Political influence over Supreme Court criminal procedure cases (original) (raw)

A rational choice theory of the Supreme Court

1989

This paper models the Supreme Court as a self interested party in a bargaining game between the Supreme Court, the two houses of Congress and the President. We analyze the political incentives for the Supreme Court to intervene in the legislative process. We show that the Court will usually intervene following important personnel changes in the composition of Congress and/or the executive. We also show that the Supreme Court does not necessarily increase the stability of political outcomes. Depending on the nature of the political changes, the Supreme Court may delay or accelerate the adoption of new policies. Finally, this model suggests that the Supreme Court constrains more the President than Congress. We would like to thank John Ferejohn, Tom Romer, Stephen Ross, Barry Weingast, and participants at the Hoover Seminar on Collective Choice for helpful comments and suggestions. Fellowship support from the Institute for Government and Public Affairs at the University of Illinois, through the Ameritech Research Fellowship Program, to Spiller is gratefully acknowledged. 5 The empirical importance of considering both types of issues (i.e. statutory and constitutional) is shown in Casper (1976), where Dahl's (1974) conclusions are reversed simply by considering both types of cases. result from the institutional structure of government. Consider, for example, legislative enactment. Congress, with or without the consent of the executive, can react to Court decisions it dislikes by taking several actions. 6 Congress could directly reverse the Court's interpretation of a statute by enacting legislation to that regard. 7 A constitutional amendment, 8 or a change in the Court's jurisdiction 9 or composition 10 are other alternative ways for Congress to influence the Court. More indirectly, Congress could "punish" the Court by limiting budgetary support for the judiciary. 11 Similarly, Congressional jurisdictional rules, the committee system, bicameralism, the President's veto power, are all important institutional features that will impact on the nature and extent of the constraints faced by the Court. 12 The model of the Supreme Court that we introduce below is very simple. We abstract from most of the rich institutional and personal issues that have 6 10 See Lawlor (1986), and Caldeira (1987) for discussions of bills introduced in Congress to change the Court's composition. 11 Schmidhauser and Berg (1972, pp. 8-18) discuss the significance of Congress' budgetary responses to Supreme Court decisions. See also Wasby (1988, p. 300). 12 Although some of these institutional arrangements have been studied within the congressional context (Shepsle and Weingast (1982), Weingast and Moran (1983)), few attempts have been made to analyze their effects on Supreme Court decisions.

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 (

A contractual model of the voting behavior of the supreme court: The role of the chief justice

International Review of Law and Economics, 1996

Political scientists have long debated the role of the Supreme Court in public policymaking. Much of the debate has centered around the issue of judicial independence from political factors. Despite a rather extensive debate in the literature, the question of independence has rarely been subjected to systematic testing. This paper examines the role of the Chief Justice of the Supreme Court in linking decisions of the Court to the desires of Congress. Specifically, the paper focuses on the role of the Supreme Court Chief Justice as an agent of Congress that reacts to budgetary signals sent by the Congress. The resulting relationship between budgets allocated to the Court and decisions reached by the Court are analyzed from 1946 to 1988.

A Positive Political Model of Supreme Court Economic Decisions

Southern Economic Journal, 2002

We develop a positive political model of the U.S. Supreme Court. Looking at the Court's economic cases for the period 1953-1993, we find a significant larger fraction of conservative decisions under Republican presidents and more conservative leadership of the House and Senate Judiciary Committees. Conservative decisions are also found to be positively correlated with the fraction of the Court appointed by Republican presidents and the rate of price inflation. We argue that our findings cast serious doubt on the common view of the Supreme Court as a completely independent, apolitical institution.

Executive Branch Socialization and Deference on the U.S. Supreme Court

Law & Society Review, 2012

Are Supreme Court justices with prior experience in the executive branch more likely to defer to the president in separation of powers cases? While previous research has suggested that such background may signal judicial policy preferences but does not shape them, I argue here that institutional socialization may indeed increase future judicial deference to the president. Using an original data set of executive power cases decided between 1942 and 2007, I model justice-votes to test this hypothesis. I uncover three noteworthy findings: (1) a clear correlation between prior executive branch experience and support for the executive branch, (2) the degree of this support intensifies as executive branch tenure increases, a finding congruent with a socialization hypothesis, and (3) contrary to received wisdom, executive powers cases possess a clear ideological dimension, in line with the expectations of the attitudinal model. In 2005, on the well-respected legal blog Opinio Juris, law professor Julian Ku reflected on the likelihood that then Judge Roberts would be a strong supporter of executive power once on the Supreme Court. After noting that Roberts had clerked for former Chief Justice Rehnquist, also a supporter of a robust executive branch, Ku stated that "like Jackson, who served as Attorney-General for FDR, and Rehnquist, who served as an Assistant Attorney General for Nixon, Roberts' main government experience has been in the executive branch as associate White House Counsel and Deputy Solicitor General" (Ku 2005). The implication of this statement was clear: as a former member of the executive branch, Judge Roberts was expected to be more deferential to the president in cases involving executive power. The notion that background affects behavior might seem an obvious truth. When it comes to judicial decision-making, however, particularly for hard cases at the appellate court level, the study of The author wishes to thank Jeff Yates, Brett Curry, and the anonymous reviewers for their helpful comments and suggestions on previous versions of this article.

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.