across justices. We don’t turn a matter over to a judge because we want his view about what the best idea is, what the best solution is. It is because we want him or her to apply the law....They are constrained when they do that....They need to be bound down by rules and precedents:... the rules, ...
The Effect of Politically Salient Decisions on the U.S. Supreme Court's Agenda
The Journal of Politics, 2004
It is widely recognized that the U.S. Supreme Court sets its agenda by choosing to hear certain cases and refusing to hear others. But what influence, if any, does the Court have on the types of cases that are appealed to it? The Court has no formal power to solicit cases, but I contend that potential litigants interpret politically salient Court decisions as signals of its willingness to hear additional cases in certain policy areas. When this happens, the Court receives additional well sculpted cases that allow it to make policy in those areas. The theoretical implications are twofold: 1) by signaling the litigant community to support litigation in certain policy areas, the Supreme Court can bring cases onto its agenda well before the certiorari process begins, and 2) the Supreme Court is dependent on extrajudicial actors and their resources to make comprehensive policy. Scholars have long recognized that knowledge of the agenda setting process is essential to a full understanding of the political power of an institution. Schattschneider (1960) calls agenda setting the "supreme instrument of power," and Bachrach and Baratz (1962) regard the agenda setting process as one of the "two faces of power." Much of the focus on agenda setting deals with how Congress determines the subject of its attention (e.g. Downs 1972; Kingdon 1995; Baumgartner and Jones 1993). But how do courts-the U.S. Supreme Court, in particular-set their agendas? The obvious answer is that the Supreme Court chooses from a wide assortment of cases that are appealed to it every year. The conventional view, in other words, is that the Court's agenda setting function effectively begins when it is presented with a list of cases to choose from-cases that litigants themselves have chosen to bring to the Court. This view distinguishes the Supreme Court from Congress in the freedom to put issues on the agenda. As long as Congress can claim federal jurisdiction, it can put any issue on its agenda with few external constraints. On the other hand, the Supreme Court's power to set its agenda is limited by the cases brought to it. However, if litigants choose cases based on their perceptions of the Supreme Court's policy priorities, then the Supreme Court has greater power to drive its agenda than previously believed. The pathway by which the Supreme Court exerts power over the range of cases it receives is the focus of this article. United States Supreme Court agenda setting scholars conventionally address the determinants of the cases that make them more appealing to justices. The aspects of cases that have been found to matter include conflict, disagreement with lower courts' decisions, the presence of amicus briefs, support from the Solicitor General, and strategic considerations of justices, such as defensive denials and aggressive grants (
From Bakke to Grutter and Gratz : The Supreme Court as a Policymaking Institution
Review of Policy Research, 2004
Finding the best means for ensuring equal opportunities for women and minorities has long been controversial and initial efforts to do so were addressed by executive orders, and later the historic Civil Rights Act of 1964. However, this paper argues, since its initial Bakke decision in 1978, it is the Supreme Court that has set policy in this area. In the twenty-five years between that decision and the recent Gratz and Grutter decisions, the court has shifted in its stance, in many cases declaring unconstitutional what it once sanctioned. That shift has not resulted from changes in laws or new amendments to the Constitution, nor can it be seen as reflecting public opinion, as that is not clear-cut. Rather, affirmative action policy has reflected the ideological stances of the justices sitting at the time a decision was rendered. The paper concludes with an assessment as to what this means for a democracy. The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court. .. the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Abraham Lincoln, First Inaugural Address In June of 2003, the Supreme Court handed down two landmark decisions defining the acceptable parameters of the use of affirmative action in university admissions decisions (Grutter v. Bollinger and Gratz v. Bollinger). The importance of these cases was reflected in many ways, from the dozens of organizations and individuals who hoped to influence the outcome through amicus briefs to the extensive news coverage the cases received. Commentators were quick to express their support or opposition to the verdict, but what was left unquestioned was whether it should be the Supreme Court, the unelected branch of government, who sets policy in this area. The purpose of this paper is to examine the court's policymaking role through the lens of affirmative action. The extent to which the Supreme Court should and does engage in policymaking has long been controversial. The justices do not do so directly, of course, but rather through the power of judicial review; that is, in declaring policies to be in violation of law or the Constitution. It is clear from Federalist 78 that Alexander Hamilton (1961) saw this power as necessary to protect "the minority party in the community" from "serious oppression" that may occur if the majority has a mind to enact legislation counter to the will of the people as represented in the Constitution. From another point of view, this creates what Alexander Bickel (1962) called the "countermajoritarian difficulty." He wrote: "when the Supreme Court declares unconstitutional a legislative act or the action of an elected executive, it thwarts the will of representatives of the actual people of the here and now; it exercises control, not in behalf of the prevailing majority, but against it" (Bickel, 1962, pp. 16-17).
Theorizing the U.S. Supreme Court
Oxford University Press eBooks, 2017
We summarize the formal theoretical literature on Supreme Court decision-making. We focus on two core questions: What does the Supreme Court of the United States do, and how can one model those actions; and, what do the justices of the Supreme Court want, and how can one model those preferences? Given the current state of play in judicial studies, these questions then direct this survey mostly to so-called separation of powers (SOP) models, and to studies of a multi-member ("collegial") court employing the Supreme Court's very distinctive and highly unusual voting rule. The survey makes four main points. First, it sets out a new taxonomy that unifies much of the literature by linking judicial actions, modeling conventions, and the treatment of the status quo. In addition, the taxonomy identifies some models that employ inconsistent assumptions about Supreme Court actions and consequences. Second, the discussion of judicial preferences clarifies the links between judicial actions and judicial preferences. It highlights the relationships between preferences over dispositions, preferences over rules, and preferences over social outcomes. And, it explicates the difference between consequential and expressive preferences. Third, the survey delineates the separate strands of SOP models. It suggests new possibilities for this seemingly well-explored line of inquiry. Fourth, the discussion of voting emphasizes the peculiar characteristics of the Supreme Court's voting rule. The survey maps the movement from early models that ignored the special features of this rule, to more recent ones that embrace its features and explore the resulting (and unusual) incentive effects.