The Supreme Court in a Separation of Powers System

Table of contents :
Cover......Page 1
Copyright......Page 3
Title......Page 4
Dedication......Page 6
Contents......Page 8
List of Figures......Page 11
List of Tables......Page 12
Acknowledgements......Page 13
Introduction: Recalculating: Getting to the Supreme Court with a GPS......Page 16
Acquiring Satellites......Page 17
Research Design......Page 18
In .2 Miles, Prepare to Turn Right......Page 21
1 The Supreme Court: The Nation’s Balance Wheel?......Page 23
The Design of the Framers and the New Normal......Page 27
Understanding Decision Making by the Supreme Court......Page 30
Making Public Policy and Protecting Legitimacy......Page 31
A First Test of the Decision-Making Model......Page 36
A Quick Look Ahead......Page 39
Conclusion......Page 40
Appendix to Chapter 1......Page 43
2 The Supreme Court and the President: An “Informal and Limited Alliance”......Page 46
“ He Shall Nominate . . .”......Page 48
“He Shall Take Care That the Laws Be Faithfully Executed”......Page 53
“ To Supervise and Conduct Government Litigation”......Page 55
“An Informal and Limited Alliance”......Page 58
1.81 Miles, But Sometimes It Seems Much Closer......Page 60
The Umpire Strikes Back......Page 65
Conclusion......Page 68
Appendix to Chapter 2......Page 71
3 The Supreme Court and Congress: The First Shall Be Last, Will the Last Be First?......Page 74
Congress and the Supreme Court......Page 77
The Panoply of Checks......Page 79
The View from Capitol Hill......Page 86
The House and the Senate......Page 93
What? We Worry?......Page 94
Conclusion......Page 96
Appendix to Chapter 3......Page 99
4 The Supreme Court and the Bureaucracy: The Clash of Kafkaesque Forces?......Page 105
The Bureaucracy: Perception and Reality......Page 110
The Courts and the Bureaucracy: The Real Powers?......Page 112
Politics and the Bureaucracy......Page 113
The Making of the Modern Supreme Court and the Implications for the Bureaucracy......Page 115
The Evolution of Administrative Law......Page 118
Who’s the Boss? Congress or the President?......Page 120
The Third Way? Judicial Control of the Bureaucracy......Page 122
Models of Bureaucratic Behavior......Page 123
The Shifting Standards of Review......Page 125
The Role of the Solicitor General......Page 129
After the Decision: The Bureaucratic Response......Page 134
Conclusion......Page 137
Appendix to Chapter 4......Page 140
5 The Supreme Court and Public Opinion: The Two Faces of Janus......Page 144
The Public and the Temple......Page 149
Should the Court Pay Attention to the Public?......Page 151
To Not Know the Supreme Court Is to Love the Supreme Court: Specific and Diffuse Support......Page 153
The Gravitational Pull of the Ruling Majority......Page 159
Looking for Janus (the Retrospective Face)......Page 162
The Supreme Court Cares About the Elites, Not About You......Page 166
The New School of Athens and the Second Face of Janus......Page 170
Conclusion......Page 174
Appendix to Chapter 5......Page 178
6 “Lobbying” the Judicial Branch: May it Please the Court?......Page 182
Because That’s Where They Make the Policy......Page 187
Interest Groups, Pluralism, and Political Litigation......Page 188
Parting the Curtains and Opening the Door: The Dance of Litigation......Page 193
Why Do You Think They Call Them “The Haves”?......Page 201
The Special Case of the Solicitor General: The Ultimate Repeat Player......Page 204
Jenga!!!......Page 210
Conclusion......Page 214
Appendix to Chapter 6......Page 219
7 The Supreme Court and the Lower Courts: A Bureaucracy to Call Your Own......Page 225
The Circle of Law......Page 229
If the Courts of Appeals Make a Decision and No One Is Listening, It Still Makes a Sound......Page 231
Of Principles and Principals: There Is No “I” in Team, But There Is “Me”......Page 232
“What Am I? A Potted Plant”......Page 237
It’s 3:00 A.M. and No One Is Around......Page 241
Up the Down Staircase......Page 242
Issue Framing and Setting the Agenda......Page 246
Lower Courts: The Interpreting Population......Page 250
The Conditions for Faithful Interpretation and Implementation......Page 252
Holding the Line......Page 256
Lead, Follow, or Get Out of the Way......Page 257
Conclusion......Page 259
Appendix to Chapter 7......Page 262
8 Conclusion......Page 267
Managing the Court’s Environment......Page 270
I Knew I Forgot Something: Where’s the Law?......Page 272
The Delicate Balance......Page 274
A Quick Trip Through the Modern Court......Page 277
Opening Farewell......Page 279
Cases Cited......Page 280
Bibliography......Page 282
Subject Index......Page 314
Name Index......Page 320

Citation preview

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The Supreme Court in a Separation of Powers System

The U.S. Supreme Court is not a unitary actor, and it does not function in a vacuum. It is part of an integrated political system in which its decisions and doctrine must be viewed in a broader context. In some areas, the Court is the lead policy maker. In other areas, the Court assumes an interstitial role, filling in the gaps of policy. In either instance, the Supreme Court’s work is influenced by and in turn influences all three branches of the federal government as well as the interests of the American people. Pacelle analyzes the Court’s interaction with the separation of powers system, detailing its relationship to the presidency, Congress, the federal bureaucracy, public opinion, interest groups, and the vast system of lower courts. The niche the Court occupies and the role it plays in American government reflect aspects of both the legal and political models. The Court has legal duties and obligations as well as some freedom to exercise its collective political will. Too often those studying the Court have examined it in isolation, but this book urges scholars and students alike to think more broadly and situate the highest court as the “balance wheel” in the American system. Richard L. Pacelle, Jr., is Professor and Head of the Department of Political Science at the University of Tennessee. His research focuses on the U.S. Supreme Court, and he is the recipient of numerous awards for both teaching and scholarship.

First published 2015 by Routledge 711 Third Avenue, New York, NY 10017 and by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN

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Routledge is an imprint of the Taylor & Francis Group, an informa business © 2015 Taylor & Francis The right of Richard L. Pacelle, Jr. to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging-in-Publication Data Pacelle, Richard L., 1954– author. The Supreme Court in a separation of powers system : the nation’s balance wheel / Richard Pacelle. pages cm 1. United States. Supreme Court. 2. Political questions and judicial power—United States. 3. Judicial process—United States. 4. Separation of powers—United States. I. Title. KF8748.P238 2015 347.73′262—dc23 2014031931 ISBN: 978-0-415-89429-6 (hbk) ISBN: 978-0-415-89430-2 (pbk) ISBN: 978-0-203-80678-4 (ebk) Typeset in Sabon by Apex CoVantage, LLC

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The Nation’s Balance Wheel Richard L. Pacelle, Jr.

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To My Former Colleagues in Statesboro Sic semper tyrannis

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Contents

List of Figures List of Tables Acknowledgements Introduction: Recalculating: Getting to the Supreme Court with a GPS

x xi xii

1

Acquiring Satellites 2 Research Design 3 In .2 Miles, Prepare to Turn Right 6 1

The Supreme Court: The Nation’s Balance Wheel?

8

The Design of the Framers and the New Normal 12 Understanding Decision Making by the Supreme Court 15 Making Public Policy and Protecting Legitimacy 16 A First Test of the Decision-Making Model 21 A Quick Look Ahead 24 Conclusion 25 Appendix to Chapter 1 28 2

The Supreme Court and the President: An “Informal and Limited Alliance” “He Shall Nominate . . .” 33 “He Shall Take Care That the Laws Be Faithfully Executed” 38 “To Supervise and Conduct Government Litigation” 40 “An Informal and Limited Alliance” 43 1.81 Miles, But Sometimes It Seems Much Closer 45 The Umpire Strikes Back 50 Conclusion 53 Appendix to Chapter 2 56

31

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Contents The Supreme Court and Congress: The First Shall Be Last, Will the Last Be First?

59

Congress and the Supreme Court 62 The Panoply of Checks 64 The View from Capitol Hill 71 The House and the Senate 78 What? We Worry? 79 Conclusion 81 Appendix to Chapter 3 84 4

The Supreme Court and the Bureaucracy: The Clash of Kafkaesque Forces?

90

The Bureaucracy: Perception and Reality 95 The Courts and the Bureaucracy: The Real Powers? 97 Politics and the Bureaucracy 98 The Making of the Modern Supreme Court and the Implications for the Bureaucracy 100 The Evolution of Administrative Law 103 Who’s the Boss? Congress or the President? 105 The Third Way? Judicial Control of the Bureaucracy 107 Models of Bureaucratic Behavior 108 The Shifting Standards of Review 110 The Role of the Solicitor General 114 After the Decision: The Bureaucratic Response 119 Conclusion 122 Appendix to Chapter 4 125 5

The Supreme Court and Public Opinion: The Two Faces of Janus The Public and the Temple 134 Should the Court Pay Attention to the Public? 136 To Not Know the Supreme Court Is to Love the Supreme Court: Specific and Diffuse Support 138 The Gravitational Pull of the Ruling Majority 144 Looking for Janus (the Retrospective Face) 147 The Supreme Court Cares About the Elites, Not About You 151 The New School of Athens and the Second Face of Janus 155 Conclusion 159 Appendix to Chapter 5 163

129

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“Lobbying” the Judicial Branch: May it Please the Court?

ix 167

Because That’s Where They Make the Policy 172 Interest Groups, Pluralism, and Political Litigation 173 Parting the Curtains and Opening the Door: The Dance of Litigation 178 Why Do You Think They Call Them “The Haves”? 186 The Special Case of the Solicitor General: The Ultimate Repeat Player 189 Jenga!!! 195 Conclusion 199 Appendix to Chapter 6 204 7

The Supreme Court and the Lower Courts: A Bureaucracy to Call Your Own

210

The Circle of Law 214 If the Courts of Appeals Make a Decision and No One Is Listening, It Still Makes a Sound 216 Of Principles and Principals: There Is No “I” in Team, But There Is “Me” 217 “What Am I? A Potted Plant” 222 It’s 3:00 A.M. and No One Is Around 226 Up the Down Staircase 227 Issue Framing and Setting the Agenda 231 Lower Courts: The Interpreting Population 235 The Conditions for Faithful Interpretation and Implementation 237 Holding the Line 241 Lead, Follow, or Get Out of the Way 242 Conclusion 244 Appendix to Chapter 7 247 8

Conclusion

252

Managing the Court’s Environment 255 I Knew I Forgot Something: Where’s the Law? 257 The Delicate Balance 259 A Quick Trip Through the Modern Court 262 Opening Farewell 264 Cases Cited Bibliography Subject Index Name Index

265 267 299 305

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Figures

4.1 5.1 6.1 7.1

Success of the Solicitor General on the Merits, 1953–2007 Public Support for the U.S. Supreme Court, 1971–2012 Percentage of Supreme Court Decisions with Amicus Activity, 1946–2012 The Decline of the Supreme Court’s Docket: Signed Opinions, 1946–2013

115 139 175 232

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Tables

I.1 1.1 1.2

Model of Supreme Court Decision Making The Supreme Courts Identified by Chief Justices The Influence of Political and Legal Factors on Supreme Court Decision Making, 1953–2007: Civil Liberties and Economic Cases 2.1 Presidential Appointments Since Earl Warren and Their Influence on the Supreme Court 2.2 The Influence of Political and Legal Factors on Supreme Court Decision Making, 1953–2007: Civil Liberties and Civil Rights 3.1 The Exercise of Judicial Review over Congress by Court: Number of Acts of Congress Declared Unconstitutional 3.2 The Effects of Court-Stripping Legislation on Constitutional vs. Statutory Decisions, 1953–2000 4.1 The Influence of Political and Legal Factors on Supreme Court Decision Making, 1953–2007: Economic Regulation 5.1 The Influence of Political and Legal Factors on Supreme Court Decision Making, 1953–2007: Constitutional Cases 6.1.1 The Influence of the Solicitor General on Supreme Court Decision Making Part I 6.1.2 The Influence of the Solicitor General on Supreme Court Decision Making Part II 7.1 The Influence of Attitudinal, Strategic, and Legal Factors in Constitutional Civil Liberties and Statutory Economic Cases

3 13

29 35

57 80 86

126

164 205 208

248

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Acknowledgements

Any project of this length requires the assistance, patience, and support of a number of people. And invariably, I will forget a couple. Although these lapses may largely be a function of the length of time it took me to finish the manuscript, I will blame it on my advancing age. It is true that I was much younger when I started the project. I am certainly pleased to share any credit the book merits with all the people who helped. I wish they would share the blame for any problems, but sadly I have to take responsibility for the shortcomings. I promised Michael Kerns, the Political Science editor, that I would not thank him for his patience with me. Apparently that is the kiss of death for an editor. So, I will simply thank him for his support at all stages of the process. I want to thank Darcy Bullock, Colleen Roache, and Lillian Rand for all of their help. I do not know what it says about me or the project that I ran through three editorial assistants. I owe a huge debt of gratitude to Denise Power across the pond. She kindly endured my odd questions. I do not want to know how often I brought her to tears of frustration. I was shocked to discover that I was assigned the highly decorated Harbour Fraser Hodder as copy editor. In the immortal words of Wayne and Garth, “I am not worthy.” If she ever offers you “a few dollars,” by all means take it. She sent me the edits claiming there were “a few queries.” A “few” apparently translates to 60 single-spaced pages. Although I might have been tempted to curse her excellence, honesty compels me to admit that the final product is much better for her careful attention to detail. She was thorough and meticulous (and I hope I spelled that correctly). I had able research assistance from Whitney Baker and Amber Montrose. They were instrumental in helping me prepare the manuscript. Roxanne Sullivan, Sue Howerton, and Laura Cosey make my life easier in too many ways to count. I owe tremendous debts to a number of people, no one more than Larry Baum. He has had a profound impact on my development as a scholar and as a person, regardless of what you read in the subsequent chapters. Lee Epstein has been supportive for going on 30 years now. A number of the best and the brightest in the public law subfield have offered advice and encouragement along the way. Drew Noble Lanier

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Acknowledgements

xiii

and Paul Collins were helpful in answering questions in their areas of expertise. My work with Barry Pyle and Marc Hendershot has helped to sharpen my thinking about a number of issues. My collaborations with Bryan Marshall and Brett Curry have shaped my ideas about the relationships between the branches (particularly in Chapter 3). Patrick Wohlfarth provided me with some interesting insights. Kevin McGuire, Paul Wahlbeck, Wendy Martinek, Brandon Bartels, Bob Howard, Mark Hurwitz, Ryan Owens, and my new colleague, John Scheb all contributed in ways they will recognize and in ways they may not realize. I also want to thank the three anonymous reviewers who made significant contributions to the final product. I am sure they will recognize their fingerprints. I want to thank my friends from the “Board Horde”: Linwood Russell, Dave Pagni, Rolf Wulfsberg, Sal Vitagliano, Joe Pullaro, Irving Matchen, Jim Boyle, Shannon Murphy, Gordon Hill, Skip Sharples (who’ll always be mom to me), John Cheeseman, Donald Tyree, John Betts, Hector Rodriguez, Captain Joseph Hawley, Joe Iacoviello, and, of course, Peg Dillon. We have celebrated a great deal over the last two years and look forward to some more revelry in the future. They have taken me from my work far too often, and for that I am grateful. I know that while my move to Tennessee has them worried, they will constantly remind me of my roots. I also wish to thank my partners in crime from the Italian job: Professors Tom Keene, Stephen Bartlett, Edward Eanes, Todd Harper, and Howard Sheeley. They have been a pleasure to work with, and hopefully we have a few more heists in us. My colleagues in Italy have taught me so much, and their influence can be seen throughout. Special ciaos to Emily Gomez, Ernesto Gomez, Letizia Guglielmo, Lissa Leege, Cindy Bowers, Jane Keene, Margie Bright Ragland, Chris Geer, Allan LeBaron, and Dennis Loubiere. I would be remiss if I did not mention the support my family unfailingly gives me. Let me start with my “brother,” “Special” Ed Mongillo. He is simply the best. He has taught me more than all the books and classes combined. I want to thank my parents, Pat and Dick, who raised three wonderful children and me. Fortunately, they ultimately got it right. My sisters, Kim and Wendy, educate children until the age of 11. My father took over in high school, and then I got them. My brother, Wayne, educates everyone about animals. And my sister-in-law, Lisa Fletcher, educates the world about current events. One stepson, Craig, is a Professor of History of Science. And his wonderful wife, Chiara, is an anthropologist and helps educate us about Ancient Rome and Italia. My other stepson, Russell, helped educate the disabled. He educated everyone he met about kindness, compassion, and selflessness. He left us too soon, and I miss him terribly. I am only devoting a brief paragraph to my wife Fenton. Everyone who has ever had even the slightest contact with her knows that is not enough to capture her. I could not, in the length of this book and an additional five volumes, properly express my gratitude to her. She has

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Acknowledgements

an indomitable spirit, and I can count the times on one hand that I have seen her without a broad smile on her face. In addition to being the most perfect partner, she is a published librarian, and I confess to having used her expertise on numerous occasions and with this book (she did the index). I can never adequately express my gratitude to her for making every facet of my life better. I dedicate this book to my former colleagues at Georgia Southern University who could not have been more supportive of me during and after my tenure as chair of the department. When the University reinstated sabbaticals, my colleagues unanimously chose me as the first person to receive a leave. They contributed to any merits that this book has. I want to single out my chair, Barry Balleck, Lois Duke Whitaker, Debra Sabia, Steve Engel, Brett Curry, Rob Pirro, Patrick Novotny, Jamie Scalera, Nathan Grasse, Darin Van Tassel, Bryan Miller, Cathy Marcum, Michele Covington, Jacek Lubecki, Saba Jallow, Bekki Davis, Laurie Gould, Adam Bossler, and my past and current colleague, Krista Wiegand. I also want to thank prospectively (and retrospectively) my new colleagues in Knoxville. Thanks for your support and patience as I put the finishing touches on this study. Finally, I want to thank the numerous students who have come through my public law classes (particularly those who stayed awake). They often asked good questions that helped me sharpen my thinking and made me do research so I could desperately try to stay one step ahead of them.

Introduction

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Recalculating: Getting to the Supreme Court with a GPS

This book examines the role that the modern Supreme Court plays in American politics. I want to understand how the Supreme Court makes its decisions and what influences those decisions. On the one hand, I can simply examine the process. The Supreme Court gets 10,000 petitions and accepts fewer than a hundred cases in recent terms. Justices hear oral arguments, deliberate, and collectively decide who wins and who loses and why. But that information only takes us so far. Rather, I want to understand what factors influence the Supreme Court when it makes its decisions. Is the Court free to make whatever choices a majority of its members want, or are there constraints that limit its options? The key to this study is to place the Court in its environment. The judicial branch lacks “the sword and the purse.” Courts cannot enforce their own decisions or force the executive and legislative branches to support those decisions. This is not to say that the Court is at the mercy of its institutional rivals. It has some resources, and there is a significant symbolic aura that surrounds the Supreme Court. Chapter 1 establishes the theoretical premises for the book, but at this juncture, I want to explain how this book is a little different from others and lay out a map. In the chapters that follow, I will look at how the United States Supreme Court interacts with the president and Congress, the federal bureaucracy, the lower courts, and public opinion. There are a variety of routes that one can take to understand the modern Supreme Court. I could synthesize the original research of others and organize and distill it, which I have tried to do. An alternative route would be to introduce my own research to help understand Supreme Court decision making. That path appeals to me. So I have tried to take both routes, and I will let you use your GPS to decide which path you would like to follow. Each one of the main chapters will take you along the highway, the most direct route. That route will examine the key research questions and the particular relationship between the Supreme Court and the subject of that chapter, whether it is the president, Congress, public opinion, or one of the other factors. I will also discuss the existing research in each of these areas, as well as hit the brief highlights of my findings. At the

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end of each chapter (except the last one), will be the more scenic route through the back roads. This route will take a little longer and might be a bit bumpier. In the appendices to each chapter, I provide the tables with the results of my research and a more extended discussion of those results. I hope you visit and take a detour or two to look at the tables and the extended discussion. I have tried to keep the discussion of the results accessible even if you do not have any sophisticated methodological background. I will start with the traditional relationships between the three branches of government that were birthed in the Constitution (Chapters 1, 2, and 3). In the text, I will be discussing the relationship between the modern Supreme Court and the elected branches. Then I will be examining the empirical dimensions of the relationship by developing and testing a model of decision making. I will discuss how the checks that the president and Congress have over the Court might influence decision making. And then we will examine whether the practical realities reflect the theoretical constraints. Before we leave the separation of powers and checks and balances, I will examine the relationship between the federal bureaucracy and the Supreme Court (Chapter 4). Once I leave separation of powers and checks and balances, I examine some other factors that might influence Supreme Court decision making. Two chapters will involve different facets of public opinion: Chapter 5 will examine the dimensions of mass public opinion, and Chapter 6 will involve elite behavior, a special segment of public opinion—organized political litigants. In each of those chapters, I will adapt my decisionmaking models to examine the assumptions. Finally, I will analyze the federal courts from a vertical perspective, examining how the Supreme Court interacts with the lower federal courts (Chapter 7). In that context, we will see that messages move in both directions: they climb up the hierarchy to the Supreme Court and down to the lower courts. A final decision-making model will examine elements of the linkages between the Supreme Court and the lower federal courts and bring some evidence to bear in understanding these relationships.

Acquiring Satellites In this section, I discuss the general Supreme Court decision-making model that I will be using throughout the book and the variables that I use to test the models. In each chapter, I examine the theoretical relationship between the Supreme Court and the subject of that chapter. Then, I adapt the decision-making model to highlight each of the relationships between the Court and these other factors. In the main body of each chapter, I will briefly explain the results, leaving the more complete discussion for the appendix. So, you have your first choice. You have come to the first fork in the road—and if you follow Yogi Berra’s purported advice, when you

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Table I.1 Model of Supreme Court Decision Making Dependent Variable: Decision of the U.S. Supreme Court

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Independent Variables: Ideology of the U.S. Supreme Court (Attitudinal Variable) Ideology of the President (Strategic Variable) Ideology of the House of Representatives (Strategic Variable) Ideology of the Senate (Strategic Variable) Public Mood (Strategic Variable) Precedent in that Area of Law (Legal Variable) Issue Evolution (Legal Variable)

come to the fork in the road, take it. You can turn the page now and start Chapter 1, or you can keep going straight and look at how I build the models that are in the appendix at the end of each chapter. In each model throughout the book, I am attempting to understand and explain Supreme Court decision making. So what are the factors that contribute to the Court’s decision? I argue that the Court’s decision is a function of the ideology of the justices of the Court (this is the attitudinal variable, and it is designed to represent how liberal or conservative the Court is); the ideology of the president and both houses of Congress, and public opinion (these are the strategic variables); as well as legal precedent in that area and the difficulty of the facts of the individual cases (legal variables). In Chapter 1, I will explain why I think these factors are important. But in the next section, I explain the measures that I use for each of these factors. Table I.1 is a brief guide to the main variables I am using throughout the book. The next section describes what measures I am using to approximate those variables.

Research Design To animate this study, I develop a model of Supreme Court decision making that I will refer to throughout the book and refine in each chapter. The goal is to understand and explain the decisions of the modern Supreme Court since Brown v. Board of Education (1954). I use all the economic and civil liberties and rights cases that were decided by a full opinion by the Supreme Court in the 1953–2007 period. This yields a total of 4,962 cases. The dependent variable is the decision of the Court, coded as liberal or conservative.1 I start with the idea that the decisions of the Court are a function of attitudinal, strategic, and legal factors. The key then is to find variables to represent each of those factors.

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The attitudinal variable is designed to represent the ideology of the Supreme Court. It is measured as the ideological position of the median justice. The median, or the fifth, justice is the vote that the litigants need to get in order to win the case (see Justice Brennan’s “rule of five” in Chapter 1). The more conservative the median justice is, the more conservative the Court’s decisions should be, controlling for the other variables (but see Lauderdale and Clark 2012). The inclusion of strategic variables is meant to represent the influence of separation of powers. The variables need to capture the relative ideology of the House of Representatives, the Senate, and the president. If the Court is wary of spending its finite resources or antagonizing the other branches, then it may temper its decisions. If the Supreme Court makes a decision that brings public rebuke from Congress or the president (or worse), the judiciary stands to lose public support and some of its legitimacy. Thus, the Court may proceed carefully to make sure that it does not antagonize the other branches and retains the respect of the public. To examine this, I need proxy measures for each house of Congress and for the president. The Common Space measures created by Epstein, Martin, Segal, and Westerland (2007) provide the values for the Court, president, and both houses of Congress. The Common Space measures are based on the Poole and Rosenthal (1997) W-Nominate technique originally created to measure the ideological scores for Congress and the president.2 The Poole and Rosenthal measure is based on the median member of the House and Senate, and the Common Space measure is based on the median justice. Thus, the Common Space scores provide a metric to allow comparisons of ideology across institutions.3 It is important to account for legal factors also, such as existing precedent. As a proxy for this legal factor, I code the direction of the most important precedents cited in the syllabus of the case. Precedent is measured as the key previous case that the current decision is based upon. It is coded ideologically as being liberal (1) or conservative (–1). If there is no existing precedent for a particular case then it is coded as 0. The syllabus must be approved by the author of the majority opinion before the opinion can be released. Thus, Benesh and Spaeth (2001) argue that to cite a given opinion in the syllabus means that the opinion rests on or makes great use of the precedent in that case and, therefore, that controlling case is salient to the author and arguably to all of the justices in the majority opinion coalition.4 If the Court followed the previous decision, it is coded as consistent with the existing precedent (the same ideological direction). If the Court distinguished the case from the existing precedent or overturned that precedent, it is not following stare decisis (and is in the opposite direction).5 For example, in an attempt to circumvent Brown v. Board of Education (coded 1 as a pro-civil rights precedent), southern states tried freedom of choice plans and closing the public schools. The Court,

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adhering to the Brown precedent, struck these state laws down (those cases coded as 1 also). The inclusion of this variable permits us to examine the decision in the instant case as a function of the direction of the precedent. If precedent is important, the Court should be constrained in its decision making. The variable is expected to be significant and positively related to the decision, controlling for the other variables. Thus, when the precedent is conservative, the decision of the Court in the next case is expected to be conservative, controlling for the other variables. Not all cases are created equal. The cases that get to the Supreme Court tend to be fact-intensive. Sometimes the case is relatively easy to decide because the facts show clear violations of the law or of an individual’s rights. Other cases are cast in various shades of gray with facts that do not lend themselves to a clear decision. To examine issue evolution, I use a measure that traces the development of an issue from its emergence, through the creation of the landmark decision that defines the particular issue area, through second-generation cases that raise more difficult questions in a unidimensional issue space, and finally through the “complex” stage when the specific issue may get tied to other issues, thus leaving the unidimensional space (Pacelle 2003; 2009; Ulmer 1982; Wasby 1993; Pacelle, Marshall, and Curry 2007; Schauer 1985). Previous studies (Schubert 1965; Kort 1957) incorporated the difficulty of the case into their models. Segal (1986) argued that the variation in case facts helped explain the variation in decision patterns (see also Segal and Spaeth 2002). The notion of issue evolution reflects the need to distinguish between cases. The measure combines aspects of precedent and case difficulty. It combines elements of the concepts of policy change developed by Wahlbeck (1997), the jurisprudential regimes of Richards and Kritzer (2002; Kritzer and Richards 2003; 2005), and minimalism and maximalism designed by Sunstein (1999). A jurisprudential regime is defined as “a key precedent, or a set of related precedents, that structures the way in which the Supreme Court justices evaluate key elements of cases in arriving at decisions in a particular legal area” (Richards and Kritzer 2002, 308). Jurisprudential regimes then highlight the relevant facts that justices consider when deciding a case. But whereas the measures of case facts and jurisprudential regimes are confined to a single issue like free speech (Richards and Kritzer 2002), freedom of religion (Ignagni 1993; 1994), or search and seizure (Segal 1984; Kritzer and Richards 2005), the issue evolution measure has the advantage of permitting comparisons across policy areas. In the first stage, doctrine is unstable as the Court, having little experience with the new issue, tries to find a doctrinal home in an existing area of law. For instance, early free exercise of religion cases led to instability in doctrine, and the Court tried to fit them into free speech doctrine. The

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second stage involves the cases that immediately precede and follow the landmark decision. In establishment litigation, the cases that led to Lemon v. Kurtzman (1971) and helped refine the Court-created test would be part of this stage. This is akin to Sunstein’s notion of “width.” Sunstein (1999, 16–19) argues that decisions have width if they set a standard, are applicable to other cases in the specific issue area, and are governing principles for that area of law. In the third stage, cases get more difficult, causing support to decline. Government aid to religiously affiliated colleges and cases like Wolman v. Walter (1977) forced the Court to balance more difficult forms of public assistance (Pacelle 2009). The fourth stage is marked by a multidimensional issue space. In other words, the original issue is joined to a separate issue. Hate speech cases, for instance, raise issues of free speech and civil rights and challenge the Court to find a doctrinal niche (Walker 1994; Cleary 1994). Issue evolution is expected to be statistically significant and negatively related to liberal decisions. Thus, it will be more difficult for the Court to make a liberal decision as the facts of the case get more difficult. Finally, the decision-making model incorporates a measure of public opinion. I use the Stimson Public Mood measures (Stimson 1991; 2004). This measure incorporates a whole range of public opinion questions over time. The questions tap various dimensions of politics and are aligned across a typical liberal-conservative continuum. Like the Poole and Rosenthal measure, these are widely used, particularly in studies of the impact of public opinion on the courts (Casillas, Enns, and Wohlfarth 2011). The results of each of the Supreme Court decision-making models will be presented in tables in the appendix at the end of each chapter. I am going to use the variables discussed above in every table throughout the book. In a couple of chapters, I will be introducing an additional variable or two. In the appendices to those chapters, I will discuss those additional variables in greater detail.

In .2 Miles, Prepare to Turn Right So, if you got this far, then you took the long way and now it is time to go to Chapter 1. In Chapter 1 and each subsequent chapter, I start with a vignette or example; most are past Supreme Court cases used to illustrate the relationship between the Supreme Court and the subject of that chapter. These provide a practical dimension to structure the subsequent discussion. Each chapter will then discuss the theoretical context of the relationship between the Court and the various factors in its environment. The key is to understand how that specific factor might influence Supreme Court decision making. Then I will propose a model and test it to see if the hypotheses are confirmed. Those models will examine different kinds of cases and try to probe the relationship between the other branches and the Court, public opinion and the Court, and the lower courts and their superior.

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Notes 1. I used the Supreme Court Data Base to identify the cases and used its characterization of the ideological direction of the decision. Because the dependent variable is dichotomous, I used logistic regression to estimate the impact of the independent variables on the decision-making (Long 1997). 2. There are a number of different measures that could have been used for each of these variables. Given some of the issues raised by Bailey (2007), I examined multiple measures. The models, whether using the Segal-Cover (1989) scores (Segal, Epstein, Cameron, and Spaeth 1995), Baum Adjusted Scores (1988; 1992), or Martin and Quinn (2002) for the ideology of the Court, yield comparable results. Similarly, I tried two measures of presidential liberalism— Segal, Timpone, and Howard (2000), and Erikson, MacKuen, and Stimson (2002)—with no significant changes in the coefficients. Thus the results are considered robust. 3. For ease of interpretation, I multiplied the Common Space and Nominate scores by –1 to make them compatible with the other measures that run from –1 (conservative) to +1 (liberal) for variables like precedent, or 0 (conservative) or +1 (liberal) for the dependent variable. 4. The syllabus is a summary of the majority opinion’s holding in the case. Benesh and Spaeth (2001) consider the citation of a case in the syllabus to be a signal of the importance of that case to the majority opinion author. The syllabus is composed by the Reporter of Decisions and a draft is sent to the chambers of the majority opinion author for editing and approval. Benesh and Spaeth (2001) prefer this measure to simply counting cases cited in the majority opinion, because it avoids the problem of string citations and the practice of citing precedent to back up any major argument. They found that the average number of citations in the syllabus of orally argued signed opinions handed down between the 1987 and 1998 terms was 1.30 citations per syllabus (2,062 citations in 1,583 decisions). Counting all cases cited in the opinion, rather than the syllabus, produced far more citations. Thus, they conclude that citing a case in the syllabus is more consequential (Benesh and Spaeth 2001). 5. If there are multiple decisions cited in the syllabus, the precedent variable is coded as following precedent only when the Court claims it is following all of the precedents cited.

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The Supreme Court

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As Senator Barack Obama strode across the stage to deliver the keynote address at the 2004 Democratic National Convention, probably no one in the audience (including Michele) thought they were looking at his party’s 2008 presidential nominee. Even as he left the stage to thunderous applause from the energized conventioneers, it is safe to think that no one seriously entertained the notion that this man would be taking the oath of office as the 44th president of the United States just four and a half years later. Sure, newspapers across the country would call him “presidential timber,” but more for 2012 or 2016 or beyond. Against the odds, Senator Obama secured the 2008 nomination of his party. Affordable comprehensive health care would become a central plank of his campaign platform (Rom 2012). After he took office, the president set out to fulfill this particular campaign promise. The Framers of the Constitution set up an elaborate political structure that makes passing comprehensive legislation of this ilk very difficult. And so-called “Obamacare” was a classic reflection of these problems. After numerous procedural tactics, and in a vote that largely fell along party lines, the Patient Protection and Affordable Care Act passed both houses of Congress and was signed by the president on March 23, 2010 (Sinclair 2012). By the time the act passed, however, public opinion had turned against the plan. The Democrats suffered major losses during the midterm elections in 2010, ceding control of the House of Representatives in the process (Rom 2012). A number of Democrats who supported the health care act were defeated in their bids for reelection. A chastened President Obama told the country that he heard its concerns and suggested he would trim his legislative sails going forward. The emboldened Republicans sought to repeal the act. By the November 2012 election, House Republicans had called for votes to rescind the health care provisions over 30 times. Each time the Senate, narrowly controlled by the Democrats, refused to go along. With the president’s ratings in decline, public opinion split (but narrowly in favor of repeal), and Republicans smelling a return to the White House, a number of states and businesses decided

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to use the courts to challenge the provisions of the Patient Protection and Affordable Care Act. The thesis of this book is that the Supreme Court makes its decisions in a complex, sometimes highly-charged environment that provides some opportunities but is fraught with constraints. The story of the Affordable Care Act decision—known as National Federation of Independent Business v. Sebelius (2012) in Constitutional Law textbooks—is not the narrative of the typical Supreme Court case, but the factors that influenced the justices and helped shape the decision are prevalent more often than they are absent. As is often the case, the factors did not line up simply in one direction. The Supreme Court case assessing the constitutionality of the Affordable Care Act involved the entire array of factors that can affect the judicial branch. As a prelude to a full consideration of all the influences on judicial decision making, let’s examine the dynamics—political and legal, internal and external to the Court—that provided the context for this case and the ultimate decision: the president, Congress, lower courts, public opinion, and the law. For many analysts of the Supreme Court, the most important factor is the sincere policy preferences of the justices (Segal and Spaeth 2002). Five of the justices who would decide the Obamacare case were Republican appointees, and the other four had been nominated by Democrats. While pundits may have disagreed about who would win the case and the ultimate scope of the decision, everyone felt it would be a close vote. Other analysts believe that the Supreme Court’s position at the apex of the judicial system underlines the importance of the law and precedent in determining the outcome of cases (Bailey and Maltzman 2011). The extant precedents on the eve of the oral arguments in the Affordable Care Act case seemed to favor the law. Congress had passed the act pursuant to its authority under the Commerce Clause.1 Most of the Commerce Clause decisions over the past 70 years had favored a broad interpretation of congressional power. Like all issues before the Court, the case would not be argued nor the decision rendered in a vacuum. The decision was birthed against the backdrop of a presidential election. The justices had to understand that the Court’s decision would alter the arc of the election process. This had to be an additional burden or constraint on the Court. Would it give the justices pause in making their decision? Might the Court expand its deference to the elected branches? In a normative sense, the Court is often urged to exercise judicial restraint. That restraint can be manifested in following existing precedent and/or acting strategically by showing deference to the elected branches (Bailey and Maltzman 2011; Pacelle 2002). In defending the creation of the judicial branch, Alexander Hamilton referred to the Court as the “least dangerous branch of government” (Federalist 78). In his view, the Court would need to tread carefully and

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exhibit judicial self-restraint because it would be dependent on the other branches of government for support. The judicial branch had neither the “sword nor the purse” so it would need to rely on the good offices of the elected branches of government. In more modern parlance, there is a normative expectation that the unelected justices will not wantonly cast aside the actions of the elected branches (Pacelle 2002). Some analysts argue that strategic factors, most notably the policy positions of the other branches, influence the Court (Epstein and Knight 1998; Eskridge 1994; Pacelle, Curry, and Marshall 2011). The president supported the act and sent the solicitor general into Court to argue for the merits of sustaining the law. Every study shows the remarkable success of the Office of the Solicitor General in getting its cases accepted and in winning on the merits (Salokar 1992; Ubertaccio 2005; Pacelle 2003; Black and Owens 2012). But by all accounts, in arguing the government’s position in the National Federation of Independent Business v. Sebelius case, Solicitor General Donald Verrilli did not have his best day. He was sharply questioned by the justices, particularly by Justice Anthony Kennedy, the swing vote on the Court, whose support was considered mandatory for whichever side was going to win. Congress passed the act that was being considered, but the election of 2010 had shuffled the alignments so that the House now had a majority opposing the enacted bill. The Senate narrowly supported the measure (Sinclair 2012). Both the president and Congress have some important checks that they can bring to bear in any dispute with the Court. The general thought is that the Court may temper its preferred policy position to avoid a costly clash with the elected branches. If the Court stakes out a position that is antithetical to the other branches of government, the elected branches might overturn that decision or, perhaps worse, punish the Court as an institution (Martin 2006; Pacelle, Curry, and Marshall 2011). The Court’s need to defer to the elected branches, however, was mitigated by two factors. First, the decision was likely going to be based on constitutional grounds. This would largely free the Court from concerns that its ultimate decision would be reversed. It takes an extraordinary majority in both houses of Congress (often in the form of an amendment to the Constitution) to overturn a constitutional decision. Second, the elected branches were not unified in their views of the health care act. The House supported repealing the measure, while the Senate and the president supported it. The bottom line for the justices was that this division was certain to produce at least one ally for the Court regardless of the direction of the decision. One of the major responsibilities of the Supreme Court is to police the federal judicial system. Because cases get shaped in the lower courts before they show up on the Supreme Court’s docket (Steigerwalt 2010; Baum 2013), the decisions of lower courts can have an impact on how the justices view a case. The Supreme Court is more likely to grant certiorari

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when the lower courts have made conflicting decisions in similar cases (Pacelle 1991; Perry 1991). That element was present here. The case that made it to the Supreme Court came from Florida through the Eleventh Circuit. The Eleventh Circuit found the law to be an unconstitutional exercise of the Commerce Clause. The Sixth and the District of Columbia Circuits decided similar cases and each determined that the law passed constitutional muster. The justices of the Supreme Court are not elected by the public. The Framers did this deliberately to insulate the Court from the reach of public opinion. But can the Court really stand in the face of public opinion and deliver decisions that are at odds with the views of a majority of Americans? (McGuire and Stimson 2004; Casillas, Enns, and Wohlfarth 2011; Hall 2011). Some argue that this is the very reason we need a Supreme Court that is unelected (Pacelle 2002). The National Federation of Independent Business case presented the Court with an unusual circumstance: a relatively clear public response was available to the justices. There are two forms of public opinion to consider. First, there is the public opinion directed to the particular issue or policy (in this case, whether citizens supported the health care provision). This is typically referred to as “specific support.” The second form is called “diffuse support,” and it refers to what citizens think of the Court as an institution (Caldeira and Gibson 1992; Gibson and Caldeira 1992; Gibson, Caldeira, and Baird 1998; Bartels and Johnston 2013). On the eve of the Obamacare decision, the Gallup Poll showed Court approval rates at 44 percent (with 36 percent disapproval). Across history, that is considerably more negative than usual. The decision would cost the Court some of its support, causing a drop to a favorability rating of 41 percent (Dugan 2013).2 But as we will see in Chapter 5, the overall long-term “diffuse support” for the Court as an institution remains considerably higher than the specific support attached to particular decisions (Gibson 2007; Gibson and Caldeira 2009). If we take a step back and evaluate the potential influences on the Court, they could easily justify a decision in either direction. Five justices are generally considered conservatives, suggesting a decision striking the law if sincere policy preferences were the rationale for the decision. On the other hand, Chief Justice John Roberts has advocated judicial restraint and deference, and his Court has exhibited less activism in striking down laws of Congress than the previous Rehnquist Court. The Court might show deference to the elected branches and uphold the health care provisions. Precedent generally supported the broad use of the Commerce Clause, so that was another factor supporting the law. The strategic variables, the president and Congress, generally supported upholding the law. But some analysts argue that the Court responds not to the Congress that passed the law but to the sitting Congress (Eskridge 1994). If that is the case then the changes in the House

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and the constant attempts to repeal the law would send a clear message to the Court. In general, the constitutional basis of the case coupled with the occurrence of divided government after the midterm election of 2010 might remove some of these constraints from the calculus. If the Court were to follow public opinion, it would strike the law down. Of course we all know that the Court narrowly upheld the health care law. The decision was considered surprising in one respect: the identity of the key fifth vote. Moderate conservative Anthony Kennedy, who is typically the Court’s swing vote, supported striking the law down. As expected, the four most liberal justices supported the health care law. The three most conservative justices voted to strike the law. Chief Justice Roberts provided the key fifth vote to sustain the law. This seemed to be at odds with his sincere ideological preferences. Roberts’ opinion struck the chord of judicial restraint. It was not the province of the unelected justices to tamper with the policy decisions of the elected branches of government. That was the job of the people through their ballots. Some also posit that the public support for the Court, already at relative ebb, was an important factor in Chief Justice Roberts’ decision to support the act. Roberts may have felt that the Court would lose more specific and diffuse support if it struck down a visible act. When the pundits and political analysts attempted to deconstruct the factors that led to President Obama’s reelection victory, many focused on the Court’s surprising decision to uphold the Affordable Health Care Act. President Obama could thus campaign on his major legislative achievement, which has been referred to as the most important legislation in a generation (Rom 2012, 160). The “law” and judicial restraint seemed to trump the personal preferences at least for one justice and, as a result, for the Court as an institution. The case illustrates that Supreme Court decisions can be very important. They require the justices to balance legal and political considerations. This book examines the environment that the Supreme Court operates in and the complex calculus that justices, as individuals, and the Court, as an institution, undertakes even when it makes a decision in less noteworthy cases, balancing the law, respecting the prerogatives of the other branches, and remaining attuned to the lower courts and public opinion.

The Design of the Framers and the New Normal The Framers of the Constitution constructed a plan for government that would decentralize power. At the national level, the mechanisms were separation of powers and checks and balances. The results were a bit skewed, though. Congress, as befits its position in Article I of the Constitution, was to be the strongest branch of government. The Framers feared an executive branch that was too strong, but they animated the president with some range of power. The judicial branch, however, seemed to be an afterthought.

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If the three branches were not quite co-equal, the judiciary was the least equal, hence the sobriquet “least dangerous branch of government.” It certainly seemed that Congress and the president had all the checks over the Supreme Court, while the Court lacked any significant countervailing authority against its institutional rivals. The main authority of the Court as we now see it, the power of judicial review, was nowhere to be found in the Constitution. There is evidence that the Framers addressed the issue of judicial review and explicitly rejected it (Nelson 2000, 2–4). Rather the Supreme Court would create this power for itself in Marbury v. Madison (1803). If the Supreme Court was the “least dangerous branch of government,” it is clearly no longer so hamstrung. Table 1.1 shows the various Supreme Courts through history. For the most part, we identify a Court by its Chief

Table 1.1 The Supreme Courts Identified by Chief Justices The Least Dangerous Branch John Jay John Rutledge Oliver Ellsworth

1789–1795 1795 1796–1800

The Assertion of Judicial Power John Marshall Roger Brooke Taney

1801–1835 1836–1864

Reconstruction Era Salmon Portland Chase Morrison R. Waite

1864–1873 1874–1888

Laissez Faire Judicial Activism Melville Weston Fuller Edward Douglass White William Howard Taft

1888–1910 1910–1921 1921–1930

The New Deal Court and Aftermath Charles Evans Hughes Harlan Fiske Stone Fred M. Vinson

1930–1941 1941–1946 1946–1953

Constitutional Revolution—Modern Court Earl Warren

1953–1969

Conservative Reaction—New Activism Warren E. Burger William H. Rehnquist John G. Roberts Jr.

1969–1986 1986–2005 2005–present

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Justice. The Jay Court was a weak ancestor of the modern Court. Chief Justice John Marshall breathed life into the institution through decisions like Marbury. The Marshall Court’s landmark decisions in Martin v. Hunter’s Lessee (1816), McCulloch v. Maryland (1819), and Gibbons v. Ogden (1824), helped define federalism and gave renewed power to the central government (Newmyer 2001). The power of the Court was cyclical. Occasionally the Court would ignore its constraints and overstep its bounds and pay a significant cost. The Taney Court’s decision in Dred Scott v. Sanford and the Hughes Court’s running battle with the New Deal and state attempts to combat the Depression have been referred to as self-inflicted wounds for the judiciary. With its decision in Brown v. Board of Education (1954), the modern Court was birthed (Pacelle, Curry, and Marshall 2011). The decision fulfilled a promise that the Court made when it issued the “preferred position” doctrine over a decade earlier. In the wake of a series of decisions declaring major portions of the New Deal unconstitutional, the Court found itself in a precarious position. The judicial war on the New Deal incurred the ire and the wrath of President Franklin D. Roosevelt. In response Roosevelt proposed the “Court Packing Plan.” The Court capitulated and announced its intention to treat economic cases with deference, bowing to the will of the president and Congress. The Court would exercise judicial restraint in these cases. But in redefining its institutional role, the Court would be proactive in dealing with civil liberties and civil rights. When it came to the rights of insular minorities, the Court would opt for judicial activism, thus putting these issues in a preferred position (Pacelle 1991). In the wake of Brown v. Board of Education, the Warren Court launched a constitutional revolution in civil liberties and civil rights (Powe 2000). Despite the claims of various nominees and chief justices, it has been impossible to put the genie back in the bottle. The Court is now effectively a major policy maker, but its decisions do not occur in a vacuum. The Court must rely on the executive branch to implement its directives and on Congress to fund them. Presidents and members of Congress may be buoyed by Court decisions, or they may earn political capital with the voters by treating the judiciary as a whipping boy for unpopular decisions (Murphy 1964; Epstein and Knight 1998; Canon and Johnson 1999; Bamberger 2000). This book examines the constraints and opportunities that help structure decision making by the Supreme Court, as seen in the context of separation of powers. I examine the potential means by which the other branches of government, lower courts, public opinion, and the law influence decision making. In subsequent chapters, I detail the constitutional and practical constraints on the Court. I examine the relationship between the Court and the president, and the Court and Congress. The analysis then considers the influence of the bureaucracy, lower courts, public opinion, and litigants on decision making.

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In studying the U.S. Supreme Court, analysts have attempted to explain how the Court as an institution and the justices as individuals make their decisions. Those explanations tend to fall into three models: the legal, attitudinal, and strategic models. In this book, I will argue that all three contribute to a more complex explanation for judicial decision making.

Understanding Decision Making by the Supreme Court The Supreme Court gets almost 10,000 petitions for its attention every year, almost all arriving as writs of certiorari. The Court has almost complete discretion over this docket, guided by the “rule of four”: if four justices vote to accept a case, the petition is granted. Of these 10,000 petitions, there are many frivolous cases the Court has no problem rejecting. But on the other side of the ledger, it is also clear that there are many more important cases than the Court has the capacity to hear. In keeping with its dual role, the Court accepts some cases to pursue its collective policy designs and others to fulfill its role in settling inconsistencies in the law or the lower courts—and sometimes both its ideological and legal goals at the same time (Perry 1991; Pacelle 1991; Baum 1997; Bailey and Maltzman 2011). Once the Court has granted the writ of certiorari it needs to decide the cases on the merits. How do we understand decision making on the Supreme Court? As noted, the three traditional models of decision making are the legal model, the attitudinal model, and the strategic model. The legal model holds to the primacy of “legitimate” factors like precedent and adherence to neutral principles of decision making. The legal model is premised on the idea that the law matters and the Court strives for consistency and legitimacy in its decisions. By contrast, the attitudinal model argues that the justices are free to act on their own sincere policy preferences. Justices are not constrained by precedent or overly concerned about the other branches; rather they seek to issue policy directives that are consistent with their collective preferences. The strategic model (and I speak generically of a strategic model, though there are many) places the Court in the context of separation of powers and checks and balances. Such models argue that the Court needs to act in a responsible manner and occasionally trim its policy preferences to avoid retaliation from the other branches of government (Pacelle, Curry, and Marshall 2011). Critics refer to the idea that the justices act simply on their ideological preferences without regard to the law or precedent as the “naïve attitudinal model.” Similarly those who talk of the Court as simply a legal institution bending to the law without regard to its members individual preferences are being seduced by the “naïve legal model” (Cross and Nelson 2001). If precedent were inviolate, the law would be stagnant and unchanging. Similarly, if attitudes were the sole factor in decision making, the law would be dynamic and change every time a vacancy on the

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Court was filled (George and Epstein 1992). Further both of the “naïve” models disregard the impact of the other branches of government. If the justices act strictly on the bases of their sincere policy preferences, they would not need to concern themselves with the other branches. If the Court makes its decisions strictly on the basis of the law, then it would not be concerned with the president or Congress. There is merit in each of these individual models. But none of them alone seems sufficient to provide enough of a nuanced view of Supreme Court decision making. An integrative approach, therefore, seems to offer the best understanding of decision making. The Court’s decision making is a complicated function of legal, attitudinal, and strategic factors. In some areas of law, legal factors are bound to be primary. In others, it might be attitudinal factors that are most important. In still other areas, strategic factors may come to the fore. Each of the models of decision making is predicated on notions of how the Supreme Court works and the environment in which it operates. These models reflect the key legal and strategic considerations that confront the Court. In essence, these features provide both opportunities and constraints that powerfully shape the Court’s incentives in making decisions (Pacelle, Curry, and Marshall 2011). The Court is an institution full of paradoxes. It is the highest court of the land and thus charged with imposing stability on the law. On the other hand, the Court is at the center of most controversial issues and in the middle of public policy making. When presidents nominate justices they seek someone who will reflect their views and remain on the bench long after they leave the White House (Epstein and Segal 2005). Justices who are confirmed are at the apex of their profession, and they have lifetime tenure. Thus they are free to act on their sincere policy preferences (Segal and Spaeth 1993). If that is true, then the aggregation of nominations based on the policy predilections of presidents should move the Court ideologically, yet seldom does the Court overturn existing precedents (George and Epstein 1992). The Court is dependent on the other branches to enforce its directives. If it gets too far ahead or behind public opinion, it could lose its only major resource, its legitimacy. The Court also makes a significant effort to standardize the law and introduce consistency to guide lower courts.

Making Public Policy and Protecting Legitimacy So what are the motivations for the justices in decision making? While there are likely many and some are idiosyncratic to individuals, three motives seem prominent for all justices. As members of the highest court, justices want to impose some stability on the law. Second, justices presumably want to see their sincere policy preferences read into the law through the decisions they help craft. At the same time, justices want to

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see respect for the Court (what I will refer to as its “institutional legitimacy”) remain high and beyond reproach (Baum 1997). Justices adhere to what Gerhardt (2008) calls a “Golden Rule of Precedent”: Justices need to respect other precedents so that when their views prevail and become precedent other justices will respect their decisions. In other words, justices treat others’ precedents as they would like their own to be treated. Similarly, they must protect the legitimacy of the institution. If justices are able to attain their policy goals but the Court has no respect from the other branches or the citizens, then those goals are less viable or may be threatened. The justices not only want to assert their individual preferences, but also need to protect their institution. Reckless disregard for the Court’s institutional authority can undermine the platform for the individual policy goals. Thus, these three motivations are not mutually exclusive, and none of the three can really operate alone. Before proceeding let me be perfectly clear: there are other factors that drive justices. Lawrence Baum (2006, 2) argues that judges of all stripes and rank are interested in communicating with and having influence on a number of different audiences. Having reached the pinnacle of the judicial hierarchy and their careers, justices may be interested in the audiences that include the legal profession, law reviews, other judges, the public, and the media (Baum 2006). For a variety of reasons, including legitimacy, judges may also be concerned with the audience comprised of members of the other branches of government (Davis 2011). But those other factors ultimately rest on the three primary motivations: legal consistency, sincere policy preferences, and protecting the Court as an institution. The three models of decision making are based on trying to maximize at least one of three different motivations, though each model is dependent on all three of the motivations. By definition, the attitudinal model focuses on the policy preferences of the justices. Justices will make decisions that lie closest to their sincere preferences. But while the attitudinal model elevates the preferences of the justices, they in turn depend on the respect for the institution and norms like precedent. Similarly, the strategic models are based on policy preferences. The strategic model argues that the justices will try to achieve a position that is as close to their sincere policy preferences without jeopardizing the institution’s legitimacy. Justices want to pursue their sincere policy preferences, but they understand that the other branches of government might retaliate, so they moderate their decisions to avoid retaliation. The legal model, on the other hand, elevates fidelity to the law, a type of determinant that is related to legitimacy. The Court follows precedent in order to stabilize the law. The justices may suppress their policy views in order to preserve the Court’s proper role. But the justices also use consistency and fidelity to precedent to protect their decisions. Pursuing one’s sincere policy goals is relatively easy to understand. The justices use the cases to see their policy views read into the law. Presumably

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they were nominated because the president also wanted to see those policy views become part of the law (Abraham 2008). The notion of legitimacy is a bit more difficult. If the Supreme Court oversteps its boundaries, it risks losing its legitimacy. Legitimacy can be defined in a number of ways. Most simply, it refers to the authority of the institution (in this case, the Supreme Court). Legitimacy is a characteristic of a political institution whereby it has both a legal and a perceived right to make binding decisions. Legitimacy helps form a basis of power when it conforms to its established procedures (Shafritz 1992, 334). As Morris Zelditch puts it, “Something is legitimate if it is in accord with the [accepted] norms, values, beliefs, practices, and procedures” (2001, 33). Because legitimacy means having the approval of others, it is the condition of being believed to be correctly fulfilling one’s perceived roles (Lawson 1993, 41). Legitimacy is tied into notions of power, but it also places constraints on an institution. Legitimacy is typically tied to concepts of social order and stability. The misuse or reckless use of power will diminish legitimacy (Zelditch 2001). In short, political legitimacy means having widespread approval for the way one exercises political power. This begs the question, then: Should the Court be a central actor in making public policy, or should it act at the margins, filling in the details? Should the Court exercise judicial activism and under what conditions? The answers to these questions are tied to notions of legitimacy. According to Christopher Smith (1997, 290), “The legitimacy issue underlying judicial policy making rests on the appropriateness of the judiciary’s actions in formulating and implementing public policies.” Legitimacy is a political resource. It is fragile and finite, and the Court must conserve and protect it. If the Court oversteps its boundaries, its decisions will not earn the respect of the public or the other branches and its ultimate resource, its legitimacy, would be threatened. It is often argued that the Court risks its legitimacy if the justices are too aggressive in their policy making. On the other hand, it may also be true that the Court can lose legitimacy by doing too little (Pacelle 2002). The legitimacy of the Court is its most important resource. As long as the Court is perceived to be fulfilling its role, it will retain its authority. This resource is precious coin and decidedly finite. The risk is that the Court will overstep its boundaries. The Court has been on the threshold several times and paid for its aggressiveness on a few occasions. In the wake of the Dred Scott (1857) decision and in its opposition to the New Deal, the Court suffered what some have called “self-inflicted wounds” that took a heavy toll on its finite legitimacy (McCloskey 1960). But the passions of the moment pass and the Court typically recovers (Gibson and Caldeira 2009). The Court has usually enjoyed enough respect historically and has enough allies to cushion its descent. The general perception is that the less the Court exercises its power, the more it will protect its precious legitimacy. Ordinarily, this devolves to a

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discussion of judicial activism versus judicial restraint. Judicial restraint stands for the proposition that the Court will confine the use and extent of its power. Proponents of judicial restraint might support this because they recognize the weakness of the Court as an institution or because the justices are unelected and the other branches should be the central policy makers (Bailey and Maltzman 2011). The judicial activist does not worry about such constraints. The judicial activist is willing to use the Court to advance his/her policy goals (Wolfe 1997). When most analysts discuss activism and restraint, it is as a function of the exercise of judicial review. The power of the Court to strike down acts of Congress or the president is decidedly counter-majoritarian. It permits the Court to strike down legislation that has passed both houses of Congress and was signed by the president. Thus, the Court substitutes its judgment for that of the elected branches of government. Exercising such power is the classic definition of judicial activism. By upholding the Affordable Care Act, the Roberts Court exercised judicial restraint. But activism and restraint involve more than the exercise of judicial review. There is another component of the activism/restraint dichotomy that is internal to the Court. The Court’s penchant or willingness to overturn existing precedent demonstrates the relative activism of the Court (Pacelle 2002). Upholding precedent keeps the law stable and predictable. Despite the increasingly conservative bent of Chief Justice Rehnquist’s Court, he authored the majority opinion that declined the opportunity to overturn Miranda v. Arizona (1966). In his opinion in Dickerson v. United States (2000), Rehnquist wrote that the law was settled and citizens knew these rights. As much as the majority may have been displeased with Miranda, the Court exercised restraint in upholding it (I will revisit this case in the last chapter). An additional dimension to activism and restraint considers the scope of the decisions. When the Court decides its case, it issues an opinion that reflects the collective judgment of the majority. That decision can be narrowly focused, concentrating on the parties to the case and having limited applicability to future cases. By contrast, the decision and the remedies the Court recommends can be sweeping and meant to apply to whole classes of individuals or groups (Pacelle 2002; Horowitz 1977). To combat the painfully slow progress on school desegregation in the South, the Court mandated busing, a sweeping controversial remedy. When desegregation came to the North, however, the Court was more circumspect and restrained with its remedies, refusing multidistrict busing between Detroit and the suburbs (Baugh 2011). Finally, an activist Court will be more likely to expand constitutional provisions or read additional rights into the Constitution. The Court’s decision in Wickhard v. Filburn (1942) expanded the Commerce Clause beyond any previous boundaries (Leuchtenburg 1995, 232). Perhaps the textbook example of this type of judicial activism is the Court’s creation

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of the right to privacy out of the shadows and penumbras of the First, Third, Fourth, Fifth, and Ninth Amendments in Griswold v. Connecticut (1965). The Court doubled down less than a decade later in Roe v. Wade (1973), when reproductive rights were based on this created right to privacy (Johnson 2004; Hull and Hoffer 2010). Those of you who follow politics or study the judicial branch know that “judicial activism” is the functional equivalent of a four-letter word. I thought that I might have to spell it like this: “judicial ac@#&ism”; or put a sticker on the cover of the book that says this is “for mature audiences only.” Judicial restraint is supposed to be the normative ideal: the way that justices and the Court, as a collectivity, are supposed to act (Sunstein 1999; but see Peretti 1999). Opponents of a nominee for the Supreme Court will undoubtedly label the prospective justice “a judicial activist.” But it is important to note that judicial activism and restraint is a false dichotomy. Decisions, justices, and courts are seldom either one or the other. This book is concerned with the modern Supreme Court that was born with Brown v. Board of Education. Since then, each of the courts, as defined by their chief justice, has been on the activist side of the continuum. The Warren Court tore up precedents and created new constitutional protections (Powe 2000; Newton 2006). The Burger Court was responsible for some of the broadest legal remedies (Maltz 2000). The Rehnquist Court was an extensive proponent of judicial review (Keck 2004; Yarbrough 2000; Tushnet 2005). The Roberts Court has tapped the brakes, but it has not become a bastion of restraint (Toobin 2012). Judicial activism is likely to provoke the ire of the other branches. An activist Court is one that overturns the work of the other branches or throws itself into the middle of policy making. Since the Warren Court, that activism has been most evident in civil rights and individual liberties and often resulted in controversial decisions involving freedom of speech and religion, busing, affirmative action, and abortion (Maltz 2000; Keck 2004). The Court’s decisions have invited a variety of responses from the elected branches of government: from threats to pass legislation and introduce constitutional amendments, to measures designed to attack the Court as an institution (Murphy 1964; Powe 2000). There is a curious phenomenon at work that defines the modern Supreme Court and its relations with the other branches of government. The president and Congress decry the frequent use of judicial activism, but at the same time they have enabled the Court to exert its full range of power. The modern Court has claimed the authority to determine the meaning of the Constitution. Keith Whittington (2007, ix) refers to this as “judicial supremacy.” He argues that “Judicial supremacy largely consists of the ability of the Supreme Court to erase the distinction between its own opinions interpreting the Constitution and the actual Constitution itself” (Whittington 2007, xi). Most recent presidents have been willing to support or at least not resist such judicial claims. Congress,

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for its part, has a collective action problem; it is hard for the institution to oppose the judiciary in any systematic way (Fisher 2000). Members of Congress can let the Court make the difficult policy decisions and then campaign against it (Bamberger 2000). In the next two chapters, we will examine the relationship between the Court and the president and between the Court and Congress. Before I turn to the discussion of checks and balances, the impact of lower courts, and public opinion, I want to develop and test a model (see Table 1.2) designed to assess systematically the impact of various factors, such as the ideology of the justices, the policy positions of the other branches, precedent, and public opinion, on the Supreme Court’s decision making since Brown v. Board of Education (1953–2007). In the subsequent chapters, I will refine this decision-making model to reflect the factors that I am analyzing, discuss the results, and try to determine why certain factors were important and others were less so and the conditions that influence decision making in different ways.

A First Test of the Decision-Making Model Most studies of the Supreme Court look at the decision making of individual justices. I take a different perspective. I am interested in the collective action of the decisions of the individual justices that then represents the position of the Court. Any justice who wants to see his/her policy goals read into the law will understand what Justice William Brennan called the “rule of five.” To win the case, there needs to be five votes. Ultimately, the collective judgment of the majority is reflected in the opinion of the Court. That opinion is the law of the land and is vertical and horizontal precedent for all similar cases. In other words, such a precedent is binding on the Supreme Court (horizontal) as well as all of the lower courts (vertical). Chief justices assign the opinion of the Court when they are in the majority and are strategic in delegating this task (Maltzman and Wahlbeck 2005; Slotnick 1979; Rohde 1972). All things being equal, the chief justice will want the majority opinion to reflect his/her views as closely as possible while keeping the majority intact. Studies also show there is a great deal of strategic decision-making by individual justices who seek to include or exclude certain language in the opinion (Epstein and Knight 1998; Maltzman, Spriggs, and Wahlbeck 2000; Hammond, Bonneau, and Sheehan 2005). They can bargain with the threat to change their vote or to write a separate opinion. A justice can stick to voting with his/her conscience, but that individual runs the risk of being marginalized. During his time as an associate justice William Rehnquist was called the “Lone Ranger” because he frequently dissented alone. By doing so, he made the choice of foregoing the opportunity to use his vote to bargain on language. When President Ronald Reagan promoted him to chief justice,

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Rehnquist could not initially break his old habits. As a result, Justice Brennan, who was much more liberal than Rehnquist, was often able to forge a majority, and as the most senior member of the majority, assign the opinions that would create precedent (Irons 1994). This study examines the various constraints on Supreme Court decision making and, by implication, the opportunities for the Court to act on its collective prerogatives. As a prelude to an extended discussion of the relationship between the Supreme Court and the other branches of government and the influence of the law, let’s begin with a preliminary analysis of the impact of these factors on judicial decision making. I start with a series of factors or variables from the legal, attitudinal, and strategic models. In this initial integrative decision-making model, I examine the influence of the ideological positions of the Supreme Court (attitudinal variable), president, House, and Senate (strategic variables), as well as precedent and issue evolution (legal variables), and public opinion on Supreme Court decision making since the 1953 term (during which the Court decided Brown v. Board of Education). There are good reasons to give credence to the view that justices often vote on their sincere policy preferences. Theoretically it makes sense: justices have lifetime tenure and have reached the pinnacle of their legal careers; they are free to follow their policy predilections in deciding cases (Segal and Spaeth 1993; 2002). Empirically, it can be shown that many of the justices, particularly those at the ideological poles, are consistent in their decision making. There are, however, a few nagging exceptions. Most notably, in the 1946–2009 period, just under a third of the decisions of the Supreme Court were unanimous (Epstein, Landes, and Posner 2013). If one takes the top-down view instead of a bottoms-up perspective, the picture appears to be very different. The vote of an individual justice is different than the decision of the Court as a collective body. While justices have no apparent constraints on their individual decisions, the institution that was conceived of as “the least dangerous branch of government” still faces some constraints (Pacelle, Curry, and Marshall 2011). The Supreme Court lacks the “sword and the purse.” It is unable to support or implement its own decisions, relying instead on the executive and legislative branches (Canon and Johnson 1999). Thus, strategically, the Court may need to moderate its decisions in order to ensure that its directives will be executed. Ultimately, the Court has a powerful resource to bring to bear: its legitimacy. But that legitimacy is finite. It is precious coin that the Court cannot spend irresponsibly. Thus, the constraints that might be absent for individual justices loom large for the institution. In understanding the Supreme Court, it is imperative to understand the constraints on the institution and how they might influence decision making. How the Court negotiates its way around the obstacles imposed by separation of powers and checks and balances is the subject of this book.

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This is a first look to determine whether the legal, strategic, and attitudinal variables contribute to decision making. It may be that the parsimonious explanations like the attitudinal and legal models explain decision making. For instance, the naïve attitudinal model suggests that only the ideology of the justices influences decision making. The naïve legal model suggests that the law and precedent are the dominant influences on the Court’s decisions. The strategic model takes the view that there are external forces that influence the Court’s decision-making (Vanberg 2001). My expectations are that some components of all three models will contribute to our understanding of how the Supreme Court makes its decisions. This book is predicated on the influence of Congress, the president, the federal bureaucracy, lower courts, and public opinion on the Court’s decisions. The initial results of this integrative decision-making model are shown in Table 1.2 in Appendix 1 at the end of this chapter (along with a fuller explanation of the results). The results demonstrate the complexity of judicial decision making. Each of the variables except one has a statistically significant impact on Supreme Court decision making. Each of the variables except the ideology of the Senate has an influence on the Court’s decisions since the 1953 term. The Court is influenced by attitudinal, strategic, and legal variables. This suggests the complicated nature of decision making, as the Court has to weigh a variety of factors. It is not surprising that the ideological balance of the Supreme Court influences the decisions. The attitudinal variable may not be the only influence on decision making, but it is likely the most important one. Conservative justices make conservative decisions. The strategic variables also have a statistically significant impact on decision making. The president and the House have an impact on the Court’s decisions. In the next two chapters, we will investigate the checks that the elected branches hold over the Court and their apparent influence. The Court also appears to respond to public opinion. The impact is relatively small, but it is positive: the Court’s decisions move in the same direction as public opinion. The relationship between public opinion and the Court is the subject of Chapter 5. Because the Supreme Court has a significant measure of independence and its members have lifetime tenure, the theory is that justices are free to follow their sincere policy preferences in making decisions. Many argue that the Court need not attend to the law in making its decisions. By contrast, some argue that one of the primary roles of the Court and a central norm for the institution is to stabilize the law and create and follow precedent. The initial decision-making model suggests that the modern Court is attentive to precedent when it makes its decisions. In addition, decision making is influenced by the variable of issue evolution, a measure of the difficulty of the case. I hope you will turn to Appendix 1 at the end of this chapter for a fuller and more precise discussion of the results.

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A Quick Look Ahead In subsequent chapters, the focus turns to the relationship between the Supreme Court and the other actors in its environment. We will examine the conditions that constrain the Court and those that provide the justices with the latitude to exercise their sincere policy preferences. We will systematically examine the various conditions under which the Court and the other branches interact. In particular, I examine different sets of cases the Court decides: constitutional versus statutory cases, and civil rights and individual liberties cases versus economic cases. As a result, I am going to tweak the decision-making model to focus on the subject of each individual chapter. This book is an examination of the environment in which the modern Supreme Court operates. Over the next two chapters, we will look at the core of separation of powers and checks and balances: how the Supreme Court interacts with the president and Congress. I will start by examining the constitutional provisions that help define these relationships. But our interest will be in the practical dimensions of the Court’s interactions with the elected branches of government: Should the Court worry about the various checks the elected branches can wield over it? I will refine the general decision-making model and the analysis to determine when and if the influence of the other branches is contingent on certain factors. In subsequent chapters, the focus will shift to other actors in the Supreme Court’s environment. The growth of the national government was an essential feature of the twentieth century. With worldwide wars and economic catastrophe, the United States needed the ability to react to situations in a more coherent and forceful manner. This led to the creation and growth of a modern administrative state. The Court and the executive bureaucracy share two modern traits: each has become very powerful, and each is unelected. Chapter 4 looks at the relationship between the agencies and the Court. Would the Framers ever be surprised! The Framers tried to provide the judiciary with some independence from the other branches and public opinion. How successful were they? In Chapter 5, we will examine the role of public opinion, both specialized and general, on the Court and its influence on public opinion. The Court is a passive institution. It needs to wait for a case to be brought to its docket. Thus, it is important to consider the impact and importance of litigants on the Court and its decision making. That is the subject of Chapter 6. The lower courts play a major role in Supreme Court decision making: they shape the cases before they get to the Supreme Court, and then they need to interpret and apply the standards the high court lays out in its precedents. In Chapter 7, we will explore the Court and its relationship with its own hierarchical bureaucracy.

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Conclusion Robert Houghwout Jackson served as a justice on the U.S. Supreme Court from 1941 to 1954. It was a monumental time in Supreme Court history, bookended by World War II and the internment of Japanese Americans and Brown v. Board of Education. He served on one of the most contentious courts with strong-willed colleagues like Felix Frankfurter, Hugo Black, and William Douglas. They did not play well with others. Jackson is the last appointed justice not to have graduated from law school. His lack of a formal education was apparently not a detriment to a successful career. Jackson served as attorney general and solicitor general of the United States. He was absent for a while from the Supreme Court to serve as the chief prosecutor for the Nuremberg Trials. I could argue that Jackson penned more memorable and colorful prose than any of his colleagues. He is likely one of the most quotable justices. His colleague Felix Frankfurter (1955, 437) wrote: “His speech breaks through the printed page. He was one of those rare men whose spoken word survives in type.” Jackson wrote of the Supreme Court, “We are not final because we are infallible, but we are infallible only because we are final” (Brown v. Allen 334 U.S. 443 at 540, 1953). I chose another of his descriptions of the Supreme Court for the title of this book and the title of this chapter (I hope he did not trademark the phrase). Jackson referred to the Court as the “Nation’s Balance Wheel.” Jackson was in the Roosevelt Administration during the constitutional struggle between the Court and the elected branches. He served in the Justice Department and coordinated the nation’s litigation as solicitor general during the tense period of institutional brinksmanship. He saw the Supreme Court from the closest vantage point outside the Marble Palace and from the inside. Jackson observed judicial activism from the executive branch and then judicial restraint from the high bench. He left his seat at the dawn of the modern Supreme Court. I chose the “Nation’s Balance Wheel” because the Court has to strike a number of delicate balances in its decision making. As Jackson (1955, 3) wrote: “In a society in which rapid changes tend to upset all equilibrium, the Court without exceeding its own limited powers, must strive to maintain the great system of balances upon which our free government is based.” This book is about substantive and procedural balancing. How does the Court balance the factors that influence its decisions when it balances the various concerns in the cases on its docket? The Supreme Court has come a long way from its humble beginnings. The Court has moved since Brown to be the preeminent actor in civil rights and individual liberties. The growth of government and the occasional abdication of the other branches of government has thrust the Court into a role the Framers would never have envisioned. At times,

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the Court has openly embraced its new judicial activism. Congress and the president have either been willing participants in the expansion of judicial power or have silently acceded to the Court’s policy making. The rise of this judicial supremacy does place the Court at some risk. Its occasional overreach can invite retaliation from the other branches of government. The more active the Court becomes the more it risks spending its finite legitimacy. The Supreme Court is surrounded by an aura that has often insulated the institution from its rivals and negative public opinion. The trappings of the institution provide a quasi-religious attribute. The Court’s home is considered a temple. The justices wear robes and are asked to interpret their bible, the Constitution (Whittington 2007). The symbols of the judicial branch, including the statue of the goddess Themis blindfolded and holding the scales of justice, provide the impression of a Court above politics (Gibson and Caldeira 2009). But those symbols seem at odds with the political science notions that justices are legislators in robes who simply and aggressively pursue their policy goals through the cases they decide. And indeed, presidents spend a great deal of time vetting candidates to make sure they get the “right” person, someone who will reflect their views once the new justice ascends to the high bench. Some argue that the notion of the Court simply following precedents and letting the law dictate its decision is a normative ideal. The empirical reality, they contend, is that justices are free to make policy without regard to constraints like stare decisis. This book takes exception to both of those theories of decision-making. Rather, I argue that the decisions of the Supreme Court are the result of a variety of factors that involve the personal policy preferences of the justices and legal factors. And when the Court makes those decisions, it is not blind to the fact that it needs to cultivate the good offices of the other branches to ensure compliance with its decisions and to protect its own institutional legitimacy. Even if the members of the Court were somehow able to put aside their sincere policy preferences and hew closely to the law in making their decisions, theirs would still be a political branch of government. Every decision the Court announces makes public policy on some level. Every decision to accept or deny a petition for certiorari is a policy statement whether large or small. With the types of issues the Court decides and the stakes of its decisions, it is a consequential policy maker. Its hegemony over the Constitution and its dominance in the areas of rights and liberties give it a major platform and multiple opportunities to help shape policy (Pacelle, Curry, and Marshall 2011). The slow, grinding mechanisms of separation of powers and checks and balances have inhibited Congress and created a vacuum that the Court and the president have filled to a degree. But the power of the Court and its opportunities are not without limit. There are important constraints that may limit the Court (Sunstein 1999). The Court needs some basis of popular support even as it ventures deeper

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into the controversial issues of the day. The Court lacks, as Hamilton noted, the sword and the purse, thus it needs to rely on the other branches of government. All this is by way of saying that the Court needs to preserve its legitimacy so that it and its decisions are respected. The symbols of justice and the law provide the judiciary with a buffer. The Supreme Court needs to preserve that shield. The results of the model of decision making in this chapter appear to show that the Court recognizes this. The modern Court’s decisions are influenced by the president, the House, the law, and to a small degree, public opinion. Justices can largely do what they please given their lifetime appointments and the fact that no other court sits above them. But collectively, they need to protect their institution to ensure respect for their work. This study is about how the Court navigates these potentially difficult straits. The Court is not without its own resources. It has power, legitimacy, and respect, but it also faces a number of challenges in attempting to stabilize the law, create good public policy, and maintain its authority. The scope of those challenges and the Court’s means of dealing with them are the subjects of the next chapters.

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Appendix to Chapter 1

The initial model, shown in Table 1.2, shows the complex nature of Supreme Court decision making. The Court’s decisions are a function of the attitudinal, strategic, and legal factors. As the attitudinal model suggests, the ideology of the Court has a statistically significant impact on decision making. Not surprisingly, it has a large influence across the almost 5,000 cases. As the Court moves one standard deviation in a liberal direction, the probability of a liberal decision will increase by .08. The naïve attitudinal model stops there, dismissing the impact of the other variables. In addition, the naïve attitudinal model would suggest an even greater impact from the Court variable. Other factors are clearly at play in influencing decisions. The model shows the influence of the strategic variables. The ideological positions of the president and the House of Representatives also seem to influence Supreme Court decision making. As the ideology of the president moves one standard deviation in the liberal direction, the probability of a liberal decision increases by .06. The impact of the House is slightly less. By contrast, the Senate has no apparent influence on decision making (its impact is in the opposite direction, but not significant). In Chapter 2, I will discuss the influence of the president more directly and examine why we might expect the Court to pay attention to the chief executive despite the apparent insulation of the judicial branch. Chapter 3 will examine the influence of Congress. In that chapter, I will discuss why the House and the Senate appear to be so different. We will see that the Senate has some hidden effects under some circumstances. In any event, the influence of these variables is less than that of the Court’s ideology but not a great deal less. As I refine the model in subsequent chapters, we will see that the impact of these factors vary across different issues and types of cases. Interestingly, public opinion has a small, but persistent, positive effect, controlling for the other variables. Though the effect appears small (the probability of a liberal decision increases by .03 when public opinion moves one standard deviation in that direction), it is important to consider that public opinion has direct and indirect effects on the Court. In

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Table 1.2 The Influence of Political and Legal Factors on Supreme Court Decision Making, 1953–2007: Civil Liberties and Economic Cases

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All Full Opinion Decisions Civil Liberties and Economic Cases Independent Variable

Θ (S.E.)

Supreme Court Ideology

1.69** (.28) .31** (.08) .56* (.27) –2.14 (1.17) .64** (.03) –.29** (.04) .04** (.01) –.46 (.33)

Presidential Ideology House Ideology Senate Ideology Precedent Issue Evolution Public Mood Constant

Δ Prob. Liberal Decision .08 .06 .04 –.02 .14 –.08 .03 —

LL = –3132.09 χ2 = 602.61 P < .0001 N = 4962 Note: (*) = p ≤ .05, and (**) = p ≤ .01. These models were estimated with logit regression using Stata 12.1. Standard errors in parentheses are robust. The probabilities were generated with Clarify. Simulated probabilities are calculated from 0 to 1 for dummy variables and from the mean plus one standard deviation for continuous variables. The predicted probability for precedent represents the difference between the probability of a liberal decision when the Court confronts a liberal precedent versus when the standard for the present case is a conservative precedent.

addition to the small, direct positive effect, the influence of public opinion is filtered through the House and the president. Thus there are indirect effects as well. Public opinion will be the subject of Chapter 5. We will examine if and how public opinion influences the Court, and then reverse the causal arrow and see if and how the judiciary can shape mass and elite opinion. Finally, precedent and the legal difficulty of the facts of the cases also influence decision making. These measures are proxies for legal variables, and their significance is a reminder that we are talking about a court of law and not simply an unelected, robed set of Platonic guardians simply exercising their own prerogatives. The variable for issue evolution

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is strongly negative, meaning that as the facts of a case get more difficult, the Court is less likely to make a liberal economic or pro-civil liberties decision. More precisely, as a case gets one stage more difficult, the chances of a liberal decision decline by .08. In addition, controlling for the other variables, the Court pays attention to its own prior decisions (horizontal precedent). The existence of a liberal instead of a conservative precedent enhances the probability of a liberal decision by .14 (controlling for the other variables). If the naïve legal model were correct, the influence of precedent would be considerably higher. Still, as the highest court in the land, the Supreme Court seeks to impose some consistency on the law to guide lower courts (vertical precedent), other political actors, and the behavior of citizens. Because this is a book about external influences on the Supreme Court, I will not be examining these two variables in the same detail, but they will be considered in the models in subsequent chapters and in the final chapter.

Notes 1. The Commerce Clause is one of the most significant sources of congressional (and federal) power. Only Congress can regulate interstate commerce. As a result, when the Marshall Court sought to expand the power of the central government, it used the Commerce Clause as the basis of that expansion. Similarly, when the Roosevelt Court would eventually protect the New Deal, it ruled that the creation of various programs was constitutional under the Commerce Clause. In 1964 when the Supreme Court upheld the constitutionality of the Civil Rights Act, it did so under the authority of the Commerce Clause. 2. The decision was polarizing. While overall support increased, Republican opposition to Obamacare increased.

2

The Supreme Court and the President

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An “Informal and Limited Alliance”

After narrowly losing the presidential election of 1960 and then the race for governor of California just two years later, Richard Nixon held a press conference to inform the gathered, “You won’t have Dick Nixon to kick around anymore.” But he turned out to be wrong. Remarkably, Nixon resurrected his political career. He captured the Republican nomination for president in 1968. Nixon’s political operatives designed a “Southern Strategy” to win the election and begin to reshape the Republican Party (Reichley 1981; Skrentny 1996). As part of that strategy in the general election, Nixon used the Supreme Court as a foil, running against the liberal, activist Warren Court (Abraham 2008). The South was still smarting from the Brown v. Board of Education (1954) landmark and its doctrinal progeny. Nixon also had a visible law-and-order plank in his platform, excoriating the Warren Court for handcuffing the police. This resonated with the public throughout the country. The Warren Court had been responsible for decisions like Mapp v. Ohio (1961), Miranda v. Arizona (1966), and Gideon v. Wainwright (1963) that expanded the rights of the accused (Powe 2000; Graham 1970) and incorporated various provisions of the Bill of Rights to the states (Cortner 1981). Though his margin of victory was razor-thin in 1968, Nixon could point to an emerging “silent majority” that was increasingly conservative. Indeed, if one combined the votes for Nixon and the third-party candidate, George Wallace, it was a significant majority that rejected the incumbent Democratic Party and its candidate, sitting Vice President Hubert Humphrey, and by implication the work of the Supreme Court. Nixon continued the drumbeat against the Court after his inauguration (Skowronek 1997, 359–360; Graham 1990, 304; Abraham 2008). Right from the outset, there were very strong indications that Nixon would have opportunities to influence the Court. In raising his voice in opposition to the Court, Nixon was willing to use a valuable presidential resource, the bully pulpit (Kernell 2007; Reichley 1981). But he also had some more tangible and direct resources to bring to bear. In this chapter, I examine the ways in which the president can try to influence the

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Supreme Court and assess how useful those sanctions might be. We will return to see how successful Richard Nixon was in his campaign against the judiciary. The institutional relationship between the president and the Court seems almost natural (Curry, Pacelle, and Marshall 2008). Indeed, according to Robert Scigliano (1971), that was the unwritten intent of the Framers. Scigliano (1971, 197) argued that the Framers designed the judicial and executive branches as “an informal and limited alliance against Congress.” Congress was supposed to be the most powerful branch of government, so the executive and judiciary needed to have some countervailing authority. The rise of presidential and judicial power has largely come at the expense of Congress. The Court has generally been reluctant to challenge the exercise of executive power, particularly in wartime (Fisher 1998; 2004; Pritchett 1984, 281–338; Silverstein 1997). The Court has also helped the expansion of presidential power by silent assent (Barilleaux 2006). It seems reasonable to think that the justices as individuals and the Court as an entity do not need to worry too much about the interference of the president. This would be particularly true in constitutional cases where the process of overturning a Supreme Court decision is onerous to say the least. Of course, it would not be difficult for the Court to find out the president’s positions on the issues of the day. Justices attend the State of the Union Address, the president is the most visible political actor in the nation, and his position can be conveyed by the Justice Department privately and publicly. Occasionally presidents even have social relationships with sitting justices or use them as political advisors (e.g., Murphy 1982; Kalman 1990; Davis 2011, 89–91). History is replete with examples of such informal communications. In Chapter 1, the results of the model shown in Appendix 1 (Table 1.2) show that the ideological position of the president has an impact on the Court’s decision making (controlling for the other variables). What are the mechanisms by which the president can influence the Court? In this chapter, I examine the formal constitutional provisions and the practical realities of the relationship between the Supreme Court and the president. The Framers of the Constitution separated authority to avoid the overconcentration of powers. They took the additional step of blending powers, giving each branch some control over the other two (with the possible exception of giving any significant authority to the judicial branch). The president has some formal constitutional powers to bring to bear as well as some informal resources that can be marshaled to influence the Court. The president’s sole formal authority in this area is the power to appoint federal judges. By virtue of wearing the hat of chief executive, the president is also charged with implementing the laws of Congress and the decisions of the Supreme Court, providing the potential for further influence. His most ready access to the Court may occur

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through the Department of Justice and the Office of the Solicitor General. In the end, the informal powers and the fact that the president speaks with one voice and has a national constituency may provide the most fertile grounds for influence.

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“He Shall Nominate . . .” The major constitutional power (found in Article II) that the president has over the judiciary is prospective: the authority to nominate judges to the lower courts and justices to the U.S. Supreme Court. This power is magnified because the judges and justices have lifetime tenure. The opportunity to nominate lower federal court judges and justices is constrained by the constitutional requirement of Senate confirmation and traditions like Senatorial Courtesy. At the Supreme Court level, the president still needs the “advice and consent” of the Senate but largely controls the agenda. History judges presidents by their nominations to the courts as well as their accomplishments in domestic and foreign policy (Abraham 2008). Robert Dahl (1957) noted that the Supreme Court cannot long hold out against majority sentiment to the contrary (but see Casper 1976). According to Dahl, the president’s power to nominate justices to the Court is the most important factor contributing to this reality. Presidential appointments to the Court provide chief executives with an invisible hand over the development of legal and public policy long after their terms have ended (Krehbiel 2007). Consider President Franklin D. Roosevelt’s role in shaping the trajectory of constitutional law and judicial doctrine in the past century. When Roosevelt took office, the Court was dominated by Republican appointees who supported laissez faire economic policies and showed little interest in addressing civil liberties issues (Baker 1967; Cushman 1998; Leuchtenburg 1995). By the close of his twelve years in the White House, Roosevelt had appointed all but one member of the Supreme Court. Those appointments changed the Court’s jurisprudence for decades by validating an expansive view of federal governmental power (Benson 1970; Abraham 2008). Many of those precedents remain viable today. In addition, appointees Hugo Black and William Douglas remained central to the Court’s treatment of civil rights and civil liberties issues into the 1970s (McCloskey 1960; Pacelle 1991; Ball 2000). A president’s powerful imprint may remain influential on the Court not just through appointees that outlive his tenure, but also through the legal precedents that are established because of those appointments. The stakes of a Supreme Court nomination could not be higher. First, the Supreme Court is a major policy maker. Second, while presidents come and go every 4 to 8 years, a federal judge or a Supreme Court justice can serve for 20 to 30 years, enhancing the impact of the president. There was a cartoon during the 1984 election that showed nine justices who

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looked remarkably like Ronald Reagan chanting “forty more years.” Indeed, Reagan, like one of his predecessors, Nixon, was able to reshape the direction of the Court (Pacelle 2002). Presidents take this responsibility very seriously, but they are hardly immune from making mistakes (Abraham 2008; Epstein and Segal 2005). Presidents typically make two types of mistakes when they err. The most obvious error is a misplaced logic. The president selects someone he feels will be his ideological clone only to see the nominee exert very different traits. Presidents increasingly try to guard against this mistake. The other mistake is an error of commission: a president uses the opportunity to select a justice to achieve narrow political goals rather than trying to further his legal goals and picks someone on non-ideological grounds. This increasingly appears to be the product of a bygone era (Epstein and Segal 2005). There are any number of examples of justices who surprised and disappointed the appointing president (Abraham 2008). One can go back to the early nineteenth century to find a vivid example. President James Madison sought a nominee who would counteract the overwhelming presence of Chief Justice John Marshall who shaped and animated the Court. He settled on Joseph Story, who for whatever reason soon fell in step with Marshall (Newmyer 1985). Theodore Roosevelt remarked that one of his appointees, the legendary Oliver Wendell Holmes, was “a bitter disappointment” and that he could carve more backbone out of a banana (White 1993, 307). Table 2.1 shows the presidential appointments since Brown v. Board of Education. There are a couple of noteworthy messages. First, they give the president a chance to move the median (the ideology) of the Court in the desired direction. Second, there is no guarantee that the president will always be successful. Justice Harry Blackmun turned out to be much more liberal than Nixon thought he would become (Yarbrough 2008). More recently, Justices John Paul Stevens and David Souter disappointed Gerald Ford and George H.W. Bush respectively (Yarbrough 2005). Maybe the most notable example was President Dwight D. Eisenhower’s selection of law-and-order governor Earl Warren of California. Warren had even been in charge of the Japanese relocation camps in World War II. While he did not betray those principles immediately, by his second term Warren was on his way to becoming the most liberal Chief Justice in American history. Eisenhower pointedly referred to two of his Court nominations, Warren and William Brennan (more about him in a minute), as mistakes, going so far as to call his 1953 nomination of Earl Warren “the biggest damn-fool mistake I ever made.” Eisenhower’s predecessor, Harry Truman, was also disappointed in at least one of his nominees and was even more blunt in assessing the performance of his second nominee to the Court, Justice Tom C. Clark: “He hasn’t made one right decision that I can think of . . . It’s just that he’s such a dumb son of a bitch” (O’Brien 2005, 83).

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Table 2.1 Presidential Appointments Since Earl Warren and Their Influence on the Supreme Court

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Justice John Marshall Harlan William Brennan Charles Whitaker Potter Stewart Byron White Arthur Goldberg Abe Fortas Thurgood Marshall Warren Burger Harry Blackmun Lewis Powell William Rehnquist John Paul Stevens Sandra Day O’Connor William Rehnquist Antonin Scalia Anthony Kennedy David Souter Clarence Thomas Ruth Bader Ginsburg Stephen Breyer John Roberts Samuel Alito Sonia Sotomayor Elena Kagan

President

Term

Eisenhower Eisenhower Eisenhower Eisenhower Kennedy Kennedy Johnson Johnson Nixon Nixon Nixon Nixon Ford Reagan Reagan Reagan Reagan Bush I Bush I Clinton Clinton Bush II Bush II Obama Obama

1955–71 1956–90 1957–62 1958–81 1962–93 1962–65 1965–69 1967–91 1969–86 1970–94 1971–87 1971–86 1975–2010 1981–2005 1986–2005 1986– 1987– 1990–2009 1991– 1993– 1994– 2005– 2006– 2009– 2010–

Ideology/Median Mod Lib* Mod Mod Mod Lib Lib Lib Con Con* Con Con Con* Mod Con Con Mod Mod* Con Mod Mod Con Con Lib Lib

Right Left Right Left Left Left No change Left Right Right Right Right Right Right Right No change Left Right Right Left Left Left Right Left Left

Ideology—the presumed ideology of the candidate before going to the Court (Con– Conservative, Mod–Moderate, Lib–Liberal) Median—the perceived direction that the new appointment would move the Court’s median Bold—Chief Justice * Represents an appointment that ultimately disappointed the president

It may have been Richard Nixon who first made ideological considerations central to presidential Supreme Court appointments, but more likely he was simply the first to articulate it clearly. Presidents had traditionally used their opportunities to select justices to shore up their political or electoral support. Rather than making the ideology of the candidate the primary objective, presidents have settled for nominees that reflected demographic concerns, and, as noted, they have paid a price.

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There had traditionally been a Catholic or a Jewish seat on the Court, and at one point region was a central motivation. Reagan picked Sandra Day O’Connor to be the first woman on the Supreme Court only to hear from conservatives that she was not ideologically pure enough. Eisenhower’s selection of Warren was not his only mistake. He also nominated a more openly liberal William Brennan as a prelude to trying to loosen Catholic voters from their traditional Democratic moorings. This was incredibly shortsighted, given the transitory nature of an election and the fact that Brennan would go on to serve for 34 years. Brennan was a critical component of the Warren Court’s constitutional revolution and maybe more importantly became the guardian of its legacy, even as the number of conservative justices climbed (Stern and Wermeil 2010; Eisler 1993; Clark 1995). While not all presidents have the opportunity to shape the Court to the extent that Roosevelt or Nixon had, presidents may only need to make one or two judicial appointments in order to change the ideological balance of a closely divided Court and impact its decisional trends for years (Silverstein 1994; Krehbiel 2007). As noted, it is a decision that will have ramifications for generations. When Justice Douglas left the Supreme Court in 1975, his departure officially ended the direct influence of Franklin Roosevelt. But that is a conservative estimate, in that some of the precedents Douglas supported or authored remain viable to this day. When Clarence Thomas was nominated, one commentator remarked that the president who would select his replacement was likely a junior in high school. If a president is not careful, focused, or lucky, his primary legacy could be negative. Still, the evidence suggests that justices tend to reflect the views of the presidents who select them (Epstein and Segal 2005, 121; Yates 2002). When justices do not reflect those views, it tends to be because they were chosen by presidents who had some of the nonideological criteria such as religion or regional ties in mind. As the Court has become a more activist institution, and the president and Congress have condoned its enhanced policy making, the investment in making a good choice could not be more important. There are a couple of twists to the story courtesy of Franklin Roosevelt. Roosevelt was involved in a very visible dispute with the Court throughout his first term. The president shepherded an entire legislative package designed to blunt the effects of the Great Depression through Congress. The Court, dominated by the remnants of the previous Republican period, struck down major components of the New Deal (more about this when I discuss public opinion and the Court in Chapter 5). Roosevelt bided his time until his reelection in 1936 and then announced his Court Reorganization Plan, which is better known as the “Court Packing Plan.” Claiming that the elderly members of the Court could no longer effectively discharge their duties, Roosevelt urged Congress to approve one new member for every current justice over the age of 70

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(Leuchtenburg 1995). In 1937, that would be 6 justices, and the resulting Court would then have 15. The Court Packing Plan was not well-received by the public. Congress refused to support the measure and so it died. But if the president lost the battle, he won the proverbial war. Perhaps as a result of the imminent threat to the Court, Justice Owen Roberts changed his vote in a key case. A new majority reversed field and was now upholding the elements of the New Deal. Roberts’ change has been labeled the “switch in time that saved nine” (Shesol 2010). In using a tool related to his constitutional appointment power, President Roosevelt was changing from the future to the present. The appointment power is typically used to influence the Court in the future, when the newly confirmed justice takes his/her seat on the bench. But here Roosevelt was using the appointment power to pressure the sitting justices. The Court Packing Plan was a “Hail Mary” that had little chance of success, but Roosevelt may have been more interested in influencing the current justices (Shesol 2010; McKenna 2002). Roosevelt would eventually get his opportunity to make some “legitimate” appointments, and his first one was Senator Hugo Black. Roosevelt surmised that the Senate would never reject one of its own, so he chose the undistinguished Black in his attempts to remake the Court. Black was not considered to be a legal scholar or even a sterling senator. It is thought that Roosevelt made the selection in an attempt to demean the Court and lower its standing (and legitimacy) in the public eye (McKenna 2002, 539–542). Just prior to his confirmation, it was revealed that Black had been a member of the Ku Klux Klan. Black survived the ordeal and was confirmed. It turned out that Roosevelt was wrong. Black went on to be rated as one of the great justices of all time (Abraham 2008). He supported the New Deal, as Roosevelt hoped, and became a major supporter of civil rights and individual liberties, belying his background. It was said of Black that as a young man, he wore white robes and scared black people, and as an older man he wore black robes and scared white people (Ball and Cooper 1992, 162–163). Of course, to be able to influence the Court the president has to have the opportunity. Replacing someone from the other ideological wing can move the Court significantly. But even replacing one of your party’s previous choices should at least keep that seat safe for another two decades. While it is a direct way of moving the Court, it is not a direct means of influence. Short of nominating someone, this is not a power that normally influences decisions from the sitting Court. Thus, as a check, nominating a justice is prospective. It is designed to change the Supreme Court in the future, rather than as a reaction or means of checking a previous decision that a president does not support. The nomination of lower court judges, however, can have a strong influence on the ideological direction of the judiciary. If Nixon was the

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president who first made ideological selection the only meaningful criterion, then Reagan was his counterpart for the lower courts. The Reagan Administration wanted to hire young conservative lawyers and monitor their decision making for potential promotion up the judiciary hierarchy. But more than most previous administrations, Reagan’s legal advisors recognized the import of lower courts (Steigerwalt 2010). First, the vast majority of cases that start in the lower courts never progress anywhere near the Supreme Court, making their judgments the final word. But for those important enough to reach the Supreme Court, the District and Courts of Appeals judges play a major role in framing issues and shaping the contours of those cases. The manner in which the case is treated can enhance the chances that the case will attract attention above. The tone of the opinions, the way the judges treat the core issues in the case, and any dissenting opinions can highlight the importance of the petition and separate it from the other 10,000 cases crowding the docket (Pacelle 1991; Perry 1991). I will revisit the importance of the lower courts in Chapter 7. It is also a measure of how important the courts have become and the untapped potential of the lower courts that the Reagan Administration concentrated its unprecedented efforts at judicial recruitment. According to Attorney General Edwin Meese, the Reagan appointees were selected in order “to institutionalize the Reagan revolution so it can’t be set aside, no matter what happens in future presidential elections” (Steigerwalt 2010, 7).

“He Shall Take Care That the Laws Be Faithfully Executed” Although presidential power over Supreme Court nominations represents an important aspect of the synergy between the executive and judicial branches, there are a number of other ways that presidents can interact with the Court. The president has other checks at his disposal that are more reactive and can be used to signal displeasure. And like the impact of the presidential veto on Congress, these checks do not need to be exercised to be influential. The threat or the possession of the weapon may be enough to gain the Court’s attention and to induce a more measured opinion. Although Article II is not spelled out in the Constitution explicitly as a check on the Court, it lays out the power of the president, including that the president “shall take care that the laws be faithfully executed.” The power to implement, or more precisely not to implement, the directives of the Supreme Court can be a major check. Because of the increased activism of the Supreme Court, the potential impact of its decisions is broad and sweeping. Those decisions, however, must be implemented, and the enforcement power is the province of the president and the executive

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branch. Thus the Court is at the mercy of the executive branch. If the president does not like a decision, he may choose not to enforce it (Canon and Johnson 1999). This dates back to the first meaningful Supreme Court decisions. In Marbury v. Madison (1803), the Court had to determine whether William Marbury was entitled to his duly confirmed commission as a federal judge. It is reputed that Chief Justice Marshall knew that if he ordered his cousin and bitter political rival President Thomas Jefferson to seat Marbury, Jefferson would have ignored the directive and the Court would have lost the little prestige it had (and probably all of its shallow reserve of legitimacy). Marshall was able to make the best of a difficult situation by creating the power of judicial review (Nelson 2000; Clinton 1994). Chief Justice Marshall was not so fortunate the next time. History books report that President Andrew Jackson, angry at the Worcester v. Georgia decision, snarled, “John Marshall has made his decision, now let him enforce it” (Canon and Johnson 1999). Clearly the president did not comply with the Court’s decision, but his oft-repeated “quote” may be apocryphal (Pacelle, Curry, and Marshall 2011). In Brown v. Board of Education, the Supreme Court invited the solicitor general to file an amicus curiae brief. One of the primary objectives of the invitation was for the Court to gauge whether the government would be willing to implement the decision if it ordered the schools to desegregate. The Department of Justice assured the Court that it would do so despite the reluctance of President Eisenhower (Kluger 1975; Pacelle 2003). In a related fashion, the president can help protect the Court’s legitimacy through his behavior and his use of the bully pulpit. When Eisenhower sent troops to Little Rock, albeit reluctantly, it lent strong symbolic support to the Court’s school desegregation decisions. President John F. Kennedy sent a similar message in 1962 when he dispatched several thousand troops to enforce desegregation at the University of Mississippi (Baum 2013, 209). As chief executive, presidents also have the capacity to oversee implementation of Supreme Court decisions by executive branch agencies and departments. The Court’s decision in Frontiero v. Richardson (1973), a gender discrimination case, required the U.S. Air Force to implement a policy it had originally opposed; ultimately, presidential oversight ensured the Air Force’s compliance with that decision (Carp, Stidham, and Manning 2004, 375). There are times when discretion becomes the better part of valor for the justices. There are instances when the Court decides to avoid an issue because it might provoke a strong response from the president. A number of individuals (as taxpayers) and the state of Massachusetts opposed the Vietnam War and challenged the constitutionality of the undeclared war. A number of justices voted to accept one or more of these cases, raising

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the specter of a constitutional showdown between the Court and the president. It would be hard to imagine that President Johnson or President Nixon would have implemented a decision that declared the military action to be in contravention of the Constitution. The Court ultimately refused to decide on the constitutionality of the war, and avoided a confrontation it could not win (Pritchett 1984, 323–325). This constitutional authority to implement a directive represents a check on the Court. The president’s authority sets broad boundaries for the Court. It is the law of anticipated consequences. The motivating idea is that the Supreme Court will forecast how the president will react and shape its decision accordingly. If the Court were to issue a decision and the president were to ignore or refuse to implement it, the Court’s legitimacy would be diminished. But it is also important to remember that there will be significant pressure on the president to implement the directives of the Supreme Court. Presidents would be inviting intense public scrutiny if they refused to implement a judicial decision.

“To Supervise and Conduct Government Litigation” Realistically, concerns with implementation only occur occasionally. Presidents will often carry out decisions even if they disagree with them. Replacing a justice will pull the Court closer to the president’s preferred policy position. But the opportunities for nominations are seldom predictable. The best continuous influence may come from a different source. When the president wants to influence the Court on a day-to-day basis, he may be able to use the solicitor general (SG) to do his bidding or at least represent his position. I will consider the solicitor general in this chapter as well as in Chapter 4, which examines the federal bureaucracy, and Chapter 6, which deals with litigants. The Office of the Solicitor General (OSG) is part of the Department of Justice, and the SG reports to the attorney general. The Office of the Solicitor General is akin to a small elite law firm. Like the attorney general, the solicitor general is a presidential appointee. In reality, the solicitor general is, in practice, what the attorney general is in name. The solicitor general decides which cases the government lost in the lower courts should be appealed to the U.S. Supreme Court. The SG then briefs and argues those cases that are accepted as well as defends the government’s victories in the lower courts (Pacelle 2003). The solicitor general can transmit the views of the president (and on occasion Congress) to the Court in a variety of ways. The solicitor general can present the justices with the position the president favors in the office’s briefs and oral arguments (Johnson 2004; Epstein and Knight 1998). There are also subtle and direct ways in which the SG can reveal the prospects for the faithful implementation of the directives. Because the solicitor general is answerable to the attorney general, it is likely that

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the president’s views will be closely considered (Pacelle 2003). Drew Days (1994–1995, 493) who served as Clinton’s first SG, noted that though presidents typically do not micromanage the office, given the way that the decision-making process works, by the time a case has reached the point of possible appellate court or Supreme Court review, the policy concerns of the President have usually been fully presented to the Solicitor General by his appointees in the affected departments and agencies. The solicitor general is often referred to as the “Tenth Justice” of the Supreme Court. The SG is the only litigant who has an office in the Supreme Court building. Both metaphorically and physically, the solicitor general is considered to have a “home field advantage.” The SG also has an unmatched record of excellence. No litigant annually has a higher percentage of petitions accepted for review, and no other party has a higher success rate on the merits (Black and Owens 2012; Pacelle 2003; McGuire 1993; 1995; Ubertaccio 2005). As one justice’s clerk put it: “We jokingly referred to the SG’s petition as the answer sheet” (Perry 1991, 133). Clerks and justices pay close attention to the briefs. As one clerk noted, “The solicitor general also knows all the catchwords, and they just know how to write a brief” (Perry 1991, 132). The Court relies on the OSG and, paradoxically, that puts constraints on the office. In recent years, the Court is getting over 10,000 petitions for writs of certiorari. Many of those will involve the U.S. government. The OSG carefully screens its own cases so that when the Supreme Court is reviewing petitions, it knows that any case brought by the OSG will have been carefully vetted. In a sense, in its case screening, the OSG is the first gatekeeper and works primarily as an agent of the Supreme Court. Though the OSG serves the Court, the solicitor general is subject to politics by virtue of the appointment process. The SG is nominated by the president and is answerable to the attorney general and the president. In many respects, the nomination of a solicitor general parallels that of a Supreme Court justice. The criteria are similar: both are wellrespected, have legal experience, and often share the legal philosophy of the administration (Pacelle 2003). There is often an “agenda” issue, like abortion or affirmative action, that dominates the administration’s concerns as a litmus test that might affect the choice of a justice and an SG (Salokar 1992). It is important to note, however, that the president’s ability to control and direct the solicitor general and the OSG is not assured. The OSG, like the Department of Justice, serves the people as well as the president. Presidents are not free to use the OSG strictly to do their political bidding.1 The frequency of participation in front of the Supreme Court makes the SG an important ally of the justices, who rely on the office’s expertise to

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control their docket and help structure doctrinal development (Pacelle 2003). H. W. Perry (1991, 132) claims that the SG “is surely the most important person in the country, except for the justices themselves, in determining which cases are heard in the Supreme Court.” The Court expects the SG to act as the attorney for the United States rather than for a particular president. So, if the president is going to attempt to use the OSG to push his agenda, he is going to have to pick his battles. It is a finite resource that the president cannot afford to spend recklessly. Indeed, tradition helps the SG maintain support from the Court and some autonomy from political forces (Caplan 1987). From the earliest periods, the attorney general did not try to micromanage the solicitor general. This established an ethos of independence for the office (Salokar 1992, 12). The solicitor general is involved in virtually all cases in which the U.S. government or one of its agencies is a party. The SG can also file an amicus curiae brief when the United States is not a party but the president and/or an agency wants to register its opinion or will be affected by the decision. In addition, a few times a year, the Court issues a Call for the Views of the Solicitor General (CVSG) asking the SG to file an amicus brief (Black and Owens 2012). In a real sense, like the Supreme Court, the SG has the difficult task of balancing a number of obligations. When the United States is a party to the case, the OSG is constrained by the position of the agency or the statute that is being reviewed. It is difficult in these cases for the solicitor general to do the president’s bidding. When the Office is invited to participate, the OSG is considered to be the “Fifth Clerk.” The SG is expected to put partisanship aside and help the Court deal with a vexing issue. In each of these instances, the position of the president may be considered, but it will seldom be the sole driving force (Pacelle 2003). The amicus curiae brief allows the solicitor general to insert the government or the president into a case when the United States is not a party (Pacelle 2003; Collins 2008). Because the government is not a party, there is limited liability of a harmful precedent. Thus, the SG is free to advocate a position without significant penalty or cost. Such cases, normally involving states, provide the best opportunity for the SG to vet the position of the president while utilizing the office’s prestige to influence the Court. As a result, they allow the SG to take positions in the so-called “agenda cases” and infuse more “politics” into the office (Salokar 1992; Caplan 1987). With precedent and positive law as secondary concerns, the amicus brief provides a relatively “free” opportunity to shape policy and make a statement to interested constituencies. Thus, many analysts argue that such cases provide the best opportunities for presidential influence. But it is important to remember that the president is limited in how often he can use the OSG in this fashion. Wohlfarth (2009) shows there are real consequences for a president who uses the SG too often to push

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his political agenda. In addition, not all amicus curiae briefs are created equal (Pacelle 2003). The SG provides some opportunities for the president, but the office also occasionally stays his hand. The solicitor general works with the Court to impose stability on the law. This can undermine a president’s policy preferences. Members of the office estimate that 90 percent of the time, the name and the political party of the person sitting in the Oval Office are irrelevant to the solicitor general. For instance, as many members of the office have noted, in criminal cases, the goal of the SG is to keep the bad guys in office (Pacelle 2003). Similarly, regardless of the priorities of a sitting administration, the OSG typically supports the prerogatives of the federal government. Even when presidents like Ronald Reagan are interested in redrawing the boundaries between the state and national government, the OSG supports the latter. No matter how much Congress and the public rail against the Internal Revenue Service, the OSG supports the agency before the Court. Indeed, in a previous study, Pacelle (2006) found that in only civil rights and individual liberties cases was the position of the OSG a reflection of the president’s policy preferences.

“An Informal and Limited Alliance” It is important here to step back and assess the relationship between the president and the solicitor general. As recently as January 1969, President Nixon did not replace his predecessor’s, Lyndon Johnson’s, solicitor general. It is hard to imagine today that a Republican president would not seek his own counsel, literally. Today the president chooses an SG whom he expects will share and represent his views in screening cases and arguing before the Supreme Court. Virtually every analyst and long-term members of the office acknowledge that the OSG has become more politicized (Pacelle 2003). It is more vulnerable to the political forces in the administration (Caplan 1987; Salokar 1992; Wohlfarth 2009). But even these changes do not alter the fact that the president has to pick his battles carefully. He cannot completely bend the office to his will. The Supreme Court understands that the office must occasionally carry water for the president. But the president and the solicitor general understand that if they do this too often, it will harm the longstanding positive relationship the office has with the Court. So, while the SG may not follow the president most of the time, it is likely that the cases when the two are aligned will be the important “agenda cases” that carry the most weight (Salokar 1992; Pacelle 2003). It is convenient to think that the influence of the president is simply a result of a few appointments (Krehbiel 2007). And indeed, on a closely divided Court, one or two appointments can swing the majority. But according to the decision-making model specified in Table 1.2, the

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president exerts an influence over and above the confluence of his policy preferences and those of the Court. Some of that can be attributed to the influence of the SG, but the law of anticipated consequences may play a similar role. The Court needs to maintain its legitimacy, and doing so may require it to avoid head-on collisions with the other branches and to take steps to maximize the chances that the president will execute its verdicts and Congress will sign the checks the Court writes. In the end, the president’s best resource and recourse may not be constitutional but just a matter of practical politics. As the only office holder who is elected by a national constituency, the president has control of the bully pulpit. The strategy of “going public” has become the operational mode for presidents, and they may use their voices to build support for or opposition to the Supreme Court (Kernell 2007). During President Obama’s State of the Union address in 2010, he was sharply critical of the Supreme Court’s decision in Citizens United v. Federal Election Commission. In the case, the Court declared that the First Amendment prohibited restrictions on independent political expenditures by unions and corporations. Obama claimed that “the Supreme Court reversed a century of law to open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.” And he added, “Well I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities.” Cameras caught the reaction of Justice Samuel Alito shaking his head and mouthing “that is not true.” It was an unusual and very public forum for criticizing the Court. As promised, let’s return to assess Richard Nixon’s success in dealing with the Court. His relationship with the Court may not have been typical, but it showed the full range of activities. Nixon had numerous opportunities to appoint justices to the Supreme Court. Chief Justice Warren, the symbol of the activist Court that bore his name, stepped down and was replaced by Warren Earl Burger, who was much closer to the president’s ideological preferences. Soon after, based in part on leaks from sources in the administration, Justice Abe Fortas resigned amid charges of conflicts of interest. The mechanism of checks and balances reared its head at this point. To further the Southern strategy alluded to earlier, Nixon appointed first Clement Haynsworth and then, when that failed, G. Harrold Carswell. No president had ever had consecutive nominations rejected. But the Carswell nomination was considered so problematic that Democrats, with some Republican votes, blocked this one as well (Abraham 2008; Epstein and Segal 2005). Nixon was ultimately able to fill the vacancy with Harry Blackmun, a longtime friend of Burger. The two were dubbed “the Minnesota Twins” (befitting their native state). It was thought that Burger would exercise great influence over his friend, and so Blackmun was sometimes referred to as “Hip Pocket Harry” to signify that the new Chief Justice could

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rely on his vote. Getting two conservatives, who Nixon referred to as “strict constructionists” in that they would be “faithful” to the Constitution, to replace two liberal justices would move the Court to the right (Abraham 2008).2 Just a year later, liberal lion Hugo Black and moderate John Marshall Harlan left the Court, providing two more opportunities. Nixon picked moderate-conservative Lewis Powell, a Democrat, and strong conservative William Rehnquist. In less than three years, Nixon had begun a transformation of the Supreme Court. Jimmy Carter would go four years without a single chance to select a Supreme Court justice in his first term, while Nixon had four nominations (six if you count the two who failed). The Burger Court may have slowed the express, but it certainly did not steer completely in the opposite direction or subvert the work of the Warren Court. While the Burger Court was more law-and-order oriented, it did not pull in the reins on civil rights (Blasi 1983; Schwartz 1998). The solicitor general did not signal a wholesale retreat from the eight years of Democratic Party control. Indeed, although Nixon may not have wanted to be in the vanguard of civil rights advances, the OSG continued to press ahead with pro-civil rights cases and arguments (Pacelle 2003). And when the Court made controversial decisions, particularly those involving extraordinary remedies like busing as a tool to uproot chronic segregation, the administration went along, even if grudgingly (Skrentny 1996). It is important to note, though, that the Nixon solicitors general were the first to oppose civil rights claimants in Court. The OSG under Nixon filed five amicus briefs to limit civil rights. The administration sought to limit busing where it could, but tried to do so through legislation (Pacelle 2003) In the aggregate, the Court moved to the right, as the attitudinal model would have predicted. But the impact of precedent was an anchor that kept the Court from moving too far. While Nixon was able to give the White House back to the GOP, Republican inroads in Congress were modest, and the Democrats remained in control of both houses. Divided government affords the Court something of a comfort zone. In such circumstances, its decisions may incur the wrath of one branch, but the other branch of government will be more supportive and able to come to the aid of the judiciary if necessary.

1.81 Miles,3 But Sometimes It Seems Much Closer The president and the Court are linked, despite their different time clocks and the modes of selection that brought them to Washington, particularly through the Office of the Solicitor General and the appointment power. Each branch has profited from the decline of Congress as a national policy maker. In formulating the blueprint for the Constitution, the Framers borrowed heavily from political theorists like John Locke and

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Montesquieu. Interestingly, each of these theorists thought that executive power included the authority to adjudicate. The Framers, wary of unfettered executive power, created a third branch of government to be independent of the executive (and the legislature) to resolve disputes. The judicial branch, headed by a Supreme Court, was born. Thus, it is easy to see how Scigliano (1971, 197) could conclude that there is “an informal and limited alliance” between the two branches. Louis Fisher (1998; 2000), among others, has referred to the power arrangements of the Constitution as an “invitation to struggle.” The Constitution set out a blueprint for a fragmented power structure. Presidents and Congress have battled over short-term political priorities as well as long-term power relations. The Court has often been a referee for such battles and occasionally an active combatant with a direct stake in the outcome. As a referee, the Court is asked to pick between two powerful institutional rivals, each with the resources to retaliate against the judicial branch. The justices have the convenient escape hatch of the “political questions doctrine,” which allows the Court to demur and argue that the particular issue before them is the province of the elected branches of government (Pritchett 1984). Drawing lines of demarcation between the two elected branches is often a zero-sum game. One branch wins the dispute, and its gain of power comes at the expense of the other. The Court’s decision is certain to antagonize the loser, but the Court may be shielded or protected by the winner. All presidents confront issues that go to the core of executive power, and no president wants to concede any of the reserve of power that he may bequeath to his successors. Thus, exerting and protecting presidential power is not ideological; all presidents regardless of political stripe, seek to protect the authority of the office. By and large, when the Court has intervened to decide such battles, it has sided with executive over legislative power. This does not mean that the Court has not rebuked the executive branch on numerous occasions. But on balance, the twentieth and early twenty-first centuries have seen the expansion of executive power. Presidents have used various mechanisms to enhance their authority. Congress has abdicated certain power to the president, and the collective-action problems of the legislative branch have shifted power almost by default. And, for the most part, the Court has facilitated this transfer of power. Presidents can help shape the long-term direction of the Supreme Court and its policy pronouncements through their appointment power. They can also influence the short-term direction of the Court through their use of the solicitor general. The authority and responsibility to implement directives can also influence the Court. Finally, the president can use the bully pulpit to help shape public opinion in support of or in opposition to the Court or its decisions.

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Since Brown v. Board of Education, the Court’s most important work has been dominated by rights and liberties cases. With that reality as a backdrop, I want to modify the analysis of the cases that we used in Chapter 1. There, in Table 1.2 in Appendix 1, we looked at a general model of Supreme Court decision making, and using all full decisions in rights, liberties, and economic cases, we found that the president and the House both had an impact on the Court’s decision making as well as legal factors and the ideology of the Court itself. That initial model revealed that the ideology of the president had an influence on the decisions of the Supreme Court. Controlling for the other variables, as the position of the president got more conservative (liberal), the decisions of the Supreme Court would also get more conservative (liberal). In this chapter, the primary issue is the relationship between the president and the Court. Table 2.2 (in Appendix 2 at the end of this chapter) measures the relative effects of the president and Congress (as well as the other variables) on civil liberties and individual rights. For much of the period that I am defining as the modern Supreme Court, civil liberties and civil rights cases were treated differently than economic cases. The Court would exert more activism in civil rights and individual liberties cases and more restraint and deference in economic cases (Pacelle 1991; 1995). While most of these cases would involve interpretations of the Constitution, at times Congress has passed statutes protecting civil rights, and occasionally limited them (Eskridge 1991a, 1991b; Cortner 2001; Pacelle 2003), and presidents have used executive orders to expand (or sometimes contract) rights and liberties (Marshall and Pacelle 2005; Mayer 2001). The frequent conflict between Congress and the president, the salience of the issues to the Court, and the constitutional bases of many of the cases, conspire to limit the impact of the president in such cases. This begs an initial question: Why should we expect the president to have an impact in such cases, given the dominance of the Court in these issue areas and the constitutional bases of the questions? Still, for the reasons discussed in this chapter, I start with the hypothesis that the president will have a positive, statistically significant influence on the Court’s decisions in the individual liberties and civil rights cases. Both the president and Congress have a battery of potential sanctions that they can use against the Court. The elected branches also have some channels of communication and influence that are more conciliatory and collaborative. Before we examine the president’s influence, let’s look at the legal and attitudinal variables, as well as public opinion. The results of Table 2.2 (available in Appendix 2) show that each of the variables, except the ideology of the House and Senate, has a statistically significant impact on the Court’s decision making in these cases. It should be no surprise that the ideological predilections of the justices have a very strong influence on civil rights and civil liberties decisions. For the timeframe

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of this study, civil rights and individual liberties were the litmus tests for presidents when they nominated Supreme Court justices (Abraham 2008; Epstein and Segal 2005). They were also the central focus of the Court in constructing its agenda (Pacelle 1991; Hendershot, Hurwitz, Lanier, and Pacelle 2013). The strength of the attitudinal model (and this variable) is most evident in these kinds of cases. It is also not surprising that the issue evolution variable is statistically significant. As cases get more difficult (raising more gray-area questions), the Court is less likely to make a decision that supports rights and liberties. Looking at this from the opposite angle, the difficulty of these issues enhances the probability that the Court will decide in favor of the state’s right to impose restrictions on or limit rights and liberties. The Court also pays attention to its precedents in these areas. They have a strong statistically significant impact on the Court’s civil rights and individual liberties cases. The magnitude of the impact seems a little surprising, given the fact-intensive nature of the cases. Justices also claim to be less reliant on precedent in such cases. It is important to remember that these civil rights and individual liberties cases are both statutory and constitutional. The influence of precedent is stronger in the former than the latter, an indirect effect of the elected branches. Regardless of the grounds for the decision (constitutional or statutory), the impact of public opinion, relatively small but significant nonetheless, is surprising. These are the issues that are typically counter-majoritarian. Rights and liberties protect the powerless and those who lack political muscle. Public opinion may set some boundaries that the Supreme Court respects. The variable of interest in this chapter is the president, and the results of the model show a decided impact for the president. The ideology of the president influences the decisions of the Court in rights and liberties cases. This is a little surprising, in that liberties and rights are largely constitutional issues and thus the Court’s decisions require extraordinary responses from the elected branches to reverse them. On the other hand, these are issues that clearly divide the two parties, so the Court will know the ideology and the policy position of the president. For a more in-depth analysis of this particular model, refer to the appendix at the end of this chapter. Part of the alignment between the president and the Court will come from the nomination process. In the wake of the Great Depression when Franklin Roosevelt finally had the opportunity to nominate justices, and with vivid memories of the hostility of the Supreme Court to his programs, the president had a specific profile in mind. The agenda issues for Roosevelt revolved around the economy. Roosevelt wanted justices who would protect his programs and who would support governmental regulation of the economy (Abraham 2008; McKenna 2002;

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Shesol 2010). When the Court apparently capitulated to the president after the Court Packing Plan, the justices eventually adopted the “double standard” that promised to treat economic and civil liberties issues differently (Pacelle 1991). As noted, the Court adopted judicial restraint for economic matters, while brandishing judicial activism when cases involved civil rights and individual liberties. It was not long before those matters became the new agenda issues for presidents when they nominated justices (Pauley 2001). President Kennedy nominated Byron White to the Supreme Court after his steady work on behalf of civil rights in the Justice Department (Hutchinson 1998). President Johnson appointed the first African American, Thurgood Marshall, who went from arguing civil rights in front of the justices (Tushnet 1994) to protecting those rights and liberties as a justice (Tushnet 1997). Earlier in the chapter, I detailed how President Nixon made law and order the focus of his judicial recruitment. President Reagan used reproductive rights as one of his agenda issues. And so it has continued for subsequent presidents—their candidates had to be “right” (or “left,” I suppose) on social issues, rights, and liberties rather than economic issues. The confirmation hearings have focused on those issues and even led to the rejection of a nominee like Robert Bork in part because of his position on a constitutional right to privacy (Abraham 2008). Because the Court was the primary actor in rights and individual liberties, its decisions were often examples of judicial activism, making them more controversial. Beginning perhaps with Jimmy Carter, but certainly evident since Reagan, presidents have also used the agenda issues of civil liberties and civil rights as the basis for choosing their solicitors general. Recent presidents have also expected their solicitors general to argue forcefully for the administration’s ideological position on such issues (Pacelle 2003; Caplan 1987). I will consider the influence of the solicitor general in the models presented and discussed in Chapters 4 and 6, but a few words are appropriate at this juncture. The OSG can carry water for the president and bring cases to further the agenda of the administration. But the office owes a duty to the Court not to simply push the unfiltered agenda of the president. Strategically, the OSG does not want to take cases that will not attract the support of the median justice. Otherwise, there will be long-term hostile precedents to impair its goals. For almost two decades the OSG always supported civil rights claimants regardless of the president (Pacelle 2003). This would reduce the impact of the president. It is often argued that the primary reason to have an unelected judiciary is to prevent tyranny of the majority and protect the rights and liberties of unpopular groups and those with radical ideas (Pacelle 2002). Presidents

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are not elected because they protect the rights of the accused or support unpopular ideas. In fact, in most elections, civil rights and individual liberties are not at the center of debate and discussion. But presidents care about such issues. Salokar (1992) called them “agenda issues,” and increasingly they divide the parties. Such issues are often the basis on which presidents choose their solicitors general and justices. So, if they have done their homework properly, they reap what they sowed with decisions that are consistent with their policy goals. These issues are more likely to be the subject of amicus curiae briefs filed by the OSG: studies show that discretionary amicus briefs provide the most propitious opportunities for the president to enlist the aid of the OSG in advancing his agenda (Bailey, Kamoie, and Maltzman, 2005; Segal 1988; 1990; but see Pacelle 2003; 2006). Because these are the agenda cases, the solicitor general (who was also chosen for his/her position on these issues) will have the opportunity to vent the views of the administration in the written briefs and bring the voice of the president into the oral arguments. By contrast, the influence of the ideology of Congress on such decisions is virtually nonexistent (we will see how Congress exerts its influence in Chapter 3). In addition, the influence of the president is even stronger than it looks in the model presented in Table 2.2. The largest percentage of the cases that comprise the summary category of the civil liberties and civil rights issue area in Table 2.2 is criminal procedure cases. Regardless of how liberal a president is, he is going to support the forces of law and order. The Court for its part has its own needs. Lacking the sword (which belongs to the executive) or the purse (which is the province of the legislature), the Court needs to guard its institutional legitimacy. Too many battles with the other branches can expose the weaknesses of the Court and undermine its finite reserve of legitimacy. As a result, it is not surprising to see that the Court is going to exercise restraint on occasion and act strategically. Justices, as individual policy makers, may have every incentive to push their sincere preferences, and they have a lifetime tenure to ensure their independence. But their power to see their views read into legal doctrine is dependent on the welfare of the institution. So, while they desire to push their views, they are mindful of the damage that the president or Congress could do if they stray too far from the general and generous boundaries that define their terrain.

The Umpire Strikes Back It is tempting to look at the imbalance of power and assume that the Court is in a precarious position vis-à-vis the other branches. But the Court is far from powerless. The Framers of the Constitution did not give the Court many weapons to defend itself from the other branches of government, particularly from the president. But just as the Court created the power of judicial review, it has developed its own defense mechanisms.

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Ultimately, the Court’s power and authority is directly tied to its legitimacy. Retaining its legitimacy gives the Court the opportunity to exert its authority when it feels compelled to do so. That means the Court should be careful in the exercise of its power. Judicial review, of course, is the most imposing weapon that the Court brings to checks and balances. If the Court strikes a piece of legislation as unconstitutional, the likelihood of overturning that decision is rather remote. Like a presidential veto, judicial review does not have to be used in order to be effective. The specter of judicial review has stopped more bad legislation than its use. And that is fortunate for the Court, because legitimacy requires the justices to make sparing use of this weapon. Judicial review may be the ultimate weapon in its potential scope, but it pales in frequency to the simple ability of the Court to interpret constitutional and statutory language. While this is more of a factor for Congress, the president has a stake in the policies that emerge from the interplay of the branches. The ability to interpret and expand or contract statutory language gives the Court some important weight in its dealings with the other branches. In addition, the Court can act strategically and, in a sense, “pick its spots.” If the Court hews to the presidential interests when those cases are unimportant to the justices, then it can exercise its power when a majority really cares about a certain issue. Another shortterm winning strategy for the Court is simply to avoid some cases or issues that could provoke a hostile response (Murphy 1964). This may force the other branches to address the controversial issues. The Court can always attempt to clothe itself in the Constitution or the law. If the Court can base its decisions on precedent, it has a legitimate basis for its opinions. The Court’s legitimacy is its primary resource. The Court can use it when necessary as long as it does not overspend. Presidents may oppose a particular decision or a series of them, but politically they are advised not to spend their own finite resources in a quixotic pursuit. A battle with the Court is one that a president is bound to lose. If he does manage to win, it would likely be at a terrible cost. In his classic book, Elements of Judicial Strategy, Walter Murphy (1964) argues that if necessary, the Court should put itself in peril with the idea that the president will be “forced” to come to its rescue. There are two continuing interactions between the Court and the president that give the former a great deal of leverage. Occasionally, cases involving executive power reach the high court. All presidents support the growth of presidential power. Presidents can curry favor with the Court by not reacting to every decision they find problematic and by enforcing the decisions even if they might not agree with them. The Court can cultivate this relationship by deciding power disputes in favor of the president. The solicitor general and its proximity to the Supreme Court is part of the subject of Chapters 4 and 6. Let’s take a moment to examine the role of the solicitor general as a legal resource for the president. Presidents

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would like to use the SG whenever possible to push their agenda items in the Court. They can do that when the government is the party to a case and also when the SG files an amicus curiae brief. This would be another reason for the president to think carefully before attacking the Court. The Court can reject higher percentages of the government’s petitions and give the SG fewer victories on the merits. Thus, there is a mutual advantage for both the Court and the president to cooperate. The SG is a particularly strong conduit in both directions. The SG can communicate the designs of the president to the Court and bring messages back to the White House from the Marble Palace. The Reagan Administration made little secret of its desire to overturn Roe v. Wade. Unwilling to invest in a costly and likely futile battle to pass a constitutional amendment, Reagan attempted to use his solicitors general to urge the Court to overturn the precedent. The Court repeatedly rebuffed the overtures, and Solicitor General Charles Fried publicly stated that he would no longer pursue this (Pacelle 2003). As noted, Wohlfarth (2009) has shown that when the SG has been too political in its briefs, it incurs a cost with the Court. Presidents have an incentive to use their time in the White House to cement their place in history. Presidents must work with Congress to ensure that their legislative agendas survive and reach fruition. But most presidents soon learn that is not enough. Over much of the last half century, a number of presidents have served during periods of divided government that complicates their attempts to exert influence and establish their legacies (Fiorina 1996; Quirk 1989). This has encouraged presidents to seek influence and advance their policy goals in other ways, such as relying on executive orders to circumvent Congress (Deering and Maltzman 1999; Howell 2003; Krause and Cohen 1997; Krause and Cohen 1997; 2000; Marshall and Pacelle 2005; Mayer 2001) and using executive agreements instead of treaties to bypass the Senate (Howell 2003; Krutz and Peake 2009). The subject of this analysis is the more short-term policy issues current to the times. Presidents get elected on the promise to seek certain policy goals. Those goals can run into legislative and judicial roadblocks that undermine the legacy of the administration’s accomplishments. Thus, presidents have a powerful incentive to try to influence judicial decision making to help buttress their policy agenda. But when it comes to constitutional decisions, the president is at a disadvantage relative to the Court. In the end, the elected branches of government have empowered the modern Supreme Court, and it is unlikely that the clock can be turned back to a simpler time when the Court was a less dangerous branch. According to Whittington (2007, 5), Presidents—in their capacities as heads of the government, as national political leaders, and as national party leaders—have been particularly important in determining the relative authority of the Supreme

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Court to say what the Constitution means. Presidents may challenge the supremacy of the Court as a constitutional interpreter, or presidents may defer to the supremacy of the Court and encourage other political actors to defer as well. Typically, “presidents have found it in their interest to defer to the Court and encourage it to take an active role in defining the Constitution and resolving constitutional controversies” (Whittington 2007, 5).

Conclusion The results of the overall model presented in Chapter 1 (Table 1.2 in Appendix 1) show that the policy position of the president influences decision making by the modern Supreme Court. In this chapter, we saw that the influence of the president is substantively significant in civil rights and individual liberties cases. These are salient issues that presidents care about. Scigliano (1971) argued that there was an informal alliance between the judicial and executive branches. These issues provide a strong basis for this alliance. Civil rights and individual liberties issues divide the political parties. When presidents nominate prospective justices, these issues are foremost in their minds (Epstein and Segal 2005). Presidents often ask their solicitors general to file amicus curiae briefs before the justices to address these controversial issues (Pacelle 2003, but see Wohlfarth 2009). The appointment process and the solicitor general are the primary mechanisms for influencing the Court, and it appears that they are having the intended effects in the areas of civil liberties and civil rights. Indeed, it is important to remember that victories by the OSG create favorable precedents that can be used in the future. The executive branch also has the authority to implement directives, whether they come from agencies, Congress, or the courts. Presidents seldom fail to exercise this responsibility even when they oppose the policy. But that is not really the point. The authority can be prospective. The Court, or so the theory goes, will be careful not to incur obligations that the executive will not honor. In other words, the Court will circumscribe its decisions and policy making in anticipation. Maybe the easiest way to think about this is to start with the adage “discretion is the better part of valor.” The president and the Court have the ability to make life difficult for each other, but neither typically does. Sometimes, their interests are coincident, so there is no reason to provoke each other. But on other occasions, the goals of one branch are in conflict with the other. What stops the two from engaging in a costly battle, even if one of the protagonists thinks it can prevail? The president and the Court have wide-ranging goals. Spending too much legitimacy (for the Court) and too many resources (for the president) will at best yield a Pyrrhic victory.4

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We often focus on individual cases and potential conflicts between the branches. It is important to view the relationship between the president and the Court in a long-term perspective. The Court’s most consequential decisions since Brown have occurred in civil rights and individual liberties, areas in which the judiciary is seen as the primary policy maker. But presidents care about these issues. They are the agenda issues for their solicitors general and the important litmus-test issues for their nominees for the Supreme Court. Presidents have expressed their opposition, but they are seldom willing to pay the costs of a protracted war. Still, their influence over the Court’s decision making is shown in these issues despite the fact that the president’s ability to overturn such a decision is limited. As discussed in this chapter, there are three reasons for this influence: the appointment process, the responsibility to implement directives, and the Office of the Solicitor General. The executive power of implementation provides a short-term incentive. The appointment power gives the president the chance to bring the Court into alignment with the goals of the administration. Of course, this power is dependent on having some vacancies and doing a good job in screening potential nominees; it is more of a long-term influence. Finally, the president has a limited but important resource in the solicitor general. The SG can carry the president’s message and interests directly to the justices. This potential check has short- and long-term components. Indeed, presidents have pushed the boundaries on using the solicitor general (Caplan 1987; Fried 1991; Pacelle 2003) and the appointment authority (Abraham 2008; Krehbiel 2007) in a more political manner. If Scigliano (1971) is correct and the executive and judicial have formed some sort of an alliance, it is one that is born of necessity, and their target is Congress. There are good practical reasons for the Court to be more responsive to the president than it is to Congress. Presidents speak with a single voice, and their ability to go public gives them greater visibility. The Court needs to protect its legitimacy, and one means of doing that is by avoiding messy battles that call the public’s attention to the institution (Clark 2011). Congress, on the other hand, has a collective action problem in trying to attack the Court. In the next chapter, we turn our attention to the legislative branch and its relationship with the Court. Congress has a greater array of weapons, but it faces greater constraints in wielding them successfully. On the other hand, Congress has been less willing than the president to countenance the Court’s claim of its supremacy over interpretation of the Constitution. It is also important to remember that influence flows in two different directions. The Court is not a helpless target, and it does have opportunities to wield influence. Dozens of cases a year will involve administrative agencies and parts of the federal bureaucracy. Congress and the president

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will have a stake in those decisions (I will address this in Chapter 4). Periodically, cases involving congressional or presidential power are going to wend their ways to the Court. Sometimes those will be zero-sum games when a decision buttressing executive power is going to come at the expense of the legislature. The prospects of such cases may encourage the other branches to avoid open warfare or attacks on the judiciary. For much of the last half-century, the Court has sided more with the executive branch than the legislative, providing the judiciary’s contributions to the “informal alliance.”

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Appendix to Chapter 2

In this section, I am going to examine the decision-making model in some greater detail and precision. The focus of this chapter is the impact the president has on Supreme Court decision making, while controlling for the other strategic, attitudinal, and legal variables. As noted in the chapter, there are some opportunities for the president to influence the Court. The appointment power lets the president move the Court’s median in his direction. The executive power to implement policies provides boundaries. The Court should act strategically in not pushing beyond what the president might tolerate. Finally, the solicitor general gives the president the chance to communicate directly with the Court (though clearly the SG is not simply a presidential mouthpiece). In the first chapter, I used all of the civil rights, civil liberties, and economic decisions in the 1953–2007 period. In this chapter, we are going to concentrate on civil rights and individual liberties cases. These are the most salient issues to the president and the Court, making the connections between the two branches even more attenuated. The results of this model are shown in Table 2.2. The impact of the attitudinal variable (the Court’s ideology) is consistent with the conventional wisdom, but a closer look is revealing. As the Court’s median justice moves one standard deviation to the left (in a liberal direction), the probability of a decision that favors civil rights and individual liberties increases by .09. While that is a substantively significant change, given the salience of the issues, it is perhaps less than the attitudinal model alone would have predicted. The impact of issue evolution as measured by the difficulty of the case is also statistically significant. As the facts of a case get more gray, the chances of the Court deciding in favor of civil rights and individual liberties claimants decline. In other words, as the cases get more difficult, the probability of a decision in favor of the government restricting the exercise of liberties or rights increases. And the magnitude of the impact is similar to the influence of the ideology of the Court. As the facts of the case get one degree more difficult (as measured in the stage of evolution), the probability of a decision favorable to civil liberties declines by .08.

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Table 2.2 The Influence of Political and Legal Factors on Supreme Court Decision Making, 1953–2007: Civil Liberties and Civil Rights

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Full Opinion Decisions Civil Liberties and Civil Rights Independent Variable

Θ (S.E.)

Supreme Court Ideology

2.17** (.35) .34** (.11) .02 (.37) –1.11 (.79) .51** (.05) –.33** (.06) .04** (.01) –1.48** (.59) LL = –1883.02 χ2 = 301.98 P < .0001 N = 2935

Presidential Ideology House Ideology Senate Ideology Precedent Issue Evolution Public Mood Constant

Δ Prob. Liberal Decision .09 .05 .00 –.01 .12 –.08 .03 —

Note: (*) = p ≤ .05, and (**) = p ≤ .01. These models were estimated with logit regression using Stata 12.1. Standard errors in parentheses are robust. Simulated probabilities are calculated from 0 to 1 for dummy variables and from the mean plus one standard deviation for continuous variables.

Precedent exerts a strong positive influence. The Court is apparently trying to standardize the law, often through the creation or application of tests and standards. The magnitude of the difference looks quite large: .12. In other words, the probability of a favorable civil rights and civil liberties decision increases by .12 when the Supreme Court is considering a case with a liberal precedent in comparison to when the current case is based on a conservative precedent. Even public opinion, which should have the least influence on individual liberties and civil rights, plays a statistically significant (if somewhat weak) role in the Court’s decision making. But let’s return to the focus of this chapter, the president, and compare his influence with that of Congress. To begin, neither house of Congress has a statistically significant impact on Supreme Court decision making

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in the areas of civil rights and individual liberties. This suggests that the Court does not account for the position of Congress when it is making such decisions. The history seems to bear this out. The Warren Court and Congress were at loggerheads for over a decade. But the Court did not seem to bend. When the Court began to retreat in a few areas, particularly civil rights during the Reagan and Bush years, Congress stepped in to try and check the Court by passing pro-civil rights legislation. By contrast, we see that the president exerts a positive and statistically significant impact, controlling for the other factors. As the ideology of the president moves one standard deviation in the liberal direction, the probability of a pro-civil rights and individual liberties decision increases by .05. The magnitude of that effect may seem small, but given that these are constitutional cases, it is substantively meaningful (as well as being statistically significant). The difference between the impact of the president and the lack of congressional influence lends credence to the notion of the informal alliance of the Court and the president against Congress. That alliance is created in part by design and in part by circumstance. Part of this influence is reflected in the president’s ability to change the ideology of the Court through the appointment process. Perhaps the Court tempers its decisions to ensure that the president will implement them. The greatest influence probably comes through the president’s use of the solicitor general to pursue his agenda in civil rights and individual liberties. Indeed, in civil rights in particular, the differences between the policy positions of the parties are significant, and both Republican and Democratic presidents tried to use their solicitors general to pursue their goals in the Supreme Court.

Notes 1. Pacelle (2006) shows that in most areas of law, like federalism, regulation, and criminal cases, there is no difference in the position taken by the SG whether Democrats or Republicans control the White House. In addition, Bailey, Kamoie, and Maltzman (2005) show that the respect for the SG is highest when the office argues a position that appears at odds with the ideological position of the president. 2. Blackmun was selected to be a consistent conservative vote. In fact, Blackmun would undergo a remarkable transformation, perhaps brought about by his work on the Roe v. Wade decision, and would become considerably more liberal (Greenhouse 2005). 3. According to maps, this is the distance from the front door of the White House to the front door of the Supreme Court. 4. Yet some of the presidents who are on the short list of the greatest fought well-publicized wars with the Court that not only did not harm their presidencies but often helped them achieve their goals and write their pages in history. Thomas Jefferson, Andrew Jackson, Abraham Lincoln, and Franklin Roosevelt all fought battles with the Court, and in most circumstances the Court lost legitimacy and incurred significant costs.

3

The Supreme Court and Congress

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The First Shall Be Last, Will the Last Be First?

Freedom of religion is a bedrock principle of the American nation. Many of the original colonists fled England for religious freedom. It was not an accident that the Framers put freedom of religion in the First Amendment. Nor was it accidental that this freedom was placed at the top of the hierarchy of rights in the First Amendment. Of course, the First Amendment, like much of the Constitution, is written in vague language. So, when the First Amendment claims “Congress shall make no law . . . ” it is not an absolute prohibition. Congress and the states can obviously place some restrictions on behavior related to religion. In Chapter 2, as noted, the Supreme Court was under attack from President Franklin Roosevelt over the Court’s interpretations of his New Deal programs. The Court responded in two ways. First, it apparently capitulated to the president by beginning to uphold components of the New Deal. Second, and of more consequence, the Court announced that it was reinventing itself as an institution. To achieve that transformation, the Court suggested that it would adopt judicial restraint as the guiding principle for economic cases. When the Court reviewed a challenge to a governmental regulation, it would presume the law was constitutional. By contrast, when a law that violated someone’s civil rights or individual liberties was challenged, the Court was going to put the burden of proof on the government to explain why it needed to restrict rights and liberties (Mason 1956; Pacelle 1991). In the wake of what would be called “the double standard,” the Supreme Court promised to put individual liberties and civil rights in a preferred position. Through World War II, the Court wrestled with the appropriate standards against a backdrop of crisis (Beth 1971; Tedford and Herbeck 2009). By the late 1940s, the Court had incorporated the First Amendment, including both the free exercise and establishment of religion clauses, to the states (Cortner 1981). Ultimately, the Court would devise tests that would advocate for a strict separation of church and state and to protect the free exercise of religion (Pacelle 2009). Sherbert v. Verner (1963) was a critical case in the development of freedom of religion doctrine. Adeil Sherbert, a member of the Seventh-Day

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Adventist Church, was fired from her job after she refused to work on Saturday, the Sabbath day of her faith. She applied for unemployment benefits and was denied. The South Carolina Employment Security Commission considered her religious justification for refusing Saturday work to be unacceptable. The U.S. Supreme Court ruled that this was a violation of her free exercise of religion. The denial of benefits placed an unconstitutional burden on the free exercise of her religion (Stern and Wermeil 2010, 178). In the Sherbert v. Verner decision, the Supreme Court held that only a compelling interest could justify a government regulation that would restrict religion. The free exercise of religion would thus get the highest level of protection under the Constitution. There were very few government restrictions that would survive the so-called “strict scrutiny” required of the compelling interest test. For over a generation this was the precedent and standard for deciding cases involving the free exercise of religion. In 1990, the Court overturned this standard. In Employment Division v. Smith, a case involving two Native American drug counselors who tested positive for peyote, the Court rejected the compelling interest in favor of a standard that permitted greater government regulation (Long 2000; Epp 2009). Opposition to the Smith decision was swift and widespread. A broad coalition of religious organizations condemned the decision and joined secular rights and liberties proponents like the American Civil Liberties Union (ACLU) to lobby Congress to reinstitute the “compelling interest” standard. Congress responded by overwhelmingly passing the Religious Freedom Restoration Act (RFRA) in 1993 (unanimous in the House and 97–3 in the Senate). Congress basically told the Court to reapply strict scrutiny and the compelling interest standard of the Sherbert case and another free exercise decision, Wisconsin v. Yoder (1972). This was somewhat unusual because normally the elected branches are not trusted to protect rights and liberties (Peters 2000). Indeed, one of the major justifications for having an unelected judiciary with life tenure is to provide it with the independence to protect unpopular groups and insular minorities from the tyranny of the majority (Pacelle 2002). In this instance, it was the Court that was tampering with individual liberties and Congress that sprung to the defense of religious freedom. How would the Supreme Court react to such a rebuke? Congress was as close to unanimous as possible. The president signed the legislation. Virtually every rights group and every religious organization supported the new legislation. Respected repeat player litigants (who use the Court frequently) offered their support. A number of states passed their own versions of the Religious Freedom Restoration Act. In a case like the Obamacare review, various factors supported each side. There was almost no ambiguity here. Public opinion, specialized opinion, precedent, Congress, and the president as well as past precedent, all supported upholding

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RFRA and a broader conception of individual rights and liberties (Long 2000; Epp 2009). The Supreme Court did not appear to be dissuaded. In City of Boerne v. Flores (1997), the Court ruled RFRA unconstitutional, at least as it pertained to the states claiming that Congress overstepped its authority. The Court acknowledged that RFRA applied to the federal government but not to the states. This has a practical consequence, because most of the violations of freedom of religion will come from states rather than the federal government. In response to this decision, Congress went back to work, unanimously passing the Religious Land Use and Institutionalized Persons Act (RLUIPA). In addition to prohibiting restrictions on the religious rights of prisoners, the act gave churches and other religious institutions a means of avoiding burdensome zoning laws (as in City of Boerne). In initial challenges to provisions of the law, the Court has upheld RLUIPA. In addition, in a series of other decisions, the Court recognized free exercise rights. One of the most notable cases was Church of the Lukumi Babalu Aye v. City of Hialeah (1993). In its decision, the Court struck down a local ordinance that restricted the religious freedom of the Santeria (this case involved the practice of animal sacrifice). The Court did not refute or diminish the Smith precedent but conveniently found a way around it to protect free exercise rights (O’Brien 2004). It appears that the Court quietly capitulated to RFRA and restored Sherbert sub silentio. In a number of decisions, the Court has respected religious freedom and rejected state limitations on those practices (Long 2000; O’Brien 2004). Whatever the practical results of this constitutional conflict, the Court certainly bucked considerable odds in striking down portions of RFRA. That is in contrast to many times when the Court accedes to congressional pressure. Congress and the Court sparred frequently during the tenure of Earl Warren. In one notable confrontation, the Warren Court was reviewing the internal workings of congressional committees. The House on Un-American Activities Committee (HUAC) was busy interviewing alleged Communist sympathizers, asking them about their behavior and their fellow travelers. Typically, the subjects of these investigations would refuse to answer, citing the Fifth Amendment protection against self-incrimination. HUAC refused to accept that response and sent the alleged Communists to prison. In Watkins v. United States (1957), the Supreme Court ruled that there were limits on congressional investigations (Powe 2000). As you might imagine, this decision did not sit well with members of Congress. And just one week later, the Court would add a controversial decision in a criminal procedure case, Mallory v. United States (1957), ruling unanimously that an alleged rapist was not afforded basic protections. This provoked a virulent series of reactions from Congress (Murphy 1962). Members of Congress used their full range of sanctions.

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The Court responded by retreating in Barenblatt v. United States (1959), deferring to the authority of HUAC (Murphy 1962). This scenario of a Court decision (action) followed by a congressional response (reaction) then Court capitulation (retreat) may be a more frequent judicial response than the Court’s defiance after RFRA. To begin this discussion, let’s examine what the “full range” of sanctions entails. As we will see, the congressional arsenal is much more imposing than the resources at the disposal of the president. But the Court does have some structural advantages in dealing with Congress that it does not have with the president. For one, Congress has a collective-action problem. Despite the range of checks it possesses, will the institution be unified enough to impose the sanctions? Not only would it require a majority of the members in each chamber, it takes some unified action by both houses. In the religious freedom cases, there was a loud hue and cry for a response and no meaningful support for the Court’s decision. While the president has fewer resources, he can act decisively. And the results of the models shown in the appendices to Chapters 1 and 2 suggest that the Court is much more cognizant of the president than Congress.

Congress and the Supreme Court “Separation of powers” models pay close attention to the constitutional design of checks and balances established by the Framers. They are predicated on the potential effect of the relevant checks that the branches hold over one another. Like the president, Congress can matter in the Court’s decision making. Congress represents another important component in the Court’s environment—a potentially powerful actor that the Court would be well-advised to consider in making its decisions. (Eskridge 1994). The sun has set on Congress to a significant degree. A look at public opinion polls shows the legislative branch languishing at a less than 10 percent favorability rating far behind its institutional brethren (Rasmussen 2013).1 Members of Congress run against their own institution, contributing to the public discontent. It is said that the institution suffers from 535 self-inflicted wounds (Fenno 1975). Yet at the same time, voters continue to return incumbent members to Congress, particularly the House. Congress works to promote the electoral interest of its members, and they provide particularistic benefits to the people back home (Mayhew 1974; Parker and Davidson 1979). While the institution works well for its individual members, it is no longer an effectively functioning policy maker. Time and events have conspired to rob Congress of its policy-making energy. Massive economic upheaval, technology, war, and security have all promoted rapid and coherent decision making. Congress is unable to react with the speed and decisiveness that current issues often require. Congress has also

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contributed to its own demise by abdicating its authority and prerogatives to the president and the courts (Sinclair 1989; Dodd 1986; Fisher 2000). Members of Congress can avoid making the difficult and controversial decisions, but they reserve the right to criticize those who do. The sequence in the U.S. Constitution establishing Congress as the first of three branches of government was certainly not a random decision (Mann and Ornstein 2006). As Bryan Marshall (2012) notes: The legislative branch would not only give voice to the great variety of policy tastes and intensities in the Republic, but also would regulate its powers from within as well as between the other institutions in order to better serve the public good. To achieve such ends and avoid an overconcentration of power, the Framers’ design established a set of institutional dichotomies with respect to power and politics. Thus, Congress was constructed to be the most powerful branch constitutionally, but at the same time it would be the most dependent upon politics relative to the other branches. The constitutional powers of the presidency are more ambiguous and seemingly less significant than those granted Congress. But over time, the executive branch has gained the upper hand politically, because presidents do not face the same collective-action problems in using their powers as those faced by Congress. The constitutional framework relegated the Court to an even lesser status, initially making it significantly weaker than its institutional rivals but more insulated from politics (Pacelle, Curry, and Marshall 2011). But if Congress lacks the collective will or the institutional ability to make coherent, positive policy, it does not lack the incentive to be vigilant and critical of the prerogatives of its institutional rivals. Congressional oversight is often considered to be more like a fire alarm than a police patrol (McCubbins and Schwartz 1984). The same can be said for the entire mechanism of congressional policy making. It is much more reactive than proactive. The bottom line is that Congress may not be an effective actor in the construction of national public policy, but it still has the power to influence decision making by the president and the Court (Hansford and Damore 2000; Harvey and Friedman 2006). The Framers provided Congress with a number of checks over the executive branch to insure that the president did not accumulate too much power. Even powers of the president, like the appointment process and the veto, are shared with Congress. The legislative branch also had its share of authority over the judicial branch. The authority of Congress over the Court could not be clearer symbolically. For example, in Article III of the Constitution, the “Judicial Article,” congressional power over the courts is invoked no fewer than four times. Congress has a variety of checks at its disposal to help its efforts at influencing the Court. Besides the authority to pass legislation and introduce amendments to overturn

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Court decisions its members find objectionable, Congress controls the budget and can use that prerogative to send a message to the Court. The strongest constitutional power is found in the ability of Congress to control the Court’s jurisdiction. We will examine each of these and see how often they are used and how effective they are. The central government was considerably smaller and weaker before the Great Depression and the New Deal. To the extent that federal power existed and was employed during the first 150 years after the ratification of the Constitution, it was usually exercised by and through Congress. But the nation has witnessed an astonishing swing in the institutional balance of power over time. In the wake of World War II and the Great Depression, congressional government has given way to presidential government. Importantly, practical politics has played a significant role in explaining the changing power relations between branches (Shepsle 2006). The ebb and flow of separation of powers and the evolution of institutional power are influenced by both the constitutional framework and the changing complexion of politics (Moe and Howell 1999). Despite its relatively dominant constitutional powers, the modern Congress seems clearly positioned on the losing end of a zero-sum struggle for power with the other branches. The president and the Court are much less likely to be deferential to the legislative branch. As noted in Chapter 2, the president and the Court have entered an informal but “natural” alliance favoring coordinate construction on their own terms as opposed to those of Congress. Through their power over judicial appointment and implementation, presidents are equipped to shape the future behavior of the Court. But are they better equipped than Congress to exert influence?

The Panoply of Checks In some ways, Congress appears to have more weapons to influence the Court prospectively. For Congress, though, it is more a matter of political will or motivation to use its power. The president’s power over the Court has been compared to a club. When the political incentives are aligned in its favor, the constitutional powers of the Congress are potentially even more intimidating than a club to beat the other institutions into submission. In those relatively rare instances when politics motivates Congress to act as a unified institution, its power may loom more “like a loaded gun in the closet than a blunt club” (Pacelle, Curry, and Marshall 2011). The power of judicial review potentially pits the Court against Congress. We think of judicial review as the ultimate determination of whether a statute passed by the legislative branch meets constitutional muster. But it is more than that. The Court only strikes down a handful of congressional acts. Over the course of our nation’s history, it averages perhaps one a year. More frequently, the Court is asked to interpret the handiwork

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of Congress. Rather than pass the ultimate judgment as to whether the legislation survives, the Court is asked to interpret some key phrase of the document. Consider the legislative process: for a bill to become law, it must survive numerous committees and subcommittees, and the bill must pass both houses of Congress with a conference committee typically resolving any differences between the two chambers. At the end of the process, it will need the assent of the president (or at least avoid a veto). What is the output of the process? The final product will be some amalgam of past proposals. It is normally constructed in very vague language to ensure that it will be palatable to enough people on the committees and on the floor. How is the vagueness resolved? The buck gets passed to the agencies and the courts. Thus, in the end, control over the meaning of the words lies not with the members of Congress but with unelected bureaucrats and judges. Congress can then render its verdict on whether the interpretation has been faithful to its designs. If not, Congress can rewrite the legislation. Although the Supreme Court is thought of as a constitutional tribunal dealing with the interpretation of the provisions of the “Great Charter” (Whittington 2007), many of its cases are statutory and require not an interpretation of a constitutional provision but of a piece of legislation (Pacelle, Curry, and Marshall 2011). Thus, there are many potential chances for interaction and conflict. In the last two decades, Congress and the Court seem to be increasingly on a collision course. The Rehnquist Court has been called the most activist conservative tribunal (Keck 2004). It certainly was not shy in exercising its power of judicial review by striking down acts of Congress. Chief Justice Roberts has urged his colleagues to employ more restraint and followed his own advice by casting the tie-breaking vote in the Obamacare decision (Coyle 2013; Toobin 2012). For Congress, there is typically a tension between politics and power. This tension reflects a significant collective-action problem that oftentimes allows politics to trump congressional willingness to exercise institutional power. Both the executive and judicial branches have taken advantage of the collective weakness of Congress by enhancing their own institutional powers and discretion. Indeed, there is considerable theoretical and empirical work that suggests the Court’s decisions are largely (some argue solely) driven by judicial preferences (the attitudinal model) and free from congressional constraints (Segal and Spaeth 1993; 2002). According to this view, the Court’s independence in decision making results from a lack of willingness on the part of Congress to make decisions, due to collective transaction costs as well as its inability to act to overcome multiple veto points (Segal 1997). Despite the self-imposed constraints, there remains ample reason to recognize the important role of the Congress. The Court recognizes Congress’ significant power and remains strategically wary of how a changing political environment could awaken the

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sleeping legislative leviathan. In this view, Congress presents the Supreme Court with a number of potential constraints. This is thought to be particularly true of statutory decisions, where a simple congressional majority can reverse the Court’s rulings. As a result, most scholars believe that strategic considerations are at their zenith when the Court engages in statutory interpretation (Rogers 2001; Fisher and Devins 1992). When a case is contested and decided on statutory grounds, Congress can reverse the decision relatively easily. Thus, the Court is thought to adjust its preferred outcome in statutory cases to get closer to a decision point that Congress will find acceptable. William Eskridge (1991a, 1991b, 1994) argues that in interpreting statutes the Court does not primarily pay attention to the intent of the Congress that passed the law in question but to the sitting Congress. After all, he reasons, the current Congress is the one who could retaliate.2 A good example of these dynamics is the Civil Rights Act of 1964. Congress struggled for a decade to pass meaningful civil rights legislation. Southern Democrats who normally ran with little or no opposition dominated the committee chairs in both chambers due to their seniority. They were able to block meaningful civil rights legislation, often killing it in committee. Should a bill make it to the floor of the Senate, Southerners could filibuster it to death (Binder and Smith 1997). The few civil rights acts that did pass tended to be minor and largely symbolic. They served to satisfy proponents of civil rights and blunt the momentum toward meaningful change (Pacelle 2003, 75). In the wake of the assassination of President John F. Kennedy, President Lyndon Johnson helped shepherd the Civil Rights Act of 1964 through the House, and Republicans in the Senate helped break a filibuster (Graham 1990). During the hearings and the debate about the Civil Rights Act, the question of affirmative action programs was raised. Fear that the Act would require this extraordinary remedy threatened to create enough opposition to defeat the bill. Senators from every ideological stripe expressed antipathy for the concept. Legislative intent could not have been much clearer. Less than a decade later, the Supreme Court was asked to determine the legality of what was in effect, the basis of an affirmative action program. Opponents claimed that it violated the Civil Rights Act as well as the Fourteenth Amendment in that it was reverse discrimination (Pacelle 2003; Blumrosen 1993; Graham 1990). In the case Griggs v. Duke Power Company (1971), the Court, however, upheld the programs despite the legislative intent to the contrary. Griggs is important in many respects. In addition to being a landmark decision, it created the conditions that made affirmative action all but inevitable. The decision was considered surprising in many senses. The case occurred just seven years after the passage of Title VII of the Civil Rights Act. The legislation seemed rather clear that the alleged victims of employment discrimination would need to show intent to make their case (Graham 1990).

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Because the Court’s decision appeared to be so far beyond the provisions of the Civil Rights Act of 1964, one could argue that the Court was not paying attention to the intent of the Congress that passed the act. Thus, on one level, it appears that the Court did not act in a particularly strategic manner. William Eskridge (1994) argues that the Court did act strategically but in a different manner. He maintains that the Court’s decision was a reaction not to the Congress that passed the law in 1964, but to the Congress that was sitting in 1971. By the time the Court was addressing these issues, the sitting Congress was far more liberal than the one that passed the Civil Rights Act in 1964. Watergate was a crippling blow for the Republican Party, and the voters rebuffed the GOP in 1974 and 1976, giving the Democrats additional seats. After all, it was the sitting Congress that would be responding to the Court’s decision. Further, a Republican Administration through the OSG supported an expansive view of Title VII. Congress never attacked the decision. As a number of justices have argued, when the Court makes a decision and Congress does not move to overturn it, the Court assumes the decision is acceptable (Pacelle 2003). Civil rights has been a frequent source of conflict between Congress and the Supreme Court. Title IX of the Education Amendments of 1972 prohibited sex discrimination in any federally funded or assisted education programs. Grove City College did not directly receive federal funds, but many of its students received federal aid. The Department of Education thus considered Grove City to be a recipient of federal aid for purposes of the act. By virtue of the imbalance of its programs, Grove City was considered to be in violation of Title IX. The college challenged this characterization, and the case ended up in the U.S. Supreme Court. The Burger Court agreed with the college and held that Title IX was not applicable to the school. In a well-publicized campaign, Congress overturned the Court’s decision by passing the Civil Rights Restoration Act of 1988. To complete the complex separation of powers game, President Reagan vetoed the act, restoring the Court’s narrow interpretation of Title IX. But Congress mustered the extraordinary majorities necessary to override the president’s veto (Pacelle 2003). These occasionally pitched battles in civil rights cases provide excellent examples of strategic decision making. Congress, the president, and the Court eye each other warily. The issues are visible, and interest groups as well as the three branches are engaged. These are salient issues to all. According to the model in Chapter 2 (see Table 2.2 in Appendix 2), the influence of Congress on civil rights and civil liberties is limited and in fact not even statistically significant. Why is the Court apparently willing to ignore Congress on such issues? On the broadest level, the Court claims to be the leader when it comes to civil rights and individual liberties. The nature of these issues is such that they should not be left to the elected branches. In this case, and for extended periods of time,

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the political environment that the Court faced was divided government. When one party controls Capitol Hill and another has the White House, the Court is free to find a position closer to its ideal policy preferences because one of the branches will come to its aid if necessary. That was the case when the Court made its narrow decision in Grove City v. Bell (1984). The Court was willing to confront Congress because it was reasonably certain the president was supportive. It is important to contrast these visible, salient, controversial civil rights and individual liberties cases with those based primarily on economic issues. Occasionally, there are battles over economic cases, but more often than not disagreements are settled more amiably. It needs to be underlined that not every reactive congressional provision or Supreme Court decision is designed as retaliation (Pickerill 2004; Sager 2004). The Court and Congress often work together to smooth out problems in judicial decisions or statutory provisions (Hausegger and Baum 1999). Settling disputes over the proper scope of economic cases is done through an iterative process. If the Court misinterprets congressional intent, it often gets corrected or modified in a cooperative manner. It is worth noting that the hand of the solicitor general is also at work in these cases. When the government is the party to a dispute and that case involves the interpretation of a congressional statute, the solicitor general will likely be involved and will be working on behalf of Congress. While we think of the solicitor general as being a presidential appointee and advocating on behalf of the administration, in reality the OSG is frequently aligned with Congress. Having the respected solicitor general argue for Congress certainly enhances the odds of a favorable decision (Pacelle 2003). In contrast to the statutory cases, because Congress can only reverse the Court’s constitutional decisions by the extraordinarily difficult process of constitutional amendment (which requires passage by supermajorities), those decisions are thought to give the Court greater freedom to pursue its sincere policy preferences (but see Martin 2006; Vanberg 2001; Epstein, Knight, and Martin 2001). Yet, even in the realm of constitutional cases, there are reasons to doubt claims of judicial independence. For one, Congress need not challenge the Court’s decisions directly. As an example, Congress was unable to muster enough support for a constitutional amendment to overturn the decision in Roe v. Wade. However, Congress was able to pass the Hyde Amendment to cut off federal funding for abortion. That action, validated by the Court in Harris v. McRae (1980), did not overturn Roe, but it limited the exercise of reproductive rights (Hoff 1991, 302–305). So, while the chances are remote that a constitutional decision will be overturned directly, Congress can engage in what Meernik and Ignagni (1997) call “coordinate construction” of the Constitution (see also Pickerill 2004; Sager 2004; Barnes 2004). Members of Congress and interest groups offer their interpretation of the Constitution to rival

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that of the Court. Bartels (2001, 8) finds that Congress has tried to pass legislation to reverse constitutional decisions in almost a quarter of the instances. Of those attempts, about a third were successful. These are not insignificant numbers. There are important differences in the constraints that are placed on the Court. In the constitutional cases, while precedent and issue evolution may matter, the most important variable is expected to be the policy preferences of the justices. The constraints on the Court are limited. It is difficult to overturn a constitutional decision. By contrast, precedent, issue evolution, and the preferences of the justices should share influence with the president and Congress in statutory cases. Whether the Court is more open to external influence because the constraints are more imposing or because the cases are less controversial and important, it is clear that the calculations for the Court are more complex in the statutory cases. The ability to overturn a statutory decision or propose an amendment or blocking legislation to reverse or lessen the impact of a constitutional decision does not constitute the only resources at congressional disposal. The Constitution gives Congress a number of other opportunities to influence the Supreme Court. Under Article II, the appointment power of the president is subject to the “advice and consent of the Senate.” The power to approve or deny nominations is considered more of a check on the president than the Court, although Congress can certainly use this constitutional power to signal potential displeasure (Steigerwalt 2010). The president may need to nominate a more moderate candidate to avoid a messy confirmation fight. Presidents have a full agenda of policy initiatives, and a protracted battle can derail other essential issues. In the end, the balance of the Court after the vacancy is filled is the key variable. When a president is replacing a justice who shares his ideology, he has more leeway. But when the president is replacing someone from the other end of the spectrum, the result will be changing the ideological balance on the Court, and congressional oversight will be more pronounced (Abraham 2008; Silverstein 1994). Beyond affecting the Court’s composition, Congress has other coercive “sticks” available to it, and some are more consequential than others. For instance, Congress has the constitutional authority to impeach and remove Supreme Court justices, although only one justice has been impeached and no justice has ever been removed from office (Baum 2006, 63). The Constitution gives Congress the power to set the Supreme Court’s size, and though Congress has been reluctant to flex that power, Roosevelt’s Court Packing Plan serves as a reminder of its potential importance. In addition, Congress has control over the budget and can influence the Court through that prerogative.While the Constitution specifically prohibits Congress from diminishing the salaries of the justices during their tenure, it does not proscribe the legislative branch from using its

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budgetary authority as leverage against the Court. The Framers believed that the guarantee that Congress could not diminish judicial salaries, along with the assurance of tenure during good behavior, was critical to maintaining the Court’s independence (Federalist 79). However, Eugenia Toma (1991) contends that Congress uses its “power of the purse” to communicate its general approval or disapproval of the Court’s decisions and doctrinal trends; she calls it a “signaling device.” Congress can send a message by raising the salaries of lower court judges while keeping the salaries of Supreme Court justices where they are (Schmidhauser and Berg 1972). The fact that Congress rarely cuts the judicial budget does not diminish the threat or its potential importance. Toma showed that in the 1946–1977 period Congress tended to reward the justices with raises when the Court’s decisions were more conservative. And members of Congress have not been shy about brandishing the threat. As Tom DeLay once famously stated: “We set up the courts. We can unset the courts. We have the power of the purse” (Miller 2009, 89). While this budgetary power is by no means a decisive check, it is a reminder of one way in which Congress can retaliate against the Court (Schmidhauser and Berg 1972, 16). Indeed, as a controlling device, it is probably only effective at the margins (Toma 1991). But as Toma (1991, 146) notes, “as long as the Congress controls the purse strings, members of the Supreme Court will not be totally autonomous agents.” Chief justices annually advocate for the judiciary and decry the low salaries, substandard facilities, and staff cuts. Many see congressional attempts to cut the budget or hold the line on spending as threats to the independence and professionalism of the judiciary. As Mark Miller (2004, 64) has written, “The appropriations process provides a clear avenue to see the different institutional perspectives of the Supreme Court and Congress.” The Court sees itself as an independent third branch that should not have to grovel for its budget and should not have to deal with threats. From its vantage point, Congress sees the Court as simply another federal agency looking for a maximum budget. To the extent that members of Congress treat the Court as just another supplicant, budget attrition is not a political statement about past decisions but a fiscal one tied to the desire to hold the financial line. Attacks on the Court through the budget are fully intended to send a message of disapproval. Treating the Court as another federal agency is a more passive-aggressive response. It is not motivated by a specific decision, but it shows that Congress views the Court as simply another agency and a political one at that. Congress has one other latent, but almost nuclear, option. The jurisdictional control of Congress over the Supreme Court represents an important potential check on judicial independence. Article III empowers Congress to pass legislation regulating the Court’s appellate jurisdiction. While there is longstanding debate about the scope of Congress’ power

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to curb the Court’s constitutional jurisdiction under the Constitution’s “Exceptions Clause,” its ability to alter its statutory jurisdiction is wellestablished (Lovell 2003). Many of the successful attempts have been conceived in a neutral fashion to assist the Court in handling its growing caseload. But some attempts at jurisdictional alteration were motivated by the desire to strip the Court of jurisdiction to entertain certain classes of constitutional cases. Typically, these court-curbing efforts have been motivated by congressional opposition to a particular decision or series of decisions. Whether Congress can constitutionally strip the Court of jurisdiction over specific constitutional cases is uncertain, and it has not successfully done so since the decision in Ex parte McCardle (1869) right after the Civil War (Fallon, Meltzer, and Shapiro 1996, 365–370). But that has not deterred members of Congress. Many controversial issues reach the Court, and the justices have been all too willing to entertain those cases. Their decisions are bound to provoke a response and have led members of Congress to introduce legislation to limit or deny jurisdiction (Katzmann 1997). Indeed, since 2004, three such court-stripping measures have passed the House of Representatives (Curry 2005). While these efforts have largely been unsuccessful, they are nevertheless consequential. When members of Congress lend their support to such measures, it creates a precedent for attacking the Court and, by extension, its legitimacy, which is its ultimate resource. Such measures poison institutional relations between the branches. As Justice Sandra Day O’Connor (2005, 8) observed shortly before her retirement from the Court, “In all the years of my life, I don’t think I’ve ever seen relations as strained as they are now between the judiciary and some members of Congress.” She went on to note that, “there are efforts being made currently to limit federal court jurisdiction to decide certain issues on an issue-by-issue basis in areas that some members of Congress think that the federal courts should not be involved. That’s . . . worrisome” (O’Connor, 2005, 8). In effect, these attacks undermine respect for the judiciary as an institution. On a few occasions, the Court has retreated in subsequent cases, thus giving Congress a short-term victory as in the HUAC cases (Murphy 1962). Nevertheless, the Court necessarily keeps a wary eye on congressional actions that could undermine its respect and legitimacy—one of the judiciary’s most precious institutional resources. In addition, such a struggle may increase public attention and hemorrhage institutional legitimacy indirectly (Hall 2011; Clark 2011).

The View from Capitol Hill As we have seen, there are a number of channels that the president can use to communicate with the Supreme Court. There are fewer options for Congress. Public statements and legislative intent can be useful conduits, but they have limitations, and some justices openly dismiss the utility

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of legislative intent.3 The Court can get information from the solicitor general. That information is normally treated as very credible. While Congress has a very close relationship with many executive agencies, those agencies typically do not have the freedom to communicate with the Court. Rather the OSG controls the flow of information. Outside groups can file amicus briefs to provide information as to congressional preferences. Members of Congress have a couple of other means of conveying their position to the Court. Most directly, members of Congress, individually or in groups, can file an amicus curiae brief and have done so in increasing numbers (Scourfield McLauchlan 2005). Members can file a brief in order to pursue their policy goals, to help their reelection prospects, or to protect and advocate for legislative power. Judithanne Scourfield McLauchlan (2005) argues that members do not have a great deal of success with the Court when they file amicus briefs, but they serve some purposes that give such briefs value to representatives and senators. Members of Congress can also work at the other end of the process: they may intervene with the president or the Justice Department to urge the solicitor general to adopt a different position in the case (Pacelle 2003). Setting aside the distinction between constitutional and statutory decisions for the moment, strategic models of Supreme Court decision making posit that “justices deviate from their personal preferences when those preferences are not shared by the members of the ruling regime” (Epstein, Knight, and Martin 2001, 610). Justices prefer to vote according to their sincere preferences, but strategic models argue there are constraints on those preferences. If the elected branches find themselves sufficiently dissatisfied with a particular decision, they may respond by overriding it. The result of that override would likely produce a policy outcome at odds with the Court’s preferences. Even if such a decision is not overridden, the elected branches may exercise one or more of their other checks on the Court (Meernik and Ignagni 1997; Pickerill 2004; Barnes 2004). By contrast, had the Court taken these external preferences into account and tempered its statutory or constitutional decision accordingly, no such response would have occurred (Epstein and Knight 1998). Because supermajorities are required to enact amendments reversing the Court’s constitutional decisions, Congress and the president appear to have fewer weapons. Not all analysts believe that the Court confines its strategic considerations to statutory cases, however. Some have suggested that “the sharp distinction between constitutional and statutory cases is flawed” (Friedman and Harvey 2003, 127), and that even if the congressional constraint is more imposing in statutory cases, strategic concerns still remain relevant in constitutional cases (Epstein and Knight 1998, 141). Some analysts argue that the Court may actually be more likely to proceed cautiously in constitutional cases (Epstein, Knight, and Martin 2001). Although the barriers to congressional action appear to be more

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imposing in constitutional cases, successfully overriding such a decision would have much deeper and longer-lasting consequences for the Court’s role in the construction of public policy—it would permanently remove the Court’s ability to shape policy in that particular legal area (Martin 2006). In addition, if a constitutional decision compels Congress to tamper with the Court’s jurisdiction, that would have long-term costs and ultimately could undermine the Court’s legitimacy. In this chapter, I want to examine the differences between statutory and constitutional issues. All of the previous evidence from the other decision-making models in earlier chapters, and the theoretical discussion in this chapter, suggests that the ability of Congress to influence constitutional decisions is going to be extremely limited. But are there some hidden impacts that Congress can bring to bear in the constitutional cases? A number of constitutional amendments have been passed to overturn Supreme Court decisions, but this check is not likely to have any meaningful impact. Rather, it might make sense to take a closer look at congressional threats to alter the Court’s jurisdiction. While measures designed to alter the Court’s jurisdiction are seldom successful, the frequency of their use suggests that members of Congress consider them important resources in sending a message to the Court. This begs the question of whether such measures have an influence on the Court (Clark 2009; 2011; Marshall, Curry, and Pacelle 2014). Much of the separation of powers literature has focused on the primacy of policy preferences and the constraints on the Court depending on the location of various institutional actors within an issue space (Spiller and Gely 1992; Rogers 2001; Bergara, Richman, and Spiller 2003). These separation of powers models have been most concerned with the Court’s statutory decision-making and seldom consider the issue of legitimacy. But it is likely that those two emphases are related. Judicial legitimacy weighs heavily on the Court’s decisions because it is so intertwined with institutional power (Baum 1997; Caldeira and Gibson 1992), but it may be that legitimacy concerns are activated not by anticipating a policy disagreement from Congress but in response to the behavior of Congress in trying to curb the Court. Moreover, it appears that the Court’s preferences to defend and/or promote judicial legitimacy may vary depending on the constitutional or statutory context of its decisions. According to Clark (2009; 2011), Court-curbing serves Congress reelection imperative, and the Court perceives such action as an indication of the public’s support for it as an institution. This public support is directly linked to the Court’s power and legitimacy. In order to protect its legitimacy, the Court may employ judicial review conditionally, depending on the credibility of the signals it receives from Congress.4 In order to uncover the consequences that congressional Court-curbing efforts may have for Supreme Court decision making, I examine the constitutional and statutory civil liberties and rights full-opinion decisions

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of the Supreme Court between 1953 and 2000. I need to incorporate two additional variables to measure the attempts by the House and the Senate to pass Court-curbing legislation. Those variables are discussed in Appendix 3 at the end of this chapter. The goal is to examine the extent to which these challenges to the Court may ultimately influence the dependent variable of judicial decision making, controlling for attitudinal, legal, and strategic variables (Marshall, Curry, and Pacelle 2014). Since the Warren Court, jurisdiction-stripping activity has centered on cultural hot-button civil rights and individual liberties issues, including matters such as school prayer, desegregation, mandatory busing, legislative reapportionment, and abortion. The hallmark of the legislative proposals that sought to challenge the Court’s jurisdiction in these areas was congressional intent to limit and/or remove the Supreme Court’s authority to adjudicate those issues. Many such proposals have been advocated, and a number progressed to committee hearings (Goelzhauser 2012). A handful of these measures even managed to clear one chamber of Congress. However, there is some consensus among scholars that it is the practice of position-taking, as opposed to a credible threat of enactment, that motivates Court-stripping behavior by members of Congress (Goelzhauser 2012; Clark 2009, 974).5 There has been considerable variation in the number of congressional bills proposed to strip the Court of jurisdiction. There is also a clear distinction between the numbers of jurisdiction-stripping bills proposed by each chamber. In particular, the House has historically offered a far greater number of Court-curbing bills as compared to the Senate. Based on the raw frequency of proposals, this suggests that the Court is far more likely to draw the ire of the House than the Senate. In addition to reflecting obvious differences in the size of these chambers, this conforms to the view about the importance of the electoral imperative associated with many of these legislative vehicles, because the House has traditionally been viewed as a more effective conduit for public concerns than the Senate (Fenno 1982; Baker 2008). To evaluate the potential impact of Congress’ most severe check— its constitutional control over the Court’s jurisdiction—I am estimating a model including this additional variable. You can see the results in Appendix 3. In addition to the typical attitudinal, legal, and strategic variables used in previous (and subsequent) chapters, I want to determine if the Court might respond to bold congressional initiatives, even if they have little chance of being passed. A more complete discussion of the variables and the model is found in the appendix at the end of this chapter. The models in Chapters 1 and 2 have suggested that the ideology of the House and Senate has a limited (in the case of the House) or nonexistent (for the Senate) effect on decision making. Thus, the Court does not appear to respond to the policy positions of Congress except for unusual circumstances. What I want to examine here is whether the justices are responsive

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to the behavior of Congress, as measured by Congress’ attempts to attack the Court’s jurisdiction, or is the use of this extraordinary remedy too blunt to induce the Court to temper its decisions. Table 3.2 (found in Appendix 3) compares constitutional and statutory civil rights and individual liberties decisions in the 1953–2000 terms. These are the cases that are most salient to the justices, so it is not surprising to see that the attitudinal variable (the ideology of the Court) has a strong influence on the decisions, whether constitutional or statutory. By contrast, the impact of the legal variables is dependent on the grounds of the case. In constitutional cases, issue evolution plays a significant role, but precedent does not appear to influence the justices. The relative effects of these variables are reversed in the statutory cases: precedent has an influence, while issue evolution does not appear to have a large impact (see Appendix 3 for an extended discussion of these effects). When the cases are decided on statutory grounds, the Court seems very attentive to the president and the House of Representatives. When the veto point is a simple majority, the Court needs to be attendant to the other branches, and in particular, the Court pays attention to the House. In the constitutional cases, the ideology of the president, the House, and the Senate have no influence on the Court’s decision making. That is not surprising. The Court does not fear a policy-based response (measured by ideology) from the elected branches. To overturn such a decision requires an extraordinary measure like a constitutional amendment. So, is Congress a helpless bystander when the Court is making constitutional civil rights and individual liberties cases? The results of this decision-making model (see Table 3.2) actually suggest otherwise. The willingness of Congress to consider Court-curbing legislation appears to influence the Court in its constitutional decisions. When Congress is willing to threaten the Court’s jurisdiction, the justices moderate their decisions. In contrast to the statutory cases, the Court is not responding to the policy position of Congress but to its behavior. Congress could pass such a Court-curbing measure by a simple majority (Marshall, Curry, and Pacelle 2014). If there is one clear conclusion that can be derived from comparing the statutory and constitutional decisions, it is that when it is a constitutional question the Court is relatively free from the constraints that define it as an institution. On the other hand, when the cases are statutory and the decision can be overturned relatively easily, the Court seems much more open to external persuasion. That can be seen in the fact that the president and the House have statistically significant effects, as does precedent. In fact, the issue evolution variable also suggests the impact of the strategic factors. The work of Congress and the president in the passage of legislation often alters the typical patterns of case evolution, and the Court responds not to the difficulty of the case but to the external influence and existing precedent (Pacelle, Curry, and Marshall 2011).

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Examining the earlier models in Chapters 1 and 2, it would not be hard to conclude that of all the factors, Congress had the least influence. The president typically was influential, and the Court paid attention to precedent and issue evolution under most circumstances. By contrast, the Senate never seemed to exert a meaningful influence over the Court’s decisions, and the House’s impact was conditional at best and limited. Even public opinion seemed more important to the justices. But when we delve deeper, we see that Congress has some hidden impact. In the constitutional cases, the policy positions of the House and Senate are not close to being statistically significant. The Court does not need to worry about a policy response, because it would take an extraordinary majority to pass an amendment to overturn the decision. Indeed, when we move over to the statutory cases, the House has an impact on decision making. In the constitutional cases, the House and Senate have some influence, but it is through their behavior rather than their policy stances. Having little recourse to overturn a constitutional decision with a piece of legislation, the House and Senate resort instead to using a more powerful tool—the threat of Court-curbing. Congress can attack the Court’s jurisdiction and if successful can significantly wound the judiciary. Losing such a battle with Congress would have long-term consequences, reflected in a potentially dramatic decline in institutional legitimacy. While the prospects for a successful attack on jurisdiction are relatively remote, the Court seems risk-averse and is influenced by the intensity of such jurisdiction-curbing measures. As a result, the Court tempers its future behavior, tacking to the right to mitigate the threat. These results are important, because they suggest the Court does heed the behavior of such congressional Court-curbing actions and strategically shifts some of its decisions on constitutional cases. More practically, given the salient and relatively important nature of this subset of constitutional civil liberties and rights cases, this influence hardly seems trivial. In the model of statutory cases (Model 2 in Table 3.2 in Appendix 3), however, these same variables do not rise to conventional levels of statistical significance. This suggests that the Court responds more systematically to concerns over its institutional legitimacy in constitutional as opposed to statutory cases (Marshall, Curry, and Pacelle 2014). When the cases are statutory in scope, the Court’s primary concern is with a policy-based response. However, a different pattern emerges when the cases are based on constitutional grounds. In that subset of cases there is no indication that the Court responds to the policy positions of Congress. The results show that the Court’s constitutional rulings are responsive to Congress’ Court-curbing behavior, even controlling for congressional ideology. When members of Congress develop proposals that threaten the Court’s jurisdiction, the stakes are higher and the message is clear: Congress is unhappy, and there is likely some electoral benefit from attacking the Court. Even though the chances of this form of

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congressional retribution are relatively remote, the Court seems responsive to the broader underlying message. Even without sufficient majorities to pass Court-curbing legislation, Congress will weigh in to undermine the Court’s institutional integrity for electoral and political advantage. The results underscore the viability of the strategic model of judicial decision making, although one that goes beyond policy considerations and emphasizes the Court’s defense of its institutional legitimacy. Simply put, the Court responds to different strategic forces under different conditions. In statutory cases, the Court seems to respond strategically to the House of Representatives’ ideological profile. By contrast, in constitutional cases the Court’s response moves beyond ideological considerations and to threats to its legitimacy that emanate from Court-curbing activity. Presumably, this is because the Court recognizes the motivation behind such activity and is cognizant that it may be reflective of waning public support (Clark 2011; Marshall, Curry, and Pacelle 2014). Models that look at separation of powers and strategic decision making seldom consider the so-called “nuclear responses” like altering the Court’s jurisdiction. By concentrating on statutory cases, studies tend to focus on the battles that are contested on relatively equal grounds—two branches of government trying to find a position that is acceptable to both. The justices not only want to exercise their individual policy preferences, but also need to protect their institution’s legitimacy. To be sure, the Court might need to be cognizant of the policy position of Congress when a simple majority can overturn a decision. But when the veto point is an extraordinary majority, does the Court really need to worry about a policy response from Congress? Perhaps these multifaceted attacks have pushed the Court into a defensive, risk-averse posture. The Court likely understands that the chances of a devastating institutional attack are relatively remote, yet its response is not to that possibility—it is to the decaying public sympathy that lies at the root of such congressional behavior. That public support, not its collective policy preferences or even its jurisdiction, is the Court’s ultimate resource (Hall 2011). The sanctions that Congress has at its disposal for reversing or limiting a constitutional decision carry heavier weight. Congress can initiate the amendment process, try to limit the effects of the decision, or strike at the Court’s jurisdiction. The prospects of success are not particularly favorable, but the consequences of such a sanction are potentially immense. Thus, it appears that, in constitutional cases, it is possible that the Court responds less to the perceived policy position of Congress and more to congressional behavior directly targeting the Court. Put somewhat differently, perhaps the Court responds to different sanctions depending on whether the case is constitutional or statutory in nature. Martin (2006) argues that the Court will be responsive to Congress even in constitutional cases because the cost to the Court could be

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extensive. If Congress were successful in amending the Constitution or limiting the Court’s jurisdiction, it would create a precedent for attacking decisions that members did not like. It would probably also cause the Court to retreat in other areas. But more damaging would be the institutional wound on the Court and its legitimacy. Martin (2006) claims that policy reversals have a limited sanction factor and are of short duration. By contrast, a structural or institutional response could be toxic to the Court for a long time.

The House and the Senate There is one stark result in every model that we have examined to this point: the lack of influence of the Senate. The influence of precedent, issue evolution, and the collective ideology of the Court seem to be consistent influences on decision making. The impact of the House and the president is evident in some areas and less important in others. But regardless of the type of case, the policy position of the Senate does not appear to influence the decision making of the Supreme Court. This seems curious, because the Senate appears to be more closely linked to the Court than the House of Representatives. It is the Senate not the House that has the constitutional authority to provide advice and consent on nominations to the Court. As a function of the power of confirming judicial nominees, the Judiciary Committee of the Senate has far more influence and respect than its parallel committee in the House (Fenno 1973). How do we account for this apparent anomaly? The differences between the two chambers explain a good deal of the variation. Given their different sizes, the House needs to be much more formal than the Senate. The two houses have a similar number of committees, but whereas there are 435 members to divide the responsibilities in the House, 100 senators have to serve on all the committees in the Senate. Senators will be generalists, while members of the House are specialists. The relative expertise of representatives may be one of the factors that lead the House to have more policy influence. Members of the House are also closer to the public than their counterparts in the Senate. Representatives serve smaller constituencies and face election more often (Pacelle, Curry, and Marshall 2011). The Senate is also much less likely to introduce Court-curbing legislation, and that may also play a role in the differences (Curry 2005). The fragmentation in the Senate is far more evident than in the House. Individual senators have more influence than their contemporaries in the House (Steigerwalt 2010). The curious availability of the filibuster, which permits unlimited debate and gives the minority strong leverage, changes the notion of a veto point (Binder and Smith 1997). For the House to overturn a statutory decision that it does not like, it need only muster 50 percent plus one. But on the other side of the Capitol building, 41 senators can control the agenda. There is a parallel between constitutional

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issues and the Senate. To overturn a constitutional decision, the House or Senate would need to construct an extraordinary majority (two-thirds to propose a constitutional amendment). In the Senate, for any decision, 60 senators are required to end a filibuster (cloture vote). That may explain, in part, why the Senate’s influence on Supreme Court decision making is limited to exercising the Court-curbing threat. The other important factor revolves around the manner in which Congress becomes engaged in issues. Analysts have talked about legislative oversight and policy making as a function of two processes: police patrols and fire alarms. The notion of a “police patrol” assumes that Congress is proactive and fully engaged in making policy and oversight. By contrast, Congress tends to rely on “fire alarms” when someone else activates the institution; Congress would be much more reactive, responding to interest groups. Most congressional business is transacted via fire alarms (McCubbins and Schwartz 1984). As an external agent, typically an interest group, seeking congressional intervention, the target will typically be a House committee. By virtue of their expertise and fewer committee responsibilities, members of the House get more involved with the subgovernments that tend to dominate decision making in individual areas.

What? We Worry? On paper, the Supreme Court looks very vulnerable to congressional pressure. Because the Court is fundamentally involved in the major issues of the day, the prospects for conflict are relatively strong. Congress has a variety of policy-based and institutional responses that it can use to influence the Court or retaliate against it. And invariably some external groups will try to encourage Congress to launch one of these countermeasures. It is also pretty clear that some members of Congress will be responsive to those entreaties. What resources does the Court have to limit congressional gambols against it? Many of the tactics the Court can use to avoid congressional retaliation are similar to the defensive measures it might employ against a recalcitrant president. The Court can bide its time and show deference on matters that are not salient to the justices, while preserving resources to make the decisions they clearly care about. The Court can ground its decisions in existing law and precedent and use that as political cover. The Court can also attempt to play one branch against the other. While we typically associate the work of the solicitor general with the president because the latter nominates the former, the OSG is often required to represent Congress. Thus, the Court can send messages back to Congress through these channels and through the agencies. The power to interpret statutes and constitutional provisions provides the Court with its greatest source of influence. Of course, judicial review is the most extensive power, and it is typically aimed right at Congress.

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Table 3.1 The Exercise of Judicial Review over Congress by Court: Number of Acts of Congress Declared Unconstitutional Court (Years)

Number

Note

Hughes Court (1930–41) Stone Court (1941–46) Vinson Court (1946–53) Warren Court (1953–69) Burger Court (1969–86) Rehnquist Court (1986–2005)

14 2 1 23 32 36

Led to FDR attack Deference and War Judicial Restraint-Cold War Activism in Civil Liberties Activism mixed with Restraint Most Activist Court?

Source: Epstein, Segal, Spaeth, and Walker (2012).

But it is a power that is not used that often. Table 3.1 shows the use of judicial review to strike down federal statutes by various Supreme Courts since 1930. The Hughes Court was considered activist because of its attacks on the early New Deal, and yet it struck down federal statutes just 14 times. Perhaps as a result, the Stone and Vinson Courts did not make use of the authority. The modern Supreme Court has been all too willing to use judicial review against Congress, often in civil rights and individual liberties cases. The influence that comes from statutory interpretation is the more ubiquitous. It is operable each time a statute is before the Court. Some compare the gestation and passage of legislation to making sausage: you really do not want to know what goes into it. The American political system, particularly Congress, is fraught with multiple veto points. For legislation to become the law of the land it has to survive the obstacles of multiple committees, the influence of leadership, and then the debate on the floor. And if it survives, the same process starts all over in the other house. Then the president has to sign it (or at least not veto it). To get majority votes at each stage, legislation has to be written in vague language (Barnes 2004; Sinclair 2012). The job of interpreting those provisions falls to the bureaucracy and the judiciary, who incidentally are unelected. Statutory interpretation is not as sexy as constitutional interpretation. It is unlikely to make the front page of the New York Times. But the issues will be important to agencies and interest groups who will activate Congress. The Court’s ability to be careful in its interpretation can earn it some credibility with Congress. It is important to remember two things when thinking about congressional-Court relations. First, it is not a zero-sum game. Second, not every dispute is a pitched battle. There is a great deal of cooperation in the shadow of the apparent conflict. There are times when the branches are at loggerheads, and the responses can be meant to overturn policy or attack the other branch institutionally. But more often than not, there is

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an honest attempt to resolve gray areas of the law. The Court makes its best attempt at a reasonable interpretation, and Congress makes midcourse adjustments if necessary. There is no sense that one institution wins and the other loses. Congressional overrides of Court decisions and judicial contraction or expansion of legislative language are not necessarily adversarial processes (Murphy 1964; Barnes 2004). Hausegger and Baum (1999) point out that the Supreme Court occasionally invites Congress to reverse its statutory decisions. The Court and Congress are often partners in piecing together policy. There can be honest disagreements and a desire to solve outstanding problems. Consequently, some of the strategic behavior of the Court may actually be done in the spirit of cooperation (Pickerill 2004). Thus, while Congress can overturn statutory decisions by a simple majority and has a variety of weapons at its disposal to limit the impact of constitutional rulings, Congress and the Court are part of a colloquy that permits them “to promise and deliver more constitutional justice” than either branch alone could provide (Sager 2004, 7). In the end, the Court has a great potential resource to use to blunt congressional opposition. It is the Court that decides the scope or grounds for a case and a decision. Thus, it is often in the province of the Court to narrow the issue in a case so that it is contested on statutory grounds, or to expand it and define the issue as constitutional (King 2007). In the latter instance, the vote necessary to overturn the decision on policy grounds requires an extraordinary majority.

Conclusion Congress has become a peculiar institution. Given its size, it has always been fragmented, having to delegate authority to leadership and committees (Maltzman 1997). But by most standards, the decentralization of Congress has continued almost unabated. Members of Congress have helped fashion an institution that serves their individual goals and reelection activities, often at the expense of the institution’s policy-making capacity. Congress can avoid some controversial issues and let the other branches take the lead. This has been a double-edged sword for the judicial branch. The courts have moved into the vacuum left by Congress and become more activist and engaged in policy leadership. The consequence of this has been that the judiciary is more open to criticism and institutional threats from members of Congress. In economic issues, the two branches tend to work together when there are disputes and disagreements. Executive agencies and the Office of the Solicitor General serve as both buffers and bridges. But in civil rights and civil liberties, the salience and visibility of the issues reduce the room for accommodation. Congress can try to influence the Court on policy grounds, and there seems to be some impact tied to statutory decisions. But most of the important civil rights and individual liberties

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cases are constitutionally based, and Congress’ policy leverage is limited. This requires different carrots and sticks, and the threat posed by Court-curbing legislation provides Congress with the chance to signal its displeasure. In constitutional cases, the Court is influenced not by the policy positions of Congress but by its behavior. The influence of politics and the individual reelection goals of members of Congress have complicated the relationship between Congress and the Court. Michael Bamberger (2000) argues that Congress will occasionally pass what he calls “reckless legislation.” Such legislation is politically expedient and popular, and it is often used as a tool in an election year. But such measures, like the Communications Decency Act (an attempt to regulate content on the Internet), are suspect constitutionally. Indeed, despite its cleavages, the Rehnquist Court unanimously found it wanting. Members reap the electoral benefits of passing such a popular measure and then earn additional credit with the voters by condemning the judicial activism that leads the courts to declare such legislation unconstitutional. These attacks, and indeed the entire process, represent a threat to judicial legitimacy. Ginsberg and Shefter (2002) argue that American politics has devolved to slash-and-burn tactics. They maintain that rather than struggling for governing authority through electoral campaigns, groups, elected officials, and the parties ignore election results and seek to control government through lawsuits, media attacks, and investigations. They argue that this has taken its toll on the polity. They suggest that such inter-institutional combat has toxic effects on the governing capacities of the nation’s institutions. They do not exempt the judicial branch from these harmful trends, and they condemn the increasing use of the courts to make policy decisions that elected representatives would not support through legislation. They argue that judicial activism is often a means of bypassing the democratic process and ultimately could cost the Court legitimacy. There is a belief that Congress as an institution serves the electoral concerns of its membership at the cost of constructing coherent public policy (e.g., Parker and Davidson 1979). This has a number of implications for the judicial branch. Congress’ perceived lack of control on major policy issues has forced, or at least provided the incentive for, the other branches to move into the vacuum and assert leadership. Members of Congress can then rail against the policies that result from the other branches due to the institutional abdication of their branch. Is it rational for the Court to worry about congressional responses to its decisions? The prospects for overturning a constitutional decision are rather bleak. The chances of Congress mustering the majorities and avoiding a presidential veto to pass Court-curbing legislation are also remote. In general, Congress has a collective-action problem. The institution works well for individual representatives and senators, but it is difficult to get meaningful, controversial legislation through the various

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veto points. Members of Congress can derive great individual electoral benefits from criticizing the Court and offering symbolic legislation and proposed constitutional amendments that lack the gravitas to attract a majority. So why should the Court seriously worry about a congressional override (Segal 1997). One answer could be that the Court has seldom pressed the full extent of its powers, thus rarely testing the boundaries. And when it has, the Court has suffered a significant loss in its legitimacy. The decision in the Dred Scott case and the early New Deal decisions exacted a huge toll from the Court. While the chances that Congress could successfully pass legislation tampering with jurisdiction are remote, why does the Court appear to respond? There are three likely reasons. First, it could involve some functional version of “death by a thousand cuts.” Second, it could be more dramatic. The Court may attempt to launch a preemptive second strike. Congress has reacted to a Court decision. Now, the ball moves back to the Court’s court. If the Court stays the course, it invites another negative reaction from Congress, maybe worse than the first. However, an act of contrition can blunt and reverse congressional opposition. Finally, the Court may want to avoid awakening the normally slumbering public opinion. Attacks on the Court raise its public profile and likely take a toll on its diffuse support. The Court’s legitimacy is tied to the public acceptance of its authority. Congress can undermine that in the public consciousness. That would encourage the Court to lend credence to congressional objections. There is more to say about public opinion and the Court in Chapter 5.

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Appendix to Chapter 3

In this chapter I examined the influence (or lack thereof) of Congress on the decisions of the Supreme Court in civil rights and individual liberties cases. I compared the Court’s federal statutory decisions (N = 605) to its constitutional decisions (N = 1526). The statutory cases should provide Congress with a better platform for influence. After all, Congress can overturn a decision it does not like with a simple majority. By contrast, Congress appears relatively powerless to influence constitutional decisions. If the Court wants to launch a policy response to such a decision, it will take a constitutional amendment, which requires an extraordinary majority. On the other hand, Congress can send a message through its behavior by attempting to pass Court-curbing legislation. Such legislation does not require an extraordinary majority, but it sends a loud and clear message of disapproval. Further, it has the potential to harm the Court for a long time and create the momentum for further gambols at the Court’s expense. To examine these different checks, I need to add some variables to the decision-making model. Marshall, Curry, and Pacelle (2014) constructed separate measures of jurisdiction-stripping behavior for each chamber of Congress. In capturing these two independent variables, House Support for Curbing Legislation and Senate Support for Curbing Legislation, Curry (2005) identified all bills introduced by members of Congress between 1953 and 2000 that concerned the elimination of federal jurisdiction over particular classes of constitutional claims.6 Only measures expressing the clear goal of limiting the Supreme Court’s jurisdiction over particular constitutional questions were included in the data. Between 1953 and 2000, 32 such bills (with 122 cosponsors) were introduced in the Senate, and 205 such bills were championed in the House (397 cosponsors). The two variables included in the analyses simply represent the average level of sponsor support per bill for each chamber. More specifically, the average support construct is a computed mean representing the total number of individuals cosponsoring jurisdictionstripping bills in a given Congress, divided by the total number of such bills introduced, and calculated for each respective chamber. Thus, higher

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(lower) mean values of the variable reflect higher (lower) average levels of cosponsor support on jurisdiction-stripping bills. The expectation is that Court-curbing variables—which we have described as challenges to the Court as an institution—will have a statistically significant influence on decision making in constitutional cases. In order to address alternative competing explanations, the analysis uses the factors that I have examined previously, such as presidential preferences, the Court’s ideological position, the ideological positions of the House and the Senate, existing legal precedent, and issue evolution. In addition, I added two variables representing the intensity of Courtstripping legislation in the Congress immediately prior to a given Court term. House Ideology and Senate Ideology are designed to capture the extent to which the strategic behavior behind the Court’s decisions is based on policy considerations related to Congress. The relationship is expected to be positive: as the House and Senate get more liberal, the decisions of the Court should become more supportive of civil rights and individual liberties. By contrast, the measures of jurisdiction-stripping capture the competing signaling rationale that reflects the Court’s concern for preserving institutional legitimacy. As the number and intensity of Court-curbing attempts rise, the Court’s decisions should get less liberal. I anticipate that the relationship between the ideological medians of the House and Senate and the Court’s decisions will be most pronounced in the statutory cases, given the unquestioned prerogative of Congress to override those decisions by simple majority vote. In addition, to account for instances where a case directly reflects a previous decision, I include an On Point Precedent variable in this analysis. In most instances, cases that are “on point” are companion cases to a full decision or matters that reach the Court a term or two after the announcement of a landmark decision. Such cases make up a small percentage of the cases (less than 10 percent). Instances in which there is no on point precedent are coded zero, while liberal and conservative on point precedents are coded +1 and –1, respectively.7 Congressional support for jurisdiction-stripping legislation should provide an important signal indicating underlying levels of institutional support for or opposition to the Court. Thus, the basic expectation is that the jurisdiction-stripping measures should significantly affect the Court’s constitutional decisions. These jurisdiction-stripping proposals come from conservative members of Congress targeting issues in which the Court’s decision posture tilted in favor of liberal outcomes; thus support for jurisdiction-stripping proposals should significantly decrease the likelihood of liberal decisions by the Court. Table 3.2 includes two models of Supreme Court decision making for the 1953–2000 period.8 For ease of comparison, the models are presented side-by-side to assess the relative effects of the variables on constitutional civil rights and liberties cases (Model 1, N = 1,526) and federal statutory civil rights and liberties cases (Model 2, N = 605).

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Table 3.2 The Effects of Court-Stripping Legislation on Constitutional vs. Statutory Decisions, 1953–2000

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Model 1 Constitutional Cases Independent Variable

Θ (S.E.)

Supreme Court Ideology Presidential Ideology House Ideology

3.89** (.54) .25 (.15) .26 (.55) –.13 (1.14) .11 (.07) .99** (.12) –.50** (.09) –.06** (.02)

Senate Ideology Precedent On Point Precedent Issue Evolution House Support for Curbing Legislation Senate Support for Curbing Legislation Constant

–.05** (.02) 1.57** (.27) LL = –907.94 Wald χ2 = 281.68 P < .0000 N = 1526

Model 2 Statutory Cases Δ Prob. Θ Liberal (S.E.) Decision .14 .02 .01 –.00 .02 .46 –.12 –.03

–.04

2.65** (.82) .49* (.24) 1.66* (.82) –3.41 (1.93) .39** (.10) 2.45** (.48) –.24* (.12) –.04 (.04)

Δ Prob. Liberal Decision .08 .05 .05 –.03 .19 .73 –.03 –.01

–.05 (.03)

–.02

.56 (.36)

—

LL = –354.61 Wald χ2 = 120.18 P < .0000 N = 605

Note: (*) = p < .05, and (**) = p < .01. These models were estimated with logit regression using Stata 12.1. Standard errors in parentheses are robust. Simulated probabilities are calculated from 0 to 1 for dummy variables and from the mean plus one standard deviation for continuous variables.

Before I examine the impact of congressional policy positions and Court-curbing behavior on the Supreme Court’s decision making, let’s focus on the influence of the other variables. In Model 1, dealing with constitutional civil rights and civil liberties cases, we find that the impact of the president is muted: it is positive but not quite statistically significant (at the .05 level). On point precedent exerts an important influence on

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decision making but is limited to a handful of cases. The existence of such a precedent enhances the probability of a decision in the same direction by .46. Like the presidential ideology variable, the impact of precedent is not quite statistically significant. In fact (except for Congress), only issue evolution (the difficulty of the case) and the policy positions of the justices have a strong impact on decision making. As the median of the Court moves one standard deviation in the liberal direction, the probability of a pro-civil rights and individual liberties decision increases by .14. These cases are the most likely to reflect the attitudinal model. The issue evolution variable also has a strong impact on decision making in these cases. As the facts of the case get more difficult, the chances of a favorable civil liberties decision declines by .12. Contrast those results with Model 2, which isolates federal statutory civil rights and individual liberties decisions. In this model, the president plays a statistically significant role, controlling for the other variables. Precedent and on point precedent play influential roles. The impact of precedent is quite strong. The existence of a precedent favorable (unfavorable) to civil rights and individual liberties increases the probability of a positive (negative) decision by .19. The issue evolution variable is statistically significant, but has a muted effect on the Court’s decisions. The membership of the Court, as expected, has a positive effect on the Court’s decisions, but the impact is about half what it was in the constitutional cases. This makes sense, as there are considerably more constraints on the justices in the statutory cases. The results reveal that the jurisdiction-stripping indicators for both the House and Senate significantly reduce the likelihood of liberal decisions on constitutional issues. That relationship does not hold for the statutory cases, with neither of these jurisdiction-stripping variables exerting a statistically significant effect. Consistent with prior research (Clark 2009), these findings suggest that the level of congressional support for jurisdiction-stripping proposals does signal information regarding level of support for the Court. Here, the Court’s likelihood of issuing a liberal decision dropped significantly when confronted with institutional resistance from congressional conservatives—in the form of increasing support for jurisdiction-stripping proposals in Congress. Incidentally, this remains true even when controlling for the policy preferences of the Court relative to each chamber of Congress, suggesting the Court-curbing actions do carry an important signal that shapes the Court’s decisions. However, this is only true for constitutional cases—the class of cases least amenable to a direct override. The results indicate that jurisdiction-stripping attempts do provide a signal to the Court. Namely, jurisdiction-curbing behavior significantly alters the Court’s constitutional decisions even when variation in the policy preferences of Congress and the president do not. However, in statutory decisions the results uncover greater effects for ideological measures of

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Congress while jurisdiction-stripping attempts had no significant effect. The results show that ideological divergence between the Court and Congress does not significantly mute these “signals” to the Court. This suggests that the Court may hold its institutional legitimacy above other goals—seeking to defend or preserve its legitimacy regardless of whether or not Congress is ideologically aligned with it (Murphy 1962). As noted, much of the separation of powers literature has focused on the primacy of policy preferences and the constraints on the Court depending on the location of cases within a policy space. Separation of powers models have been most concerned with the Court’s statutory decision making. The response is based on the Court’s anticipation of a potential policy response by Congress. On the other hand, it appears that legitimacy concerns are disproportionately activated by congressional behavior—not merely policy disagreement.9 The results suggest that the Court acts on policy preferences in statutory cases, but for constitutional cases, the behavior of Congress is more meaningful. In order to protect its legitimacy, the Court uses judicial review sparingly, depending on the credibility and tone of the signals it receives from Congress.

Notes 1. Maybe even worse, in the same survey, 65 percent of respondents said that no matter how bad things got, Congress could make them worse. 2. It is important to note that congressional reversals of the Supreme Court’s statutory decisions are unusual and require overwhelmingly high levels of interest and attention on the part of legislators (Note 1958, 337). The recent phenomenon of divided government has contributed to this difficulty as well because, even if Congress passes legislation overturning a statutory decision of the Court, opposite-party presidents may veto that retaliatory legislation during periods of divided government (Fiorina 1996; Peterson 1990). 3. Time for a little wisdom from Justice Jackson on inferring the intent of members of Congress: “I should concur in this result more readily if the Court could reach it by analysis of the statute instead of by psychoanalysis of Congress. When we decide from legislative history, including statements of witnesses at hearings, what Congress probably had in mind, we must put ourselves in the place of a majority of Congressmen and act according to the impression we think this history should have made on them. Never having been a Congressman, I am handicapped in that weird endeavor. That process seems to me not interpretation of a statute but creation of a statute” United States v. Public Utilities Commission, 345 U.S. 295, 319 (1953), (concurring). 4. Goelzhauser (2012) has shown that the frequency of jurisdiction-stripping increases as the Supreme Court’s exercise of judicial review grows. 5. The Court likely expects little risk of having to forfeit jurisdiction as a result of these measures—from a practical perspective, of course, it could simply declare such a measure unconstitutional. Rather, there is likely recognition that such action is being driven by electoral motivations. The connection of such action to the reelection imperative arguably signals deep underlying public concern on a set of issues that members of Congress will promote for their own political advantage. The political payoff to Congress is in the (popular)

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public positions members advance when undertaking jurisdiction-stripping efforts (e.g., Mayhew 1974; Arnold 1990). The Court may be risk-averse as the guardian of its own institutional legitimacy insofar as such signals suggest that members of Congress perceive some incentive in launching political attacks against the Court as an institution. In other words, Congress may actively harness public concern on certain issues and seek electoral reward at the expense of the Court’s integrity. If the underlying public support fades significantly, the Court would not retain the requisite protective legitimacy to withstand further congressional attacks. The correlations between the Court-curbing and ideological distance measures are relatively weak, with the correlations in the constitutional model being –.075 (Senate) and –.115 (House), and –.078 (Senate) and –.145 (House) in statutory cases. This suggests that they are distinct measures. In the analysis, only 7 percent of the civil liberties and rights cases decided on non-constitutional grounds benefited from an on point precedent. If the Court states that the facts in a case are identical to a recent decision and writes something to the effect of “we decide this case consistent with the recent precedent,” it is coded as on point. If the Court makes a decision with a full opinion and then the decision that immediately follows is a much briefer decision with the same vote in which the Court says that it is deciding the current case in light of the previous decision, that is an on point decision. If later in that term or in the next term, the Court makes a brief decision “remanding the case in light of our recent decision in ________,” that is considered an on point precedent. The Court occasionally decides two or more cases together under the banner of one citation. For instance, Brown v. Board of Education really involved five separate cases. The Supreme Court Database would count them as five separate cases. Except for the case involving Washington, D.C. (Bolling v. Sharpe), they would represent a precedent (Brown) and three on point decisions, and then Bolling—which was decided on slightly different grounds and was therefore not identical. The Court made some use of this device for decades to help manage its agenda (Pacelle 1991; 1995). Hearing three or four virtually identical cases takes the Court significantly less time than hearing four separate cases. As the Court’s decision docket has shrunk, it has become much less likely to take these second or third identical cases. Indeed, the percentages have declined from around 15 percent to less than 2 percent in the past decade. Incidentally, the Court still takes and pairs many of these cases, but it increasingly decides them in a two-sentence memorandum or per curiam decision. Such decisions are not part of the analysis, which is confined to full opinion cases. Adding these would dramatically expand (and exaggerate) precedent’s impact (Songer and Lindquist 1996). By using the on point precedent variable, we make certain not to exaggerate the impact of horizontal precedent. The timeframe for this analysis is slightly different than for the previous models—1953–2000 instead of 1953–2007—because of the Court-curbing measures. There were some additional ones after 2001, but with the time lag and lack of some data, I cannot use all of them. In some respects, the distinction is analogous to the distinctions that scholars have drawn between diffuse and specific support for the Court (see Gibson, Caldeira, and Baird 1998; Easton 1965). Like specific support, statutory cases tend to center on Congress’ policy-based responses to particular decisions. By contrast, deficits of diffuse support are thought to manifest themselves via an increased willingness to contemplate more fundamental structural changes in the Court as an institution (see Caldeira and Gibson 1992).

4

The Supreme Court and the Bureaucracy

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Galileo Galilei was years, maybe a century, ahead of his time. As Adam Gopnik (2013, 106) writes of Galileo in 1609: One night in December, he turned it [a telescope he built] on the moon, and saw what no man of his time had seen before. Or, rather, since there were Dutch gadgets in many hands by then, and many eyes, he understood what he was seeing as no man of his time had before . . . Galileo posited that the earth revolved around the sun, supporting the earlier ideas of Nicholas Copernicus. This idea was sharply at odds with a number of tenets of the Catholic Church. John Heilbron (2010) argues that Galileo made needless trouble for himself. Had he argued that his (and Copernicus’) ideas were a theory to be taught alongside the traditional Aristotelian views (a dispute that bears more than a faint resemblance to the argument over the “theory” of evolution today), the Church would not have reacted with the equivalent of a sixteenth-century nuclear option. Indeed, for a generation, the Church took no action. But in the increasingly virulent reaction to the Reformation, the Roman Inquisition, a form of “low-level background terrorism” (Heilbron 2010), ordered Galileo to recant. Ultimately, he did and lived out his life in mental and physical exile. If we have any modern equivalents or comparable battles over science, they lie in the controversies over the theory of evolution and global warming. And the Supreme Court has weighed in on both. As this chapter is about the federal bureaucracy and agencies, let’s examine the latter. In a 2011 survey, over 70 percent of Independents and almost 80 percent of Democrats believed that global warming is occurring. By contrast, barely half the Republicans surveyed believed that this was a problem. Barely a third of Tea Party members believed that global warming was occurring, and over half denied its very existence. This is important for any number of reasons, but for our purposes it underlines the fact that the environment and global warming are political issues in the United States. They

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are not such important political issues that either presidential candidate in the 2012 election dwelled on them, but as the polls were set to open that November, the eastern coast of the United States was hit by a devastating storm. Although most do not connect the effects of global warming to the superstorm called Sandy, it was a vivid reminder of environmental issues. Global warming is not an isolated or a trivial issue. It is a multidimensional or polycentric issue with many ramifications. The policies to combat it have major implications for the economy and jobs, international relations, and indeed the very way we live our lives. Enter the Supreme Court, just after Thanksgiving in 2006, when it heard oral arguments in a complex case, Massachusetts v. Environmental Protection Agency (2007). The case would involve many of the political disputes that mark environmental policy as well as many of the strategic considerations the Court must weigh. The issue of global warming, however, would almost become a sideline of the case. The case involved more than the traditional questions of the expertise of the agency and its applications of rules. The Commonwealth of Massachusetts was charging that the Bush Administration had tied the hands of the Environmental Protection Agency (EPA), a regulatory body. There was widespread criticism of the administration’s dealings with a number of federal agencies, including the EPA. There was a battle between the White House and EPA staff over the agency’s report on global warming. It is not unusual to have significant tension between career agency staff and political appointees (Golden 2000). The EPA staff concluded in an internal memorandum that what the Bush Administration was advocating for the report “no longer accurately represents the scientific consensus on climate change” and would expose the agency to “severe criticism from the science and environmental communities for poorly representing the science” (Freeman and Vermeule 2008). Disregard for the EPA and attempts to limit its enforcement authority did not begin with George W. Bush. Scholz and Wood (1998) argue that there were clear attempts by the Reagan Administration to undermine enforcement (see also Weinberg 1988; Golden 2000). The Clinton Administration was less hostile but was often accused of dragging its feet as well. In each of these instances, as well as during the Bush Administration, members of Congress were attentive and worked as a counterbalance to these efforts. These members tried to engage and arouse environmental groups and the EPA constituency, extended their oversight efforts, and tried to use budget carrots and sticks. They had some positive impact. Every administration exerts some degree of political influence over agency decision making (Kagan 2001). After all, it is the prerogative of the democratically elected president to shape agency policy within the bounds of statutory law (Strauss 2007). Some administrations are more

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aggressive in this regard than others. Yet the accounts circulating about the Bush Administration were of a different scope and scale than in the past: the administration had been charged with altering scientific reports, silencing its own experts, and suppressing scientific information that was politically inconvenient (Freeman and Vermeule 2008, 54–55). The EPA found itself in increasingly difficult straits—pressed on one side by an administration that opposed regulating greenhouse gases, and on the other by experts, both within and outside the agency, who believed global warming required a forceful regulatory response. The EPA could declare that global warming posed a serious hazard and order regulation that would incur the ire of the administration. It could argue that global warming was not a serious problem and invite a backlash from scientists, environmental groups, and members of Congress. The third tack was to do nothing and let the controversy brew. That was, perhaps, the only viable political option for the agency (Freeman and Vermeule 2008). Massachusetts, joined by 11 states (these green states were all blue, by the way), 3 major cities, and a dozen environmental groups (including Greenpeace and the Sierra Club) filed a petition for certiorari alleging that the Environmental Protection Agency “had abdicated its responsibility under the Clean Air Act to regulate the emissions of four greenhouse gases, including carbon dioxide” (549 U.S. 497 at 504 (2007)). The EPA, joined by ten states (eight of which were red in 2012), many of which had large automobile industries or oil reserves and a number of trade groups (like automobile manufacturers and dealers, and truck and engine manufacturers), responded. After all, environmental issues are important policy questions, and often jobs and employment are pitted against environmental regulations as choices a society must make. The lineup of states and groups on each side gave the Court an informal glance at public opinion about the issue. (In Chapters 5 and 6 we will look at public opinion and litigants who use the courts.) The Supreme Court often grants certiorari to hear regulation cases if there is a conflict in lower court decisions. The case may be important on substantive grounds, but the deciding factor may be that one jurisdiction is applying one set of standards while another is using something different. The Court takes the case to resolve the conflict and find one coherent standard. Such a conflict was not possible in this case, because only the District of Columbia Circuit Court of Appeals could hear cases involving the EPA’s enforcement power (Percival 2008, 127).1 However, there was a signal that this case was different and merited attention. Most of the Courts of Appeals cases are decided by three-judge panels, and most of those decisions are unanimous. The Courts of Appeals decision in this case was sharply divided, particularly on the issue of whether Massachusetts could sue the EPA. When there is a non-unanimous decision, it often attracts the attention of the justices (Perry 1991).

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Many of the elements that have been (and will be) addressed in this book were prevalent in this case. As noted, there was the possible impact of public opinion, both general and special. The EPA was following the priorities of the president. Congressional intent in passing the Clean Air Act was an issue in the case. I am using this case to introduce this chapter because it involves the relationship between an agency (part of the federal bureaucracy) and the Court and the political factors that impinge on both. Massachusetts sued the Environmental Protection Agency for what it argued was a denial of the agency’s rulemaking authority in regulating greenhouse gases. Massachusetts and its allies were arguing that the Bush Administration had emasculated the EPA in order to protect big business. There were a number of legal questions at the center of this case. First was the question of whether the door to the Supreme Court would even be open. Does a state have standing to sue the EPA for not enforcing the Clean Air Act? If the Court responded in the negative, the case would not be decided on the merits. Enforcing the rule of access (standing) is an exercise of judicial restraint, in that the Court would not question the decision of the agency, which is the expert, or intrude on presidential priorities, and thus the justices would limit the scope of judicial policy making. The Bush Administration argued that Massachusetts lacked standing to challenge the EPA. If the Court decided to grant Massachusetts standing to challenge the EPA regulations, then two substantive questions would be litigated. First, could the EPA decline to issue emission standards for motor vehicles based on policy considerations not enumerated in the Clean Air Act? And second, does the Clean Air Act give the EPA authority to regulate carbon dioxide and other greenhouse gases? The administration, taking a narrow view of congressional intent, countered that the EPA did not have the authority under the Clean Air Act to regulate these heat-trapping gases. Deputy Solicitor General Gregory G. Garre, arguing for the administration, told the justices that the EPA had “responsibly and prudently” reached the conclusion that “Congress has not authorized it to embark on this regulatory endeavor” (Greenhouse 2006). In essence, the EPA denied it had the authority to regulate greenhouse gases and would not exercise it if it did (Percival 2008). The Court cleared away the jurisdictional underbrush by ruling that Massachusetts had standing to challenge the EPA’s policies. Then the Court confronted the questions directly, ruling that the Environmental Protection Agency has the authority to regulate heat-trapping gases in automobile emissions under the Clean Air Act. The majority further ruled that the EPA could not abandon its authority to regulate the greenhouse gases that contribute to global climate change unless it could provide a scientific basis for its refusal. Justice Stevens, the senior justice in the 5-4 majority, assigned the opinion to himself. He wrote that the only way the

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EPA could “avoid taking further action” was “if it determines that greenhouse gases do not contribute to climate change” or provided a good explanation why it could not or would not find out whether such gases caused climate change (549 U.S. 497 at 533). The primary concern of the majority was that politics had silenced the EPA’s expert judgment. The majority opinion tried “to liberate the EPA from these cross-cutting and paralyzing political pressures, both enabling it to bring expertise to bear on the regulatory problems and prodding it to do so” (Freeman and Vermeule 2008, 65). Stevens wrote that by providing nothing but a “laundry list of reasons not to regulate,” the EPA had defied the “clear statutory command” of the Clean Air Act. He added that a refusal to regulate could be based only on science and “reasoned justification,” adding that while the statute left the central determination to the “judgment” of the agency’s administrator, “the use of the word ‘judgment’ is not a roving license to ignore the statutory text” (549 U.S. 497 at 533–534). The majority dismissed the EPA’s argument that the Clean Air Act simply did not authorize it to regulate heat-trapping gases, because carbon dioxide and the other greenhouse gases were not “air pollutants” within the meaning of the law. “The statutory text forecloses EPA’s reading,” Justice Stevens wrote, adding that “greenhouse gases fit well within the Clean Air Act’s capacious definition of air pollutant.” The majority indicated that they were persuaded by the existing evidence of the impact of automobile emissions on the environment. Stevens noted that the EPA itself “does not dispute the existence of a causal connection between man-made gas emissions and global warming” (549 U.S. 497 at 535–536). The Court was, in effect, telling the EPA that it had to enforce the law. It used judicial activism to ignore a potential standing issue, enhance the scope of an act of Congress, and essentially order a federal agency to be aggressive in performing its duties. The decision, considered a landmark in environmental law, was a major rebuke for the Bush Administration. The administration had put the EPA on a leash, and the Court provided the impetus for numerous environmental groups to use the precedent to push for more aggressive regulation activity (Freeman and Vermeule 2008). The dissent, written by Chief Justice Roberts, did not address the substantive issues of pollution or global climate change. Rather, Roberts argued that neither states nor any of the environmental groups had standing to challenge the actions of the EPA. He added that the majority “has caused us to transgress the proper—and properly limited—role of the courts in a democratic society,” quoting from a 1984 decision. And, quoting from a decision Justice Scalia wrote in 1992, he added, “This court’s standing jurisprudence simply recognizes that redress of grievances of the sort at issue here is the function of Congress and the chief executive, not the federal courts” (549 U.S. 497 at 548–549).2

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We can view the Massachusetts v. EPA decision from a simple attitudinal perspective. The five most liberal justices voted to enforce and expand environmental protection. But there is more to Supreme Court decision making than the simple vote in the case. This case is important because it helps define the relationship between the federal bureaucracy and the judiciary. The question remains whether the decision is part of a long-term doctrinal trend or a short-term decision that was shaped by a set of unusual facts. As in the case of many of the vignettes that start each of the chapters in this book, Massachusetts v. EPA is not a typical case. It is not even the typical regulation or agency-Court dispute. But it does have a number of the elements that define the relationship between the two branches that arguably have most of the power in modern American politics. Although the bureaucracy is part of the executive branch, due to the lack of presidential control it is sometimes considered the “fourth branch of government.” Indeed, the Massachusetts v. EPA decision provides some important insights into the relationship between the federal bureaucracy and the judicial branch. Among the critical issues in the case that I will examine in this chapter are the standards the Court uses (and should use) in evaluating the work of an agency and the tension between politics and administration. In addition, this case demonstrates a number of the outside forces and pressures that confront federal bureaucrats, agencies, and departments as well as the Supreme Court. Before we can fully appreciate how the Supreme Court interacts with the various agencies and departments, we need to understand the environment that federal bureaucrats inhabit. The courts and the bureaucracy share some common characteristics. I will return to the EPA case after I set the context for understanding the bureaucracy and its interactions with the judicial branch.

The Bureaucracy: Perception and Reality I chose “Kafkaesque” for the title of this chapter in part because Franz Kafka wrote of bureaucracy and courts. “Kafkaesque” is often defined as being horribly complicated or having a nightmarishly complex, bizarre, or illogical quality and is usually used in reference to some bureaucracy. The adjective often refers to Kafka’s nightmarish type of narration, in which his characters lack a clear course of action, the ability to see beyond immediate events, and the possibility of escape. The first known use of “Kafkaesque” was in 1946, which coincidentally was the year of the passage of the Administrative Procedures Act, which restructured the federal bureaucracy to avoid some of these problems, but actually created a number more (Nelson 1982). The monumental growth of governmental bureaucracy and the emergence of the modern Supreme Court are loosely related to one another.

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The bureaucracy occupies a curious niche between the legislative and executive branches. The ability of the bureaucracy to balance the competing demands of these two branches also helps to structure the Court’s treatment of the issues that come before it. Over time the Court has used and discarded a number of standards for approaching legal questions involving the bureaucracy. It is important to examine these and how they relate to judicial power. One critical actor who links bureaucratic agencies with the Court is the solicitor general. I will examine the role the OSG plays and develop a decision-making model to evaluate the magnitude of the influence of the solicitor general in cases involving the bureaucracy. It is important at the outset to define what I mean by “the bureaucracy.” The bureaucracy is an amorphous term that can refer to just about everything. For instance, when the Supreme Court announces a decision on the rights of the accused, the police are part of the bureaucracy that must implement it. Similarly, the Court’s health care decision affects a range of bureaucracies, from doctors and health providers to insurance companies and governments at all levels. The lower courts are an omnipresent bureaucracy that is a fundamental part of the Supreme Court’s environment. I will address that particular “bureaucracy” in Chapter 7. For the most part, my discussion in this chapter is going to focus on the institutional federal bureaucracy. Within that context, I will primarily concentrate on the Cabinet departments (the Departments of Education, Interior, Treasury, Health and Human Services, and Justice), the independent agencies (the Equal Employment Opportunity Commission and Social Security Administration), and the regulatory boards and commissions (the EPA, Federal Trade Commission, Securities and Exchange Commission, National Labor Relations Board, and the Food and Drug Administration). One of the critical distinctions between these parts of the federal bureaucracy is the question of the relative independence of the agency or department from political impulses. The departments that make up the Cabinet are seen as being part of the president’s team, and thus the permeability to politics is expected and even welcomed. On the other hand, the independent agencies and regulatory boards and commissions were created with the expressed purpose of removing them from the oppressive reach of politics (Meier and Bohte 2007). Of course, doing that is pretty much impossible. As we will see in Massachusetts v. EPA, this issue of independence from politics made a big difference to the Supreme Court in its decision. The attempt, however futile, to divorce law and administration from politics is a common feature of the bureaucracy and the judiciary. But as we will see, it is just one common element. The parallel development of modern bureaucracy and the modern Court has played a role in defining their relationship. Before discussing the law and politics distinction and the parallel evolution of the bureaucracy and the courts, I will examine the parallels between the two institutions.

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The Courts and the Bureaucracy: The Real Powers? There are a number of similarities between the federal courts and the federal bureaucracy. First, judges and bureaucrats are not elected and have lifetime tenure. This provides them with some insulation and independence from political forces. That independence, however, has been compromised by the development of American politics. The means by which legislation is passed puts a good deal of discretion into the hand of bureaucrats and judges. Secondly, and this was not foreseen by the Framers, judges and bureaucrats have gotten significantly more powerful over time, particularly since the New Deal. The most significant difference between these policy-makers is the discrepancy in their levels of expertise. These factors have a huge influence on the roles that courts and agencies play in American politics and the relationship between the third and “fourth” branches. The goals of providing independence for bureaucrats and judges are slightly different. Each is supposed to have some insulation from politics. Each is supposed to impart some consistency to the law. Judges do this through precedent and the rule of stare decisis. Bureaucrats promulgate rules that are supposed to endure through changes in administration. Both are supposed to have neutral competence, but for the bureaucrats the goal is to have expertise in their particular areas. Passing legislation is very difficult, as I alluded to in Chapter 3. The legislative process is a maze with a plethora of obstacles that takes its toll on most proposals. A successful piece of legislation must navigate one or more committees in each house, survive debate on the floor of the House and Senate, and earn the signature of the president. One means of accomplishing this is to purposely leave the language of the legislation vague to help attract as much support as possible. But eventually the rubber needs to meet the road: the legislation has to be interpreted and implemented. Those tasks fall to judges and bureaucrats who can expand or contract the legislation or change its very focus. The increased complexity of policy making has shifted much of the responsibility for promulgating regulations and implementing directives to the executive agencies. It is a fact of our constitutional system that much of the major work in constructing policy is done by unelected bureaucrats and judges with no tenure clocks. As government has grown larger and become more pervasive, the influence of judges and bureaucrats has grown. And as the power of these unelected actors has grown, the pressure from the elected branches has increased. It is a trait of the modern Congress that it can continue to delegate more and more authority to the bureaucrats, but it reserves the right to critique their behavior. Similarly, the elected branches can shirk their authority over controversial issues and then earn political capital by bashing the Court for filling the vacuum.

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Perhaps the most important distinction between bureaucrats and judges, as noted, is their relative level of expertise. One of the most important factors in setting up the Federal Civil Service System and basing it on merit was to develop expertise that would be a mainstay of the governmental structure. As the world and policy get more complicated, ready expertise becomes even more imperative. Judges, by contrast, are not selected for their policy expertise. They are generalists who must rely on the expertise of others (litigants, expert witnesses, amicus briefs) for help in deciding cases. This will be a critical component in evaluating the relationship between the agencies and the courts. It is an invitation to judicial restraint. The Court is advised to exercise judicial restraint in such cases rather than questioning the expertise of the agencies.

Politics and the Bureaucracy The majority opinion in the Massachusetts v. EPA case makes reference to one of the central dichotomies in understanding government agencies and bureaucratic power: politics versus administration. Like the dichotomy between law and politics, the distinctions are somewhat artificial and the lines of demarcation are hardly clear. Administration (like law) is supposed to be neutral, more scientific, and kept at least somewhat separate or insulated from the realm of politics. Goodnow (1900, 22) asserted that politics and administration could be distinguished as “the expression of the will of the state and the execution of that will.” Politics and administration (like politics and law) intrude on each other, and the desire to separate them was predicated on worthwhile goals. Despite its obvious shortcomings, the traditional dichotomy model endured primarily because it was thought to be a “partially accurate” descriptor of the relationship between elected and administrative officials, and its foundation was based in democratic theory, supplying a normative base for evaluating the degree of behavioral appropriateness (Svara 1985, 221; Rosenbloom 2008). Across this administration-politics divide, there are many dimensions to the political aspects. The civil service system was established in large part to minimize the corrosive effects of the spoils system. The Pendleton Act was designed to limit corruption and provide stability and expertise. That would reduce some of the negative consequences of politics. But politics also has some positive aspects, like accountability and responsibility. The insulation of administration from politics also means that elected presidents and members of Congress may have trouble getting the bureaucracy in line with their priorities (Meier and Bohte 2007). The notion was that administration should involve expertise. The laws are made by those who are elected, and they are administered by the experts who gained their positions as a function of merit. Gradually over time, the administration-politics dichotomy shifted to broader

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conceptions of “political” that included questions of public policy. Ultimately the dichotomy came to be seen as “naïve” at best and “false” at worst (Roberts 1994, 221). Administrative decisions (like legal ones) have winners and losers and are fraught with political implications. Rather than trying to separate these elements we need to acknowledge these as different conceptually but not clearly distinctive empirically. But if the dichotomy seems contrived or exaggerated, it is important to consider that the Supreme Court majority leaned on it as a rationale in Massachusetts v. EPA. An alternative conception of this relationship, sometimes called the model of “complementarity,” is premised on the notion that “elected officials and administrators join together in the common pursuit of sound governance” (Svara 1999, 696; 2001, 179). Politicians and administrators have distinctive and separate roles, yet they also participate in functions that are shared and overlapping (Svara 2007). Classifying politician-administrator roles as complementary addresses the central dilemma, “How can politicians maintain control and, at the same time, allow administrators to maintain their independence to adhere to professional values and standards and to be responsible to the public?” (Svara 2001, 179). While elected officials understand that they can dominate the traditional administrative role, they are constrained by a respect for the competence and professionalism of the administrators. Likewise, administrators understand that they could use the full power and resources at their disposal to become self-directed; however, they are constrained by a commitment to the complementarity relationship. Complementarity helps to ensure that the knowledge and values of those charged with carrying out the work of government inform the knowledge and values of those that set and maintain the course of government (Svara 2001). There is an uneasy tension between politics and law and between politics and administration, and that tension was readily apparent in Massachusetts v. EPA. It has been a normative goal to separate law and politics, but any legal system is nested in the political system it serves and often provides legitimacy for. Similarly, administration cannot be completely neutral and above politics, but the ability to appear to be so can lend credibility to the state. The tension is manifested in a number of ways and reflects the consequences of trying to marry disparate elements. When we think about law and administration, we need to remember that judges and many civil servants are not elected, and yet they serve in a nominally democratic government. The entryway to positions on the bench and to the upper echelons of the civil service is expertise, and yet those who occupy these positions serve the generalists who are elected by the people (Nathan 1975). Thus, these experts are agents serving a political principal. Although the majority opinion in Massachusetts v. EPA never used the term “complementarity,” the ideas behind the concept seemed to be on the

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mind of some of the justices. The majority argued that the Bush Administration had strayed across the politics-administration boundary and was interfering with the professional standards of the EPA and its duty to the public. Freeman and Vermeule (2008, 52) argue that the Massachusetts v. EPA decision is part of the Court’s concerns about the politicization of administrative expertise, particularly under the Bush Administration. They claim that “Justice Stevens and Justice Kennedy have joined forces to override executive positions that they found untrustworthy, in the sense that executive expertise had been subordinated to politics.” Given this concern with the politicization of expertise, the majority’s solution in Massachusetts v. EPA was “a kind of expertise-forcing.” Freeman and Vermeule (2008, 52) define expertise-forcing as an “attempt by courts to ensure that agencies exercise expert judgment free from outside political pressures, even or especially political pressures emanating from the White House or political appointees in the agencies.” They maintained that expertise-forcing is in fundamental tension with one leading rationale of the Chevron doctrine,3 a rationale that emphasizes the executive’s democratic accountability and that sees nothing wrong with politically-influenced presidential administration of executive agencies. Whereas the Chevron doctrine accepts democratic politics and expertise as complementary, expertise-forcing harkens to a more traditional vision of administrative law, one that considers politics and expertise as antagonistic (Freeman and Vermeule 2008, 52). The majority’s suspicion of politics is consistent with the older understanding of the Court’s role. The decision stands in contrast to the more nuanced view of politics found in the Chevron decision. In Chevron, the Court endorsed the notion that political considerations could influence policy decisions by the agency. Forcing expertise is a means of checking a number of “bureaucratic pathologies, including vulnerability to interest group pressure or institutional resistance to a new statutory mission” (Freeman and Vermeule 2008, 52–53).

The Making of the Modern Supreme Court and the Implications for the Bureaucracy The modern administrative state and the modern Supreme Court are essentially part of the same cohort. They suffered parallel growing pains, and their respective development patterns were related. Ultimately, the most important questions involve the dynamics of their relationship. This book, as you are well aware, is about decision making on the Supreme Court. We want to arrive at the standards that the Court uses when evaluating the handiwork of an agency. But I need to place those shifting standards in the appropriate context. We will build to a discussion of the standards by examining the birth of the modern administrative state and the practical realities of the bureaucracy. In the end, the standards are

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a combination of the types of factors we are considering: legal, strategic, and ideological. The growth and development of the modern administrative state was tied to the historical and political events of the time (Skowronek 1982). In the wake of the Great Depression, an old Court constructed by previous administrations of the other party was facing a president and Congress of the opposite party who were trying to deal with an economic catastrophe (Pacelle 1991). The result of their constitutional battle would directly shape the Court’s relationship with the bureaucracy for over a generation, and still influences it today. The changes have taken a variety of twists and turns, many of which were unexpected (Nelson 1982). The relationship between the bureaucracy and the judiciary has often been an organic reflection of those developments. The issue of governmental regulation of the economy during the New Deal era was a significant basis of the partisan realignment that fundamentally restructured the nature of the two political parties and the American political universe (Sundquist 1983). In the wake of the Great Depression, Franklin Roosevelt and a Democratic Congress set out to restructure American government. They created a variety of agencies to regulate the economy. But Roosevelt, as we will see in Chapter 5, was facing a Supreme Court that was antagonistic to his new programs. The Court struck down a number of provisions of the New Deal. This majority left over from previous administrations provoked the ire of the president who threatened the Court. The Court was in a precarious position. Though the Court Packing Plan that Roosevelt had designed to combat the recalcitrant justices did not pass, clearly the Court’s legitimacy was being threatened. More than that, the Court was in danger of returning to its former status as the “least dangerous branch of government” (Pacelle 1991). The Court, backed into a corner, retreated and executed the so-called “switch in time that saves nine.” More importantly, the Court deftly pivoted by moving to what would become the “double standard” or the “preferred position doctrine” and began to focus more on civil rights and individual liberties issues. The Court would adopt for itself a new role (Mason 1956; Pacelle 1991). In the area of economic regulation, the Court would show deference to the elected branches of government. The deference and judicial restraint was a natural reaction. The Court had manipulated itself into dire straits by attacking Roosevelt’s programs. The activism of the Court during the New Deal was seen as hubris (Shapiro 1988, 71). Thus, the Court would adopt a presumption of constitutionality for any economic law. However, the flip side of the double standard was that the Court would place individual liberties and civil rights in a preferred position. Any law or statute that impinged on the rights of insular minorities would be presumed unconstitutional, and the burden of proof would shift to the state to show why it needed such

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a restriction. This preferred position doctrine would come to dominate relations between the bureaucracy and the courts for over a generation (Pacelle 2002). The early economic regulation cases came before the Court not as challenges to the substance of the specific regulations, but as challenges to the very authority of Congress under the Commerce Clause to create the regulation in the first place. These early cases focused on the scope of power of the central government in the federal system. In National Labor Relations Board v. Jones & Laughlin Steel Co. (1937), which also opened the agenda to labor relations cases, the Court began the process of converting federalism cases into issues concerning the substance of the regulation. Once the core issue of federalism had been settled, questions could then turn to the power of administrative agencies and the nature of the regulations themselves (Pacelle 1991). The power of Congress and the central government was enhanced. In what was close to a zero-sum game, the costs were borne by the states that saw their power circumscribed. The emergence of regulation as a policy and judicial doctrine was marked by a number of transitions. First, there was the transition from constitutionally-based federalism issues to statutory regulation concerns. Second, within the general domain of regulation, more traditional types of narrow, individual-level regulation issues were increasingly displaced by newer, broader-gauge regulations. In other words, narrower economic regulation was supplanted or broadened by regulatory schemes that encompassed social activity as well. Third, some regulation cases implicated civil liberties issues, such as free speech (labor cases), due process (in most regulatory issue areas), and search and seizure (administrative searches) (Pacelle 1991).4 A broad range of discretion was granted to these new federal agencies in the charters that created them. The rise of a positive administrative state began the genesis of “government by expert.” Congress and the Court reserved the authority to review the actions of administrative agencies. This placed the Court in a difficult position, balancing the prerogatives of Congress and the administrative agencies. In a sense, Congress served as the court of appeals between the administrative agency and the Supreme Court. In attacking the ills of the economic infrastructure, Congress and the president attempted to regulate major segments of the economy. The problems that plagued the nation were seen as endemic to the economic order and involved the entire range of economic activity. Remedies would have to be broadly based and would need to involve the entire scope of business activity. The successful opening of a policy window pushes a specific issue onto the decision agenda. Perhaps more significantly, it may serve as the impetus for other policy windows that will introduce related issues to the decision agenda (Crenson 1971). Empirically, such spillovers were found

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in Congress as it expanded its scope to involve a variety of related issues. Congress grafted tested regulatory schemes and principles onto related issues (Walker 1977). Congressional legislation and bureaucratic rulemaking are responsible for the questions that eventually materialize in the courts. The task for the Supreme Court in most of these cases is to determine legislative intent, fill in the interstices of the law, and determine whether proper procedures have been followed. Earlier economic questions involved constitutional issues, but once that thicket was cleared out, the Court narrowed its consideration of economic and regulatory issues to avoid constitutional issues whenever possible.

The Evolution of Administrative Law The evolution of the relationship between the Supreme Court and the executive bureaucracy has been shaped by historical events. A modern administrative state develops its procedures and refines them over time. Those procedures are shaped by legislation, presidential designs, and court decisions at all levels, as well as events. The interplay of these forces has created a dynamic body of administrative law. The growth of the federal bureaucracy necessitated the growth and increasing complexity of administrative law (Skowronek 1982). The rules and procedures for the agencies and departments would come from a number of sources. First, there was the authorizing legislation that created or occasionally restricted the agency. Second, the Administrative Procedures Act (1946), or the APA, was created to formalize procedures and apply them to most bureaucratic units. Finally, there were the periodic policies that Congress would pass that would turn rulemaking and implementation over to the bureaucrats (Shapiro 1968; 1988). Administrative law is typically constructed of rules and regulations and administrative decisions. These rules and regulations are constructed by government agencies or commissions. Those agencies are based in the executive branch but derive their authority from Congress. Legislation passed by Congress typically does not go into detail about how the law is to be applied and enforced or the procedures to be used. Rather, this is the role of executive departments and agencies, which promulgate and administer rules and regulations that govern how the law will be implemented (Shapiro 1988; Meier and Bohte 2007). Americans had to invent their own administrative law (Shapiro 1988). This American version was constructed incrementally and in a piecemeal fashion. Shapiro (1988, 37) called it “a game of catch up—reacting to changes in administrative practice or political philosophies.” This would influence the Court in establishing (and changing) the standards of evaluation it would use to assess rules and regulations. (There is more to say about these standards later in this chapter.) Administrative law

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was designed to ensure that government officials were meeting their obligations to serve the public, and it was not always part of a rational, well-conceived design. In this fashion, it resembled the growth of the bureaucracy itself. In his seminal work, Nelson (1982) argues that the development of the federal bureaucracy is fraught with irony. One irony is that reformers’ efforts to make civil service more responsive to political branches have actually made it less responsive. Client agencies created to enhance political representation in government became almost independent from general political branch control. Another irony is that regulatory agencies that were created in response to popular political movements often became client agencies serving (and some would say were captured by) the regulated industries (Nelson 1982). There were two sets of issues that came to dominate administrative law—the appropriate procedures and the promulgation of rules. The APA focused on procedures but said little about the rules. As the bureaucracy got larger and more complex, rulemaking became more prominent. There is a difference between judging procedures and judging rules. Procedural due process is much less controversial than substantive due process. Making certain that the bureaucrats follow established procedures and sanctioning them if they do not is different from having the Court secondguess the agencies and overturn the actual rules they promulgate (Meier and Bohte 2007). The decision in Massachusetts v. EPA had the appearance of judicial activism in that the Court was apparently rejecting the position of the agency. It is complicated, however, in that the Court was uncertain whether the position of the EPA was its sincere preference or was imposed on it by political forces. The Court’s decision to delve into the relationship between the administration and the agency was aggressive policy making by the Court. In addition, as noted, the very fact that the Court permitted Massachusetts to sue the EPA was an activist response. Congress continued to delegate more and more authority to the administrative agencies, and increasingly it placed fewer strings and restrictions on the exercise of that power (Lowi 1969). Congress was responsible for legislative oversight, but that was and is a cumbersome process with no electoral benefits, so it often goes undone (MacDonald 2010). Rather than being vigilant watchdogs, Congress became the reactive hound dog barking in response to events that had already occurred. As McCubbins and Schwartz (1984) have written, it was the difference between “police patrols” and “fire alarms.” Rulemaking has always been considered subordinate policy making (Shapiro 1988). But as the strictures placed on the agencies were lightened, the rules became less subordinate. The state, represented by the bureaucracy, is the guardian of the public interest (Shapiro 1988, 37). That carries a great deal of authority and comes with broad discretion. So, as the federal bureaucracy grew, it became fashionable to ask: Who guards the guardians? Members of

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Congress lack the electoral incentives to conduct meaningful proactive oversight. If Congress were too busy or institutionally unable to exercise such oversight and the president was too burdened wearing the hat of Chief Executive along with a dozen others, who would fill the vacuum? Not surprisingly, it fell to the courts. This spawned ongoing debates over the role of courts in supervising agencies. The independence of the courts was critical. This permitted the courts the leeway to treat the government as just another party and impose the rule of law on its agencies when needed (Shapiro 1988, 36).

Who’s the Boss? Congress or the President? When a case involving an agency or executive department is on its plenary docket, the Court has to consider a variety of factors such as precedent, the facts of the particular case, the legislative mandate, and the procedures followed as well as the rules promulgated. But lurking in the background, if not directly involved in the dispute, are Congress and the president (the key forces in the strategic model that was discussed in Chapters 2 and 3). The relationship between the Supreme Court and the agencies as well as the work of the bureaucracy is complicated by one prevailing fact of bureaucratic life: the curious niche occupied by federal agencies. The federal agencies and bureaus are typically pulled in two directions. On the organizational charts, they are part of the executive branch and thus theoretically subject to the president. Some argue, though, that since the Legislative Reorganization Act of 1946, the agencies and bureaus are increasingly responsible to Congress (Nelson 1982). This poses constraints and provides opportunities for the bureaucracy, but it also complicates its decisions and those of the Court. Some analysts believe that Congress exerts the primary control over the bureaucracy and the president is a secondary actor. Congress can pass legislation, and it holds budget and oversight authority over them (MacDonald 2010). Congress can also use the legislative veto to monitor agency behavior. In return for delegating authority, Congress attaches a legislative veto provision to check the agency’s handiwork (Fisher 1988; West and Cooper 1983). The agencies are considered much closer to Congress by nature of the committee system and their concurrent time clocks (Meier and Bohte 2007). After all, presidents come and go in four to eight years, while the agencies are on the congressional clock. Presidents will typically want to get the budget under control, and that will mean cuts for some agencies and departments. Few agencies want to see their budget reduced or their authority diminished (Golden 2000). None of the interest groups associated with a bureau wants to see the budget slashed, and neither does the congressional committee that is parallel to that bureaucratic entity. In many issue areas, this tripartite relationship between congressional committee (or subcommittee), bureaucratic unit,

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and interest groups has traditionally been referred to as a “subgovernment,” and each of these triangles is considered to be dominant in its particular sphere. They have a symbiotic relationship, with each offering benefits to the other two (Cater 1964; McCool 1990; Freeman 1965; Lowi 1969; McConnell 1966; Heclo 1978).5 Other analysts argue that the bureaucracy provides the most viable avenue for promoting administration policy direction (Moe 1991; Rourke 1991). Presidents have been able to undercut some sources of congressional authority. They share budget and legislative powers, often through clearance procedures (Kiewiet and McCubbins 1991; Lowery, Bookheimer, and Malachowski 1985). Since legislation provides a great deal of discretion in implementation, presidents can assert their policy preferences through strategic political appointments in the executive agencies (Cabinet departments) and reorganization, and to a lesser extent through changes in the leadership of the administrative agencies (independent regulatory agencies) (Meier and Bohte 2007). Those analysts argue that Congress is unable or unwilling to “control” the bureaucracy. First, Congress will seldom exert real budget pressure on an agency. Second, Congress is unwilling to monitor the bureaucracy proactively (McCubbins and Schwartz 1984). There is no electoral incentive for proactive oversight, so Congress works through fire alarms. Though each of those mechanisms are limited, studies show that the bureaucracies are responsive to political forces (Gormley 1989; Meier and Bohte 2007). Terry Moe (1991) argues that federal administrative agencies have become more politicized by the president. The “presidentialization” of the federal bureaucracy has increased over time (Rourke 1991). Analysts argue that the increased control is partially a function of seeking to achieve the goals that the electorate holds the president accountable for. The public’s perception of his ability to govern and the president’s historical legacy may depend on his ability to meet these expectations. Jeff Yates (2002, 48–49) argues that the justices are aware of the presidentialization of the bureaucracy and have supported it. He points to Justice Stevens’ opinion in Chevron. Rather than be a constraint on presidential influence over the bureaucracy, the Court has become a facilitator. Presidents are interested in effective political leadership, and to do this and achieve policy goals they need a responsive institutional structure that will implement their policy preferences in a politicized bureaucracy (Yates 2002, 48). Wood and Waterman (1994) argue that there are a number of mechanisms for political control of the bureaucracy. Congressional control is exercised through the institution or the committees. Presidential control comes through appointments. They examined seven agencies and found some level of political influence in each of them. Influence from either Congress or the president will complicate the task of the Supreme Court in reviewing the handiwork of agencies. Decisions may provoke a presidential or a congressional response or may

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threaten implementation. Having both branches involved can complicate the Court’s dealings with the bureaucracy. It also poses special problems for a generalist Court in dealing with expert agencies (Horowitz 1977). Congress has chosen to delegate extensive power to the agencies and bureaus (Lowi 1969). The vagueness of enabling legislation means that agencies will be called upon to interpret provisions and promulgate rules in furtherance of existing statutes. Inevitably, this is going to lead to judicial challenges to the interpretations (Meier and Bohte 2007). This can cause problems for the Court in balancing the designs of the president, Congress, and the agencies. On the other hand, those potential constraints may give the Court leverage under the proper conditions. For much of the recent timeframe, American politics has been defined by divided government (Fiorina 1996; Mayhew 2005). When divided government is in place, the Court typically has an ally to protect it. Massachusetts v. EPA shows evidence of the conflict between the branches. The Bush Administration was interested in slowing the enactment of regulation, while powerful elements of Congress were animated by environmental groups and sought to pressure compliance with the overall mission of the EPA. The Court’s decision was sure to anger some elements but gain the support of others. Having powerful forces aligned against the Court can be risky, but if those forces are offset by influential supporters, there is room for maneuvering.

The Third Way? Judicial Control of the Bureaucracy The unelected bureaucracy poses a number of challenges to democratic government. A major issue is how to check bureaucracy or exert some level of control. Congress and the president have some resources to bring to bear, but given the magnitude of the task and plethora of other activities they need to attend to, there are limits to their capacity. Courts have also been used in an attempt to impose some measure of control over the bureaucracy. Courts typically will try to square bureaucratic behavior with legislative intent. Courts also seek to make certain that agencies have followed appropriate rules and procedures. Less often, and more controversially, courts will occasionally second-guess the substance of rules (Meier and Bohte 2007). The impact of the courts varies across issue areas. For most of the period of the modern Supreme Court, judicial oversight in civil rights is different from that of economic cases, despite the fact that the federal bureaucracy is involved in both. The Court is more prone to exercise judicial activism when dealing with the civil rights bureaucracy than when dealing with agencies involved in economic regulation. The Court shows more deference to the latter than the former. One of the traits of American government has been the “judicialization” of politics and policy (Tate and Vallinder 1995). While some argue

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that the courts are “the strongest safeguard against maladministration” (Robson 1964, 31), the use of the judiciary to control bureaucratic behavior is not without its critics (Meier and Bohte 2007). The judicialization of the administrative process has had positive and negative effects. Courts are costly and slow. They adjudicate on a case-by-case basis, making the building of doctrine and the development of principles a protracted process. As such they lose the broader perspective (Rabkin 1989; Horowitz 1977). Courts are not effective at monitoring agencies, because they lack the normal communications channels that the elected branches possess. Judges, of course, lack the expertise that is the reason for the existence of the bureaucracy. In general, the costs of using the courts are not uniform. Average individuals (I refer to them as “one-shotters” in Chapter 6) face more hurdles in using the courts than organizations, corporations, and the government (the “Repeat Players” in the judiciary). Having to navigate the procedures of an administrative agency is difficult enough for individuals. The courts pose an additional challenge. While the courts were to be used primarily to help the citizens and claimants with the forbidding process, businesses and agencies have been able to use and even mold the courts to their advantage (Meier and Bohte 2007). Finally, some argue empirically that the courts have just been ineffective in controlling administrative action (Lowi 1969). On a normative basis, it would be preferable to have the elected branches exert effective control over the bureaucracy. Unfortunately, due to different electoral motivations, a diminished capacity to make coherent public policy, or simply a lack of political will, Congress and the president have been less than vigilant. As in numerous areas of law, the courts have been thrust into the breach.

Models of Bureaucratic Behavior The view of the bureaucracy and its motivations are elements that help shape agency policies, influence the decisions of the solicitor general, and ultimately influence the decisions of the Supreme Court. Students of the bureaucracy normally conceptualize the process by which regulatory policies emerge, change, and are implemented as a function of one of three models: bureaucratic politics, subsystem theory, and a principalagent model (Eisner, Worsham, and Ringquist 2006). It is important to understand that the bureaucratic structure is nested in a representative government, and that agencies are theoretically responsive to elected officials (Selden, Brudney, and Kellough 1998). The bureaucratic politics approach focuses on the constraints and opportunities imposed by the organizational setting (Wilson 1989). It accepts the fact that the agency does not receive clear directives or signals from Congress. This provides the bureaucrats and regulators with a

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fair amount of discretion in discharging their responsibilities.6 This perspective argues that policy change is a product of the changes within the organization (Wood and Waterman 1994). Part of that could come from the leadership that a new president puts in place. However, the more entrenched a bureaucracy or the more pressure from Congress and other actors, the less likely the president’s new appointee can change the direction of the agency (Nathan 1975; Eisner, Worsham, and Ringquist 2006, 70). This invites judicial activism and the impact of the attitudinal variable on decision making. The subsystems perspective is the traditional notion of subgovernments (Freeman 1965), issue networks (Heclo 1978), whirlpools of influence, and iron triangles (Cater 1964). While the names and the details may vary, the overall notion is that a series of private actors work closely with public officials to influence public policy. Interest groups work with executive agencies and relevant committees and subcommittees to produce policy through rules and regulations (Smith 1993; McFarland 1987). Such a system may be the logical and inevitable outcome of the pluralist Madisonian design laid out in Federalist 10. McConnell (1966) and Lowi (1969; 1979), among others, feel that this creates a situation where groups are not forced to compete with each other and government is rendered impotent and unable to plan. Some argue that certain regulatory agencies have been captured by the very industries they are supposed to regulate (Quirk 1981). Presidents have tried, generally without success, to break into these subsystems. Of course, the Court is a threat to such a closed subsystem. The subsystems perspective can constrain the Court and suggests a strategic response. The Court has to be careful not to provoke congressional retaliation. The principal-agent theory posits a hierarchical relationship in which a principal employs an agent who is an expert. Because of the costs of monitoring and the information asymmetry, the agent may shirk or pursue his/her own agenda. Principals have to monitor the behavior of the agents to rein in their discretion (Brehm and Gates 1997). The oversight mechanisms are often the proverbial fire alarms that go off when a member of the subsystem perceives an impending problem (McCubbins and Schwartz 1984). Principals, like Congress (and its agents, the committees), can rein in the agents in the bureaucracy through oversight and rewriting legislation (Hammond 1986; Bendor and Moe 1985). The president may attempt to use the budget or staffing to the same ends. And of course, the courts can be brought in to enforce rules (Wood 1988). Still, this theory seems to argue for a legal model and deference to the agencies. The principal-agent model suggests the need for expertise from the agents. There is an expectation that the generalist judges will show deference to these experts. The complexity of the political system suggests that no single model explains the work of each executive agency and its relationship with other

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institutional actors. Rather, different agencies have different dynamics and relationships with the elected branches. Thus, for some issues expertise is dominant, in others the subsystem dominates, and in others it is the more typical bureaucratic politics that defines the area. It is also likely that the dominant mode of decision making may change over time from one form to another. The unique nature of American administrative law and the curious position of the bureaucracy lying in the demilitarized zone between the executive and legislative branches have helped to shape the standards that the Court applied in judging individual cases. Courts are supposed to impose consistency on the law to guide lower courts, agencies, and the behavior of the public. Yet the standards have not been static, and their ebbs and flows can be tied to ideological changes in the Court’s working majorities, as well as changes in the administrative environment. Without a tradition of administrative courts, Shapiro (1988, 37) claims that we have “continually debated the role of our regular courts in supervising administration.” Shapiro (1968, 4–5) also maintains that The bulk of judicial review does not involve courts as superdictionaries carefully defining vague words, but rather judges as reasonably detached men [and women] seeking to discover whether the policies to be found in the agency-provided details are the policies that are or should be those to be found in the broad outlines of the statute. In the next section, we will investigate how the Court exercises judicial review over executive departments and administrative agencies.

The Shifting Standards of Review To fulfill its duties, Congress needed to delegate quasi-legislative power to executive branch agencies. Thus, agencies promulgate rules and interpret the provisions, statutes, and regulations in order to enforce and administer the law. In turn, there are frequent challenges to the administrative rules derived from these delegations. When a rule is challenged, the court must determine how much weight to give to the agency’s interpretation of the law. The expectation is that courts grant deference to agency regulations because Congress has delegated power to the agency to interpret and enforce the laws (Friedman 2012, 117–118). In the wake of its battle with President Roosevelt, the Court, as noted in previous chapters, had been threatened by the president. To stem the threat, the Court adopted a deference to the government in economic cases, while increasingly focusing on civil rights and individual liberties issues. The Court’s first statement of its intent to change its institutional agenda came in a footnote (the famous “Footnote Four”) in the otherwise forgettable United States v. Carolene Products Co. (1938) decision (Pacelle 1991).

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The Supreme Court, more specifically, is in a difficult position when it is asked to interpret regulations or administrative actions. Should courts attempt to exercise their sincere policy preferences, try to divine congressional intent, simply defer to the position of the agency, or rely on precedent? The agency has expertise and often the support, or at least the ear, of a congressional committee. The Court needs to impose some consistency on the law and to permit the agencies to perform their functions. The standards for judicial review of agencies have undergone a number of changes over time, often reflecting the ebb and flow of judicial activism and restraint as well as the discretion of the agency. The first important New Deal era standard came from Skidmore v. Swift & Co. (1944). Under the standard of judicial review derived from Skidmore, the agency would receive neither the strong presumption of validity that attaches under the deferential review of rulemaking nor the suspicion of invalidity that applies when agencies act near the boundaries of federal authority. Instead, the rule or regulation would stand or fall on its own merits. This broad standard was formulated during the nascent years of big government (Pacelle, Curry, and Marshall 2011). Under Skidmore, the Court would consider the quality of the process: the coherence and consistency of its legal interpretations, the collection and consideration of relevant information, and the reasonableness of its judgments based on that information. If the Court found the agency interpretation to be persuasive and consistent with the meaning of the statute, it could adopt the agency’s interpretation as authoritative. Alternatively, if the Court decided that the agency’s interpretation was not persuasive, then it was free to reject that interpretation. Skidmore granted an agency nothing more than the power to persuade, allowing courts to substitute their judgment for that of an administrative agency if the court’s reading of a statute is “better” than an agency’s reading of the statute (Pietruszkiewicz 2006, 4). Although the standard could be used to second-guess the agency, it is not surprising that the Supreme Court would fully exploit it at the time. It was an activist standard that had been birthed in difficult economic times and conceived by justices nominated to protect the New Deal. The Court reserved the prerogative to monitor the agency and intercede if necessary. The Warren Court would ultimately use the standard in a more activist manner, viewing itself as the nonexpert protector of the public from special interests (Shapiro 1988, 71). A renewed judicial activism arose from the courts as a complement to the scope of the new legislation that asked agencies to take more subjective things into account (Rabin 1986). The intermediate persuasiveness standard was political expedience, not a comprehensive assessment of administrative efficiency or a theory of the fundamental role of the administrative state launched in the New Deal. The result was a political compromise that viewed the courts as the interpreters of the law. The Supreme Court articulated a standard that

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favored judicial independence over administrative discretion (Pietruszkiewicz 2006, 4). The Skidmore factors shun deference in favor of de novo determinations by the judiciary, despite the fact that the expertise and experience of the agencies give them a broader perspective of the entirety of a statutory scheme. This seemed to belie the promise of the preferred position that the Court would be deferential in economic regulation cases. The relationship between the Court and the agencies would continue to evolve over time. The Court established a standard of moderate deference to agencies in National Muffler Dealers Association v. United States (1979). National Muffler would permit a court to substitute its judgment for that of the agency only if the latter’s reading did not implement a congressional mandate in a reasonable manner or contradicted past agency positions (Pietruszkiewicz 2006, 44–45). This standard would lean toward judicial restraint but left some room for the Court to exercise activism. Again, this was consistent with the times. The Court, moving away from the activism of the Warren Court, was increasingly deferential and exercised greater restraint (Pacelle, Curry, and Marshall 2011). The Court moved decisively toward a more deferential standard in the landmark Chevron USA v. Natural Resources Defense Council (1984) decision. In Chevron, the Court first articulated what Graham (2008, 1009) called “the iconic” two-pronged test. When a court reviews the agency’s construction of a statute, it considers two questions. First, is the intent of Congress clear? If it is, that is the end of the matter, for the court as well as the agency must give full effect to the unambiguous intent of Congress. If, however, it is determined that Congress has not directly addressed the question, the court does not simply impose its own construction on the statute. Rather, if the statute is silent or ambiguous, the question depends on whether the agency’s answer is based on a permissible construction of the statute. Despite the apparent clarity of this analytical model, the Supreme Court itself has not applied the twopronged analysis consistently (Graham 2008, 1009–1110). The Chevron doctrine stands for the principle that the Supreme Court should defer to a reasonable agency interpretation of a statute when the legislation is ambiguous. The Court had a number of justifications for this position. First, it is the agencies, not the courts, that are the preferable sites for resolving policy conflicts that arise from vague statutory provisions. Second, agency officials bring a more complete perspective, because they have likely been involved in the drafting of the statute. Third, agencies have greater expertise in regulatory areas. Finally, Congress intended that agencies should “fill in the gaps” left when statutes are drafted (Hickman and Krueger 2007). It was a standard that reflected the judicial restraint of the times and limited review. To understand the Supreme Court’s cases in this area across time, and the deference levels the Court has paid to agency interpretations, Vasquez and Lowy (2003, 269) advocate the analogy of a pendulum. A swing to

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the “far left” would represent a court giving an agency no deference, while a return to the opposite side (the “far right”) would be the equivalent of complete deference. In Skidmore v. Swift & Co., the Court held that it would defer to an administrative agency’s interpretation only to the extent of the agency’s “power to persuade.” As such, the Skidmore deference represents the mid-left swing of the pendulum. Skidmore was replaced by National Muffler, in which the pendulum shifted toward the middle. The Court held that a regulation would be sustained if it “harmonizes with the plain language of the statute, its origin, and its purpose” (Vasquez and Lowy 2003, 269). The Court then handed down Chevron with a new standard that shifted the pendulum far to the right, representing broad discretion to the government. In Chevron, the Court held that an agency’s interpretation of a statute is given “controlling weight” unless it is “arbitrary, capricious, or manifestly contrary to the statute” (Vasquez and Lowy 2003, 269). According to Orin Kerr (1998), there has been a great deal of controversy over the Chevron standard. Some argue that Chevron is a “revolution on paper” that has failed to replace the traditional contextual approach to judicial review of agency action. Others interpret Chevron through a political perspective that maintains that the Chevron doctrine is so indeterminate that it is simply a cover for judges who decide cases based on their personal political preferences. The Court was not through tinkering, however. The Court created exceptions to Chevron in different areas of regulatory law. The decision in United States v. Mead Corp. (2000) appeared to swing the deference “pendulum” back to the left, where it originated with Skidmore. The decision in Boeing Co. v. United States (2002) seemed to push the pendulum back towards the middle, akin to National Muffler (Vasquez and Lowy 2003, 269). In Lechmere, Inc. v. NLRB (1992), the Supreme Court held that when interpreting administrative statutes, the Court should defer to its own precedents rather than to the agency’s interpretations of statutes. Thus, the Court determined that stare decisis is dominant over deference to administrative agencies (Goplen 1993, 207). If the Court was faithful to its own precedents, then this would represent the application of the legal model. Of course, proponents of the attitudinal model would argue that this change was instrumental. This revised standard could be used as a shroud to mask the sincere preferences of the justices and couch them in legitimate decisional terms. And this revision came at a time when there was a broader resurgence of judicial activism by the Rehnquist Court (Keck 2004). Have decisions like Massachusetts v. EPA changed the standards of review once again? The EPA decision reflects a very different theory about the role of politics in agency rulemaking than Chevron. One theory holds that science, not politics, should motivate agency decision making. As we saw at the beginning of the chapter, the Court applied this

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“expertise forcing” standard of review in Massachusetts v. EPA when it held that the plain text of the Clean Air Act and scientific data required the EPA to regulate greenhouse gases. The Court ruled that the agency could not refuse to regulate on political considerations, such as concerns that the rule would interfere with the president’s other policy initiatives. The alternative theory, embodied in Chevron and FCC v. Fox Television Stations, Inc. (2009), permits political influence on agency decision making. Particularly in Fox, the Court indicated that an agency may consider political concerns as long as such factors are reasonable and disclosed to the public (Bowles 2013, 591–592). Likely, the Massachusetts v. EPA decision will remain a standard, but one that is only applied in very specific circumstances. The Roberts Court has not applied Chevron consistently (Graham 2008, 1110). The Court seems to be moving away from Chevron (even when its opinions cite it) and back to the earlier Skidmore test, which calls for a case-by-case review of agency interpretation (Graham 2008, 1109– 1110). But even before the tenure of Chief Justice Roberts, the Court has been unwilling or unable to articulate a conclusive or consistent response to the question of how much deference is appropriate. This makes it very difficult for lower courts attempting to determine the proper standard to apply. Historically, the standard was often dependent on the form of the delegation made by Congress and the form and content of the agency pronouncement (Friedman 2012, 118). After following Skidmore for four decades, the Court has seemed to shift standards a half dozen times in the last two decades. Thus, it is not surprising that analysts debate whether Chevron is dead.

The Role of the Solicitor General In Chapter 2, I introduced the solicitor general of the United States as a potential resource of the president. Depending on the political use of the solicitor general, the Office can be used as a check on the Court. However, the nature of the Office is such that attempting to bend the OSG or the individual to the political will of the administration entails serious risks (Wohlfarth 2009). I briefly considered another facet of the OSG in Chapter 3. The OSG also argues cases that involve statutes and legislation so it may act on behalf of Congress. In Chapter 6, we will enter the Office through another door and look at the solicitor general as the ultimate repeat player and the most successful litigant. Figure 4.1 has a visual representation of the unmatched success of the SG in winning cases. The OSG consistently wins over two-thirds of its cases. It is useful to consider the OSG as a bridge between the bureaucratic agencies and the judiciary. In each chapter, I have developed and estimated a model that shows the effects on decision making for the subject of that discussion. To conclude this chapter, I want to introduce the solicitor general into the model. As

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1950

1960

1970

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Figure 4.1 Success of the Solicitor General on the Merits, 1953–2007

noted, the OSG has a significant amount of influence over agency litigation. As regards the bureaucracy, with a few exceptions, federal agencies and departments cannot proceed with litigation without the approval of the solicitor general. When the agency loses a case, it is very likely that it will want to appeal that verdict. But the agency must gain the permission of the OSG in order to proceed. Suffice it to say, the goals and calculations of the solicitor general may be very different from those of the agency or department (Salokar 1992; Pacelle 2003; Ubertaccio 2005; Black and Owens 2012). The relationship between the agencies and the Supreme Court is mediated through the Office of the Solicitor General. Agencies play a central role in shaping the contours and effects of statutory law, but much of that work is in the shadow of the law (Lemos 2009). Agencies and departments ply their trades by promulgating rules and interpreting statutes. On numerous occasions their actions will be challenged, and the dispute will end up in the judicial branch. If the agency wins in the lower court, it can continue with its activities. However, if the agency loses, it must modify its behavior or appeal the adverse decision. The OSG assembles information from the agency, knows the position of the president, may get some direction from the congressional committees of key legislative operatives, and assesses the relevant case law and precedents before deciding whether to seek a writ of certiorari and how to frame the argument.

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Agencies will want to contest almost every lower court loss they suffer, but the OSG is reluctant to spread its resources too far. The agency can try to go over the head of the solicitor general to the attorney general or even to the president. The agencies can also use their normal channels of communication with House committees. Members of Congress can then intercede on behalf of the agency and can even file an amicus brief (Scourfield McLauchlan 2005; Spill Solberg and Heberlig 2004). The agency will have its opportunity to make its case with the solicitor general. The president will also have his views vetted. But in the end, it is the determination of the OSG that carries the weight. Because the OSG is free to say “no” to the president and the agency, it has earned a great deal of credibility with the Court. When the agency is involved, the government is typically a party to the case and applying for certiorari (as the moving party). The OSG has hundreds of cases at its disposal, and it carefully screens them before deciding which relative handful will be filed seeking writs of certiorari. Because the OSG is so conscientious and has a history of careful screening, it has become a brand name that the justices trust (Cooper 1990; 1993). The role of the OSG again underlies the distinction between politics and administration, while also highlighting the obvious overlap. The agency claims the expertise to make substantive judgments. The political forces in the elected branches might want to see certain cases advanced or buried. The decision to proceed, and what grounds to use to argue the case, will have to be filtered through the solicitor general, who has to balance the legal, administrative, and political dimensions of the issue. Table 4.1 captures a snapshot of economic regulation decisions and can be found in Appendix 4 at the end of this chapter. The subset of cases that I am using in this chapter involves the work of Cabinet-level departments like Health and Human Services, Commerce, and Labor, and bureaucratic agencies like the Internal Revenue Service (IRS), the National Labor Relations Board (NLRB), and the Securities and Exchange Commission (SEC), among others. To proceed with the next model I need to add another variable, the position of the OSG in these economic cases. I start with the hypothesis that the position of the OSG will have a strong influence on the Court’s decisions. The results of the analysis are markedly different from anything else we have seen to this point. None of the ideological variables approach statistical significance. The attitudinal variable (the ideology of the Court) does not influence the decisions in these issues. In other words, the Court does not decide these cases on the basis of its collective sincere policy preferences. Regardless of how liberal or conservative the Court is, the decisions tend to be consistent. Indeed, many of these decisions are unanimous, reducing the impact of the attitudinal variable. In addition, the Court does not seem to be influenced by the ideological leanings of either house of Congress or the president. Public opinion appears to have a

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small but perceptible effect on the Court’s regulation decisions. I will develop this discussion further in Appendix 4. The most important influences on the Court’s decisions in these regulation cases are precedent and the solicitor general. Precedent and the OSG are both aimed toward the same ultimate goal: insuring consistency in the law. Therein lies one of the most important messages of this chapter. These cases, which involve regulatory behavior by bureaucratic agencies, are less salient to the justices. Thus, their sincere policy preferences are not reflected in the decisions. The justices do not take these cases because they are interested in a particular outcome. Rather, they are trying to settle lower court conflicts and stabilize the law. The greatest substantive impact on these decisions comes from the solicitor general. The results confirm what analysts have long hypothesized: the Court is very attentive to the position advocated by the SG. How do we explain these results in the context of understanding the relationship between the Court and the bureaucracy? Theoretically and empirically, the president may not be a major factor in the Court’s concerns. Indeed, the impact of the president on the Court’s decision making in such issues appears to be essentially nonexistent. Controlling for the other variables, the impact of the president is not statistically significant or even in the right direction. Some of this could be a function of the overwhelming impact of the solicitor general. But it is clear that the OSG is not simply doing the bidding of the president in these cases. In fact, the simple correlation between the ideology of the president and the position adapted by the solicitor general is quite small (r = .13). These economic and regulatory issues are a little less salient for the president. But perhaps more importantly, regardless of the positions that presidents expound, the OSG is going to try to help impose some consistency on doctrine. The position of the OSG in these cases is relatively stable over time, regardless of administration. In these cases, the solicitor general is more the attorney for the agencies and the government than for the White House. Though Republican presidents may want to limit or reverse the reach of regulation or argue for devolving government back to the states, the agencies and the OSG have a commitment to upholding the regulatory authority and the prerogatives of the central government. Thus, the Court pays much closer attention to the OSG in these cases than to the president. The fact that the solicitor general, regardless of party, tends to support government regulation also limits the potential harm to the Court (Bailey, Kamoie, and Maltzman 2005; Pacelle 2003). Some studies (Bailey, Kamoie, and Maltzman 2005; Wohlfarth 2009) show that when the SG takes a position seemingly at odds with the administration, the Court is more likely to respect it. Then there is the tension between presidential and congressional control over the bureaucracy. This may explain why the president and Senate exert no influence. The influence of the House

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on decision making almost certainly results from the impact of its committees and their proximity to executive agencies and interest groups. The impact of Congress, particularly the House, is not surprising. Congress is closer to the agencies, and the House starts revenue and tax bills. The relevant committees and subcommittees probably have the most impact over the agencies. Indirectly, they may also have the most strategic impact. As an agent of the institution, the committee will make recommendations that will likely be respected by the House (Maltzman 1997). The influence of precedent and the OSG speak to the need for the Court and the solicitor general to stabilize the law. Regardless of which party occupies the White House and what its priorities might be, the OSG is likely to advocate for the regulatory authority of the national government. In the economic cases, more generally, the Court is often interested in settling lower court disputes (Pacelle 1991). Following precedent is more important than a particular result. The influence of precedent is quite strong and interestingly holds despite the difficulty of the case. Finally, there is the success of the solicitor general: victories in over 70 percent of the regulation cases, and just shy of 80 percent when the government is the moving party and thus able to set the agenda. Is the OSG so successful due to its excellence as a litigant in writing briefs and arguing cases? Alternatively, it could be a function of a different kind of excellence. The success of the OSG may be traced to its strategic decision making. It knows the right cases to pursue and can avoid those that could lead to negative precedents. Likely, the answer is some combination of the two. We will examine the excellence of the OSG in Chapter 6. The bottom line is the OSG gets to help in constructing administrative law policy given the frequency of its activity and the fact that the government’s record is “abnormally successful” (Cohen and Spitzer 2000, 412). The Office weighs its chances of success, executive agenda, agency priorities, limited resources of the government, and crowded dockets (Rossi 2000). Winning is not the sole concern. The OSG wants to build reputation and credibility. As a result, it does not pursue every case. In fact, it is estimated that it rejects five requests for every one it grants (Rossi 2000, 462). The OSG helps the Court by consolidating the government’s litigation, coordinating agency appellate concerns, and mediating conflicting agency interpretations before they reach the justices (Rossi 2000). Still, the appropriate division of labor between courts and agencies is a recurring question (Lemos 2009, 186). There are frequent debates over the amount of deference that the courts (and by implication the OSG) should show an agency’s interpretations. The SG is a generalist, and that might suggest greater deference to the agency. The OSG is not a policy-maker (though clearly its decisions have implications for policy). When the OSG argues before the justices, it is a generalist talking to other generalists. Thus, the agency gets a double dose of legalism—from the SG and then from the courts (Lemos 2009).

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The government seeks a unitary voice by organizing its litigation under the auspices of the OSG (Devins 1994). That provides a number of advantages, but it may reduce the distinctive voice of the agency (Lemos 2009). It may also violate the autonomy of the so-called “independent” agencies (Devins 1994). The role of a bureaucracy is to provide expertise. But centralizing litigation under the OSG means that the final say will be a court-centered view rather than an agency-centered view (Lemos 2009). The results of this decision-making model are suggestive of the tensions between administration and politics. The Court listens to the SG, who nominally represents the agency. Following the recommendation of the OSG and adhering to precedent suggests the impact of administrative and expertise concerns. The impact of politics is muted a bit by the absence of the president or Senate. There is also the tension between the Court’s standards. Should the Court defer to the agency or exercise its own prerogatives? We see some evidence of the Court’s ideology playing a role. But at the same time, the agencies win the vast majority of the cases, suggesting some level of judicial deference. That creates the conditions for a heightened sense of legitimacy for the Court as well. The results of the model show the impact of precedent on the Court’s decisions in the economic cases. Because the Court has defined these cases as less substantively important, it has exercised judicial restraint in dealing with them. In choosing a standard that focuses on deference to the agencies or relies on precedent, the Court uses legitimate and acceptable grounds for its decisions. The strong impact of the OSG also has some instrumental and practical effects. The Office is a bridge or linkage between the agency and the Court. In advancing the agencies’ cases, the OSG carries messages to the Court. The agency’s position has to be vetted and cleared by the Solicitor General, and the Court trusts the messenger. Maybe just as important, but less visible, is the fact that the bridge goes in two directions. The OSG carries messages back to the agency. The Court and the OSG are partners in a process of imposing consistency on the law so that agencies and their clientele will know the appropriate boundaries.

After the Decision: The Bureaucratic Response The preponderance of the discussion in this chapter has focused on how the Court deals with the bureaucracy and evaluates its performance. There is an additional facet to consider. How does the agency react to the decisions of the Court? Whether the Court is deferential to the agency or decides to substitute its collective judgment for that of the experts, the decision will have implications for the bureaucrats and the agency. Courts have played an increasing role in policy implementation over the past 70 years. As the president and Congress give increased discretion to the bureaucracy, they ultimately grant more influence to judges

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with jurisdiction over administrative decisions (Shapiro 1968, 212–213). Briefly, I want to close the chapter by examining how faithfully agencies comply with decisions of the Court. Looming in the background of the dynamics of the relationship between these unelected policy-makers are the normative questions regarding unelected policy-makers and questions about the representative nature of the bureaucracy and the Court. Many of the concerns about the power and accountability of unelected judges are also relevant considerations for unelected bureaucrats. Bureaus or agencies are seen as being out of control because of their expertise, the complexity of their decisions, vague legislative mandates, and their perceived insulation from political forces. This leads to an information asymmetry between bureaucrats and political forces that have difficulties in oversight and monitoring (Spriggs 1997, 569; Howard and Nixon 2002, 918). The Supreme Court is also seen as distant and potentially beyond control because of similar factors. Just as numerous studies of strategic decision making and separation of powers models show that the Court’s decisions are influenced by the other branches, the law, and public opinion, studies show that agencies are influenced by Congress, the president, and the courts. Howard and Nixon (2002, 907) argue that the headless fourth branch of government is subject to democratic control. Further, their study shows that the courts provide an additional measure of control over bureaucratic behavior. Agencies are obligated by law to change their decisions to conform to the Court’s opinions. But implementation is a political process, and agencies may shirk their responsibility and be less than faithful in executing the Court’s rulings. The Supreme Court has limited ability to compel faithful adherence to its dictates. Bureaucracies are more likely to comply with the decisions when the environmental conditions favor the Court and thus raise their costs of noncompliance. Studies show that while agencies have a certain amount of autonomy (like courts), agencies (again like courts) are responsive to political control (Spriggs 1997, 569). These studies suggest that the fear of unfettered bureaucracies is exaggerated (Howard and Nixon 2002, 919), and the scope and span of administrative law means the courts and agencies will interact frequently. Even when the Court issues legal rules adverse to agency interests, government bureaucrats usually faithfully interpret and implement them (Spriggs 1997, 578). Brandice Canes-Wrone (2003, 206) found evidence that the composition of the Court has a significant effect on bureaucratic decisions. James Spriggs (1997, 567) finds an almost total lack of defiance or evasion by bureaucrats when implementing Supreme Court directives, which he thinks stems from the interdependencies between federal agencies and the Court. If agencies and bureaucrats have the expertise, have competing principals, and a great deal of autonomy, why are they are so reluctant to exercise their potential authority to the fullest? Spriggs (1997, 567) argues

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that legal rules are important—they set up referents for behavior and encourage compliance. The Court crafts decisions to guide agency behavior. These rules interpret statutory mandates, constitutional provisions, bureaucratic regulations, and procedural fairness, and they establish models for agency behavior by identifying acceptable courses of action. Bureaucracies comply based on the costs and benefits of alternative ways of responding to the courts. This is not unlike the forces that compel presidents and Congress to comply and implement Supreme Court decisions that they oppose. These legal rules influence strategic decision-makers through two mechanisms. First, the opinions of the Court provide information to allow institutional players to formulate expectations about the actions of those they are interacting with. Second, the decisions convey sanctions by signaling what courts and litigants will do in the future, thus informing the bureaucrats about the possible consequences of their actions (Spriggs 1997, 570). Bureaucracies are repeat players (which we will address in Chapter 6) and will comply more readily if they foresee long-term interaction and value future relations. Spriggs (1997, 573) refers to this as a “high discount factor.” While there are normative bases to comply with Court decisions, there are practical reasons as well. Bureaucrats are more likely to comply when the costs are clearer and more credible and when they understand that a failure to comply will be sanctioned. In addition, compliance will often depend on the strength and resources of the opposition. Repeat players have a large incentive to monitor agency behavior to make certain that Court decisions they favor are properly implemented. In particular, bureaucrats have strong incentives to avoid litigation in part because it drains resources, but also because it imposes another decision-maker on the agency’s turf (Canes-Wrone 2003, 205). Agencies and those who populate them understand that the chances that the Supreme Court will review their handiwork are relatively small. However, like the Supreme Court responding to the unlikely threat that Congress will tamper with its jurisdiction, the agencies are apparently risk-averse. The normal pattern of compliance did not occur immediately in the wake of the Massachusetts v. EPA case. Critics claimed the Bush Administration simply sought to run out the clock and refused to respond to the Supreme Court’s remand order. The Obama Administration inherited this obligation, and when it sought to respond to the court orders, some Republicans in the House and Senate accused the EPA of conducting, in the words of one representative (John Mica R-FL), “a regulatory jihad” (Patterson 2011). Republicans in the House and Senate introduced legislation to strip the EPA of its authority under the Clean Air Act to regulate greenhouse gas emissions. Of course, in the four years between the Massachusetts v. EPA decision and these legislative efforts, the roster of supporters and opponents has undergone some change. Democrats,

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who narrowly controlled the Senate, had been able to kill such proposals in committee. President Obama not only opposed these limits, he has helped the EPA toughen its standards and enforcement.

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Conclusion When they constructed the Constitution, the Framers borrowed heavily from a number of political theorists. From Charles Secondat, the Framers borrowed the idea of separation of powers. Of course, we know Secondat better as Baron de Montesquieu (who like Bono, LeBron, Madonna, Plato, Aristotle, and Fenton7 is famous enough to be known simply by one name). The legislative branch would make the laws, the executive branch would implement them, and the judicial branch would interpret the work of the other two. If we could bring the Framers back to see their handiwork, what would they think? My guess is they would be shocked by a number of things, and perhaps nothing would be as alien to them as the size of the national bureaucracy and the activism of the Supreme Court. The bureaucracies and the courts are more powerful than most would have envisioned. There are certainly some discrepancies between the ideal and the real, the normative and the empirical. In defending the creation of a federal judiciary, Alexander Hamilton argued that it would be the “least dangerous branch of government.” If that ever was true, it is certainly not so today (Pacelle 2002). Similarly, the modern bureaucracy has attained a great deal of power. According to Nelson (1982, 774), the “grand irony” of the evolution of the American national bureaucracy is that “repeated efforts to bring government under political branch control have enhanced the power of bureaucracy.” Second, the controversy over much of the social and political agenda of the post–New Deal period has extended the reach of government. Presidents are on a short electoral leash, and members of Congress have become, in the words of David Mayhew (1974), “single-minded seekers of reelection.” This has led to an informal and unspoken but very real tendency to delegate the difficult decisions to these unelected agents. The president is much stronger than the Framers would have imagined, but the expansion of the office’s responsibilities has grown larger than the reservoir of its powers. Congress has become an almost dysfunctional anachronism: an institution that works for its members but is unable to act collectively in any meaningful way. The bureaucracy and the judiciary have stepped into this void. The story of American political development is largely fueled by the growth of the former and the expanded powers of the latter. In the ideal, normative world, representatives, senators, and the president would be the policy-makers and the bureaucrats and judges would be the neutral experts who carried out the legislation and set boundaries.

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If the public were unhappy with the direction of policy or the country, it could turn the offending legislators and executive out every two, four, or six years. The unelected, life-tenured bureaucrats and judges would be interstitial actors whose freedom from electoral recall and expertise would provide them with the insulation to do their jobs but deny them the legitimacy of policy-makers. Separation of powers and checks and balances, an additional safeguard to Montesquieu’s design, provided a number of benefits. But they are not without some costs. As regards the bureaucracy and the Supreme Court, the practical reality is that for a bill to become law, it must run an elaborate gauntlet that is heavily skewed toward failure rather than success. To negotiate the obstacle course and avoid the multiple veto points, legislation must be written in vague language. The translation of those vague provisions will fall first to the bureaucracy and likely to the courts. The ultimate law is going to need to be implemented in Manhattan, New York, as well as Manhattan, Kansas. The need to tailor the law to dramatically different circumstances means the agencies are going to have to have great flexibility (Meier and Bohte 2007). Members of Congress are served by this arrangement, and they may take it even farther. Bamberger (2000) argues that Congress often passes “reckless legislation” that is obviously flawed but panders to some constituency. Congress gets the credit for passage and then points the finger of blame at the Supreme Court for emasculating the legislation. Both the bureaucracy and the courts are convenient targets with the inability to answer the charges or publicly defend themselves. One of the typical remedies that is recommended for these maladies is to have Congress delegate authority with more strings (Lowi 1969). But to this point, that has been the exception rather than the rule. It is a fact of our constitutional system that much of the major work in constructing policy is done by unelected bureaucrats and judges with no tenure clocks. The relationship between these two powerful unelected institutions is largely below the public radar. The increased complexity of policy making has shifted much of the responsibility for promulgating regulations and implementing directives to the executive agencies. Strategically, the Court would be expected to pay attention to the position of the executive agency that writes the rules and implements the directives. The Court may do this because the agencies could have powerful allies on congressional committees or throughout the executive branch. While the Court and the bureaucracy share some attributes, like their tenure, expertise, unelected status, and the influence of the other branches, there are vast differences that help to shape their relationship. Both the bureaucracy and the Court are put in a difficult position between Congress and the president, but in different ways. Similarly, they both have expertise, but their types of expertise are significantly different. The source of their relevant expertise gives each an advantage over the other.

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As a result, there is a balance of power deterrent effect. The Court needs to respect the policy and technical expertise of the bureaucrats, while the agencies respect the legal expertise of the judges and justices. I have posited throughout the book that the Court’s decisions are some function of its legal obligations to standardize the law, the sincere policy preferences of the majority, and its care to avoid sanctions from the other branches. The standards the Court has adopted to guide it in deciding cases from the bureaucracy have reflected those three factors with some movement in their relative weights. The Court has been deferential when legal factors were its dominant concern. When the sincere preferences of the justices were the ascendant concern, the standard changed to less deference. And in certain cases, the Court, apparently responding to particular agencies or respecting the other branches, showed deference. The ability of the agencies to fulfill their obligations depends in part on the discretion that the agency is permitted. But it has been a moving target. The standards governing that discretion have changed over time. At one end of the spectrum, a court may give no deference to the agency determination and impart its own independent judgment. The Skidmore v. Swift (1944) standard was vague and necessitated a case-bycase determination. As a result, it was more a broad principle than an easily applied rule. It provided the Court with a great deal of discretion while circumscribing the agency. This was a product of the time. The Court was activist, and modern big government was having its first major growth spurt. The Court moved toward greater deference in National Muffler. Chevron represented another decisive step toward deference, granting a wide berth to agency determinations (Friedman 2012, 124). The Court has made numerous other decisions that seemed to move away from deference. In one instance, the Court even held that its own precedents should be accorded greater weight. The confusion has persisted, because the Court is not providing uniform direction and continues to fail to give clearer instruction (Friedman 2012, 116). There are a number of consequences of the Court’s inconsistent decisions in these areas, and none of them are positive. The changing standards give the agencies pause and complicate the work of the lower courts in applying judgments to moving targets. Skidmore was law for four decades. Since then the Court has appeared to change the standards a half-dozen times. Chevron itself seems to wax and wane. It is apparently good law, but the Court does not seem reluctant to ignore its central holding. Chevron exists in name, but the Court has carved out a number of exceptions for certain activities. Even when the Court relies on Chevron, its application of the principles is inconsistent.

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Appendix to Chapter 4

Since the New Deal, the United States has increasingly become a regulatory state. When people talk about “big government” (and seldom in a positive way), this is what they are typically referring to. The regulatory state has grown, expanding the authority of the central government. The broad expanse of regulatory power has enhanced the power of the bureaucracy. It also brings to the fore the solicitor general. Part of the job of the Office of the Solicitor General is to centralize the litigation efforts of the U.S. government, and it is particularly consequential in these economic regulation cases. Much of the literature focuses on the president’s ability to use the OSG to do his bidding. But economic regulation cases do not provide an unencumbered opportunity for the president to control the activities of the OSG. Rather, the Office has to balance a number of constituencies. The SG has to speak for the president and Congress, and protect the prerogatives of the agencies. In this model, I examine the impact the OSG has on the Court’s decision making by comparing it to the legal, attitudinal, and strategic variables that have been the basis of the models in the previous chapters. Table 4.1 shows the usual factors that are thought to influence Supreme Court decision making. I am examining the cases in which the government, the department, or the agency was a party to the case. The variable that I have added represents the position that the solicitor general took in the case (whether in favor of the regulation or not). These cases, involving regulation, highlight the work and the importance of the solicitor general. This group of cases includes economic policies and regulations from executive departments and independent agencies, including the Internal Revenue Service. The expectation is that advancing a liberal position (progovernment in regulatory cases) by the SG will enhance the probability of a liberal decision by the Court (controlling for the other variables). And the results strongly confirm the hypothesis. If indeed the OSG serves as a bridge between the agencies and the Court, then the results suggest that linkage is very strong. The impact of the OSG is far stronger than any of the other variables. According to the results, arguing a pro-regulation position enhances the probability of a Supreme Court decision in the

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Table 4.1 The Influence of Political and Legal Factors on Supreme Court Decision Making, 1953–2007: Economic Regulation

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Full Opinion Decisions Economic Regulation Independent Variable

Θ (S.E.)

Supreme Court Ideology

.40 (.57) –.16 (.17) .40 (.52) –1.58 (1.07) .45** (.06) –.05 (.08) .05** (.01) 1.37** (.12) –3.61** (.91) LL = –793.69 χ2 = 229.15 P < .0001 N = 1330

Presidential Ideology House Ideology Senate Ideology Precedent Issue Evolution Public Mood Position of the Solicitor General Constant

Δ Prob. Liberal Decision .03 –.01 .01 –.01 .16 –.04 .02 .30 —

Note: (*) = p ≤ .05, and (**) = p ≤ .01. These models were estimated with logit regression using Stata 12.1. Standard errors in parentheses are robust. Simulated probabilities are calculated from 0 to 1 for dummy variables and from the mean plus one standard deviation for continuous variables. The predicted probability for Precedent represents the difference between the probability of a pro-regulation decision when the Court faces a pro-regulation precedent versus dealing with a precedent that did not support regulatory authority.

same direction by .30. This is one of the largest magnitudes of impact of any variable in any model. The influence of the variable for the position of the OSG is in stark contrast to most of the other variables in this model. The ideological composition of the Supreme Court typically wields the strongest effect. Not in this instance, however. The attitudinal variable has a minor impact, controlling for all of the other variables. In fact, the impact is not statistically significant. Thus, we see the Court putting aside its sincere policy preferences to support the position of the OSG. These regulatory cases are less salient to the justices. These cases are much more likely to be

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decided unanimously (again suggesting the diminished impact of policy preferences). Many of the petitions are granted simply to resolve a lower court conflict (Pacelle 1991). There are good reasons to think that the president and Congress will have some influence on the decisions. These cases involve important policies and have their champions in the elected branches. But interestingly, the president, the House, and the Senate do not have a statistically significant impact on decision making. If there is any influence, it is moderated through the solicitor general. None of the elected branches has any independent effect. The span and breadth of regulatory activities have divided the parties since the Reagan Administration, but those changes do not appear to have a major impact on the Court. The OSG is very consistent in adopting a position that supports regulation and the position of the agency despite the occupant of the White House. Precedent has a major impact on the Court’s decisions when the OSG participates. A pro-regulation precedent (rather than a limiting one) enhances the probability that the Court will make a pro-regulation decision in the current case by .16. This is not surprising, as the primary reason that the Court is engaged in these issues is to settle the law and impose some consistency on the various circuits. The other “legal” variable, issue evolution, does not have a significant impact on decision making.

Notes 1. The D.C. Circuit plays a major role in defining administrative law. In fact, it may be more important than the Supreme Court, given that many cases terminate there and it has exclusive jurisdiction over a number of agencies like the EPA (Rossi 2000). 2. Those cases were Allen v. Wright 468 U.S. 737 (1984) and Lujan v. Defenders of Wildlife 504 U.S. 555 (1992). 3. The Chevron doctrine is a precedent for the position that courts should give great deference to the position of an agency. In Massachusetts v. EPA, if the Court followed Chevron, it would not tamper with the judgment of the EPA’s refusal to regulate greenhouse gases. 4. The early regulatory agencies had relatively narrow charges, and the cases that involved them were largely involved in monitoring competitive practices, rate setting, and entry-control. Among the examples of such agencies were the Securities and Exchange Commission, the Federal Trade Commission, and the Antitrust Division of the Department of Justice. The “new” regulation, on the other hand, was much more concerned with process and products. These agencies typically cut a much wider berth. As a result, they are more controversial. Examples of such agencies include the Occupational Health and Safety Administration, the Food and Drug Administration, and the Environmental Protection Agency. Some agencies like the Civil Rights Division of the Department of Justice and the Office of Civil Rights have noneconomic regulatory authority (Wilson 1980, xi). 5. For instance, the congressional subcommittees have a budget for the agency and projects for the interest groups. The interest groups provide political support for the agency and campaign contributions to members of Congress. The

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agency has implementation power and can provide favorable rules and help serve congressional constituents. 6. Of course, some of the classics in the field, most notably Downs (1967), focus on individual-level behavior and the motivations of particular bureaucrats. I am more interested in the organizational opportunities and constraints and how they shape the environment that the Court faces when making decisions. 7. Fenton is my wife, and she is known widely by her first name.

5

The Supreme Court and Public Opinion

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Michael Hardwick had to be surprised when an Atlanta police officer entered his bedroom. The officer had apparently come to serve a warrant for a minor liquor offense, and a guest had let him into the apartment. Hardwick was arrested for being in violation of the Georgia code that criminalized sodomy. The state decided it would not prosecute the “offense.” However, Hardwick insisted on having his day in court, fearing future arrest. A heterosexual couple, named in the court proceedings as John and Mary Doe, joined the action. The Does were quickly dismissed because they lacked standing and were not directly harmed (Maurer 1987, 1014). Hardwick’s claim was also dismissed by the District Court, but he appealed to the Eleventh Circuit, which struck the law down as unconstitutional. The state appealed the decision to the Supreme Court. It takes the vote of four justices to grant certiorari so that a case is accepted for review by the Supreme Court. The liberals on the Court faced a dilemma in the case known as Bowers v. Hardwick (1986). The decision in the lower court was to their liking, but it was just precedent for that circuit. Normally, the Court accepts cases in order to reverse the lower court judgment. There are far more petitions for certiorari than the justices can accept, so they concentrate on cases that they would reverse, rather than using finite agenda space to affirm a lower court decision they agree with (Perry 1991). There was a great temptation to grant certiorari (a so-called aggressive grant) and decide the case to protect individual rights and make it precedent throughout the country. The concern was whether there were five votes to uphold the lower court decision, because once the Supreme Court decided the case it would be precedent for the entire nation. The Court’s two liberal lions, Thurgood Marshall and William Brennan, debated whether to risk granting the petition and accepting the case. Marshall was sure he could count to five. Brennan had trouble getting past four. Ultimately, Brennan was convinced it was too risky and voted to deny certiorari. But Marshall shouldered forward, voting to grant and providing, in effect, the crucial fourth vote. It would turn out to be a mistake (Bartee 2006).

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By a 5-4 majority, the Court overturned the Court of Appeals decision and upheld the Georgia act, exercising judicial restraint. The opinion of the Court was authored by Justice Byron White and accompanied by concurring opinions by Justice Lewis Powell and Chief Justice Burger. Powell was indeed the key vote, as Marshall and Brennan had predicted. He had originally voted with Marshall and Brennan to strike the law, but had a change of heart (Bartee 2006, 64–65; Klarman 2013, 36–37). The Bowers v. Hardwick decision seemed at odds with the entire array of privacy decisions that had started with Griswold v. Connecticut (1965). The Warren Court presided over a civil rights revolution. Unfortunately for gay rights activists, they were too late to the party. The Supreme Court successfully avoided dealing with gay rights for a number of years. Some of the justices tried to avoid the issue even longer (Pacelle 1996). Today, legislatures and courts at all levels are fully engaged, largely forcing the Supreme Court into the maelstrom. While this case has a lot of interesting dimensions regarding agenda setting, decision making, strategic behavior, judicial restraint, and precedent, it is placed here because it is an example of the two primary foundations of the relationship between the Supreme Court and public opinion. That relationship is reciprocal—does public opinion influence the Supreme Court, and do the decisions of the Court influence the public? Both facets of the relationship are evident in Bowers v. Hardwick and the cases that would follow it. The case also demonstrates a third element of public opinion, but this one involves the views and attitudes of the elites and activists, often referred to as “attentive publics” rather than the general populace (Berkson 1978). While the decision was at odds with the precedent of the time in privacy law, it was an accurate reflection of the intolerance of public opinion of the day. Indeed, Justice White justified the majority’s holding by stating that the sentiments held by the majority of the population regarding the morality of homosexual sodomy provided a sufficient rationale to support Georgia’s statute (Maurer 1987, 1017). Justice Blackmun would counter in dissent that public opinion is not a worthy justification for a decision regarding rights and liberties. Whether the majority opinion was driven by public opinion or that was simply a justification for the decision is impossible to say. But the Court’s decision appeared to have an influence on public opinion. It fed into more intolerance. It is difficult to attribute changes in public support or opposition to one Court decision, but Stoutenborough, Haider-Markel, and Allen (2006, 425) showed that in the wake of the Bowers decision, “this single event is associated with a nearly twelve percentage point drop in public support for legal samesex relations.” This appears to lend support to those who argue that the Court’s decisions provide a legitimating aura to the law, which means that the public is persuaded by the result.

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While decisions like this may induce changes in mass public opinion, they may have the opposite effect on elite or specialized opinion. The Court was excoriated in the press and in law reviews for the decision. Those attacks would become the basis for later majority opinions supporting gay rights. But perhaps more consequential, gay rights activists used the decision as a call to action (Sheyen 2009, 10–14). The decision motivated activists to lobby state legislatures, flood the courts with cases, and occupy the streets. This type of reaction is different from the “legitimation theory”; Franklin and Kosaki (1989) refer to this as the “structural response theory.” The structural response theory is based on the idea that Court decisions in salient cases seldom end the debate on the issue or resolve it conclusively. Those decisions seldom convert the opposition; quite to the contrary, they usually do the exact opposite. The decision does not simply earn public support, rather it motivates people on both sides of the issues and expands the gulf between supporters and opponents. Justice Lewis Powell, the pivotal vote in the Bowers case, expressed regret for his decision not long after his retirement from the Court. As gay and lesbian individuals continued to come out of the closet and President Clinton advanced policies like “don’t ask, don’t tell” to the front of his initial agenda, public opinion began to become more informed and, slowly, more tolerant (Pacelle 1996). Ironically, perhaps, it was the courts that would provide the greatest impetus for lesbian and gay activists (Richards 2009, 108–109). State court challenges to sodomy laws were successful in a number of venues. Later, state courts would also invalidate prohibitions against same-sex unions (Klarman 2013). Meanwhile, the criticism of the Bowers decision continued to grow. Numerous states repealed their sodomy statutes. The Supreme Court decided a couple of visible gay rights cases, but its decisions were inconsistent (Klarman 2013). The Court spoke forcefully for gay rights for the first time in Romer v. Colorado (1996), striking down an amendment to the state constitution passed by the voters that would forbid cities or the state from enacting measures that forbade discrimination on the basis of sexual orientation. Proponents claimed the amendment was to remove any special status of protection from homosexuals. Speaking for a 6-3 majority, Justice Anthony Kennedy claimed the law placed a “broad and undifferentiated disability” on this one particular group. He added that there was no good reason for the provision except to serve as a “simple animus” against this group (Bartee 2006, 208; Klarman 2013, 68–70). In his dissent, Justice Scalia evoked the specter of public opinion, claiming the amendment was nothing more than people trying to protect traditional mores from a politically powerful minority. The Romer decision did not create major ripples in public opinion. First, in general, Timothy Johnson and Andrew Martin (1998) argue that in salient issue areas only the first major Supreme Court decision influences

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public opinion. In response to that people develop or strengthen their attitudes, and subsequent Court decisions do not influence their views. Second, with regards to the Romer case, it was a narrow decision with limited application as a precedent. It involved one “outlier” state with a unique law. It was not, as some analysts were quick to note, “Roe v. Wade for gays and lesbians” (Klarman 2013, 69). But it was a psychological boost and certainly stayed the hands of other states that might have considered such proposals had this one been upheld. Slowly, with the help of activist organizations, favorable court decisions, and presidential leadership, public opinion began changing. Still, the Bowers precedent was a festering reminder of unequal treatment. The drumbeat of criticism for Bowers continued to erode its reach. Lower courts seldom cited it as controlling precedent (Klarman 2013). The Supreme Court would directly revisit the issue in Lawrence v. Texas (2003). The case was eerily similar to Bowers. Police came to a private residence on a different matter, found John Lawrence and Tyron Garner involved in sexual activity, and charged them with violation of a Texas statute that forbade sexual relations between parties of the same sex. But while the prosecutor in Bowers initially refused to proceed, the prosecutor in Lawrence pressed the case (Richards 2009, 123). The Court accepted the case for review with the widespread expectation that Bowers would be relegated to the dustbin of history. Indeed as Alice Fleetwood Bartee (2006, 205) wrote, “The seventeen-year reign of the antigay decision Bowers v. Hardwick ended abruptly and dramatically on June 26, 2003.” Bartee (2006, 206) claimed, Justice Anthony Kennedy intoned Bowers’ death warrant in these words: “Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and is now overruled.” So how did public opinion react to the decision? There are a number of reasons to think that the legitimation or positive response theory would hold true. First, public opinion had been moving in favor of more tolerance for gay and lesbian rights. This decision was consistent with that growing public support. Second, the Bowers decision was so unpopular among elites that its reversal would be greeted by positive press that would filter to the public. Finally, as Johnson and Martin (1998) note, only the initial landmark decision seems to have an impact. So the effect should be minor, if anything. Instead there was backlash and a significant drop in public support for gay and lesbian civil rights (Stoutenborough, Haider-Markel, and Allen 2006). The decision divided the public and engendered a backlash that is consistent with the structural response theory. The seeds of the discontent may have been sowed by Justice Antonin Scalia’s dissenting opinion and

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the “M” word. Scalia’s dissent claimed the decision was just another inevitable step in a progression toward same-sex marriages. In 2003, the nation was not ready to move that fast. Congress passed and President Clinton signed the Defense of Marriage Act (DOMA) in 1996. Republicans in Congress and President George W. Bush raised the issue and gave unqualified support to traditional marriage (Klarman 2013, 88). A decade after Lawrence, the Court was ready to address the central questions more directly. And so we arrived at the next major test of the impact of public opinion. The Court granted certiorari to determine the constitutionality of the Defense of Marriage Act (DOMA) in United States v. Windsor (2013). The DOMA case was added to a case challenging Proposition 8, which banned same-sex marriages in the state of California (Hollingsworth v. Perry). By the time the Court was readying to decide these cases, public opinion had shifted. A decade earlier, in the wake of the Lawrence decision, public opposition to same-sex marriages was between 55 and 60 percent. By decision day 2013, support for same-sex marriage was around 55 percent. Nate Silver, the political analyst and hero of the 2012 presidential election, argues that within a decade even Mississippi, the last holdout, will have a majority supporting same-sex marriage. The Court also had access to specialized public opinion in the form of amicus curiae briefs. The Court received 96 amicus briefs in the Proposition 8 case and 80 in the DOMA case. The breakdown in the Prop 8 case was almost a perfect reflection of public opinion, with 53 briefs opposing Prop 8 (and thus in favor of same-sex marriage) and 42 supporting the California proposition (and thus opposing gay marriage). The DOMA case was more one-sided, with 49 briefs urging the Court to strike the act and just 29 supporting the legislation.1 Some of the briefs were particularly noteworthy. Over a hundred Republicans filed a brief urging the Court to overturn DOMA. More strikingly, 278 employers of all ideological stripes filed a brief asking the Court to declare DOMA unconstitutional. The businesses, organizations, and cities claimed that the law prohibiting same-sex spouses created hardships for employers in administering taxes and benefits and constructing human resources policies. President Obama, who reversed his position on same-sex marriage during his campaign for reelection, withdrew government support for DOMA. He said that the government, through the solicitor general, would not defend the act in the Supreme Court. Members of the House who supported DOMA hired former Solicitor General Paul Clement to argue in defense of the act.2 Forty senators and 172 members of the House also filed a brief urging the Court to strike down DOMA, while only 10 senators filed a brief in support. Thus, the strategic cues for the Court were largely uniform and sent a rather loud message. In a 5-4 decision, the Court struck down the Defense of Marriage Act. Justice Kennedy, the author of Lawrence (ten years earlier to the day),

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ruled that DOMA violated the Fifth Amendment. He wrote that the act’s “principal effect is to identify a subset of state-sanctioned marriages and make them unequal” (United States v. Windsor 133 SCt 2675 at 2694). The Court also refused to enforce Proposition 8, thus clearing the way for same-sex marriages to resume in California. Recall that in the previous gay rights decisions, Bowers and Lawrence, there was a public backlash against gay rights. The decisions also expanded the gulf between supporters and opponents (reflecting the structural response theory). In the wake of the Windsor and Hollingsworth decisions, public opinion did not move dramatically. The Court’s decision appeared to be consistent with and reinforced the trends of public policy. As the progression of gay and lesbian civil rights cases suggests, there are many facets to the relationship between public opinion and the Supreme Court. In this chapter, I want to address a number of questions, this one being the most prominent: Does the Court worry about public opinion, and if so why? The subtitle of the chapter makes reference to Janus, a relatively obscure Roman god who had two faces—one that looked to the future and one to the past. So does public opinion. Like Janus, the relationship between the Court and public opinion is both forward- and backward-looking. Janus looking back can represent the impact of public opinion on judicial decision making. Janus looking forward symbolizes the impact of Court decisions on public opinion. The Court may react to public opinion in rendering decisions. But from the other perspective, some would argue that the Court plays an educative role and its decisions can shape public opinion. In this chapter we will look at the two faces that Janus shows us. There are numerous aspects to the relationship between public opinion and judicial decision making. In the remaining sections of the chapter, I want to examine a few aspects of that relationship. Besides considering whether Janus does indeed look in both directions, I want to examine the different kinds of public support; the idea that the Court cannot long remain out of touch with the predominant political mood of the country; whether the Court plays the role of a “Republican School Master”; and whether the impact of public opinion is direct or indirect (or some combination of the two). These are complicated questions, and the past research does not sing a single tune.

The Public and the Temple There is no apparent reason that the Supreme Court should really care about public opinion. The Court theoretically lives in a splendid isolation. The Framers took great pains to insulate the judiciary from the shifting winds of public opinion. The justices were given lifetime tenure and not elected. Indeed, the Framers generally feared the public. The president would be elected by an oligarchy, the Electoral College,

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rather than the people. The House was to be elected by the people, but senators were to be elected by the state legislatures. The Senate, according to George Washington, would serve as a saucer to cool the passions that might come from the cup, the House of Representatives. Thus, only one-half of one-third of the national government would be elected by the people. Tradition and constitutional amendment have conspired to make the president and the Senate subject to the people. But the Supreme Court remains an anachronism: an unelected national policy-maker. With its glorious Marble Palace, the Constitution as the bible that it has the final word (or at least the primary say) in interpreting, and lifetime tenure for its members, the Supreme Court seems to be distant and removed from the vagaries of public opinion. On the other hand, the previous chapters have detailed that the Court appears to pay at least some attention to the popularly elected branches of government. What about public opinion, more generally? Does it influence the Court either directly or indirectly? It is clear that the public is largely uninformed about the workings of the Court. But the fact that the Court is intimately involved with many of the major issues of the day is bound to raise the public’s temperature. In Chapter 1, we examined the Obamacare (National Federation of Independent Business v. Sibelius) decision as an entry to understanding the Supreme Court. If any case had implications for public opinion it would be that one. The justices would not have to look long or hard to find public sentiment. Some have suggested that Chief Justice Roberts may have cast the deciding vote to sustain the law because he was concerned that an activist decision would wound a Court already suffering from its lowest public approval (White 2012, 369). The decision in the case appeared to lend some legitimacy to the law, as public approval of the health care law moved in a positive direction. The idea of the justices carefully monitoring public opinion and reacting accordingly would appear, at first blush, to strain credulity. The justices do not, as far as we know, subscribe to the Gallup polls or overtly tailor their decisions to the whims of the public. But the justices do not operate in a vacuum. There are mechanisms available to the justices for finding out about public opinion. Many justices achieved their current positions because of their political connections and/or their ideological predilections (Davis 2011). They tend to be politically active, and they can certainly read the newspapers. The government is a party to many cases, and it files amicus curiae briefs in other cases of interest (Salokar 1992; Black and Owens 2012). This permits the justices to gauge the position of the president, Congress, and bureaucratic agencies. Those briefs and oral arguments may have direct reference to public opinion, but more likely they will have indirect evidence of trends (Epstein and Knight 1999). Litigants can also file and join amicus briefs to provide the Court with an informal tally of public opinion (Pacelle 2003). Thus, the

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Court will not lack for information. I will examine further aspects of the impact of this specialized public opinion in the next chapter. Whether or not there is an impact on the Court, it is evident that on more than a few occasions justices author opinions that reflect public opinion or deliberately incorporate mass opinion into their calculus. First, they are part of the surrounding society. As Carp, Stidham, and Manning (2014, 317) note: “Putting on a black robe may stimulate a greater concern for responsible, objective decision making, but it does not void a judge’s membership in the human race.” In some instances, the Court deliberately consults and considers public opinion. As we will see in Chapter 7, the Court asked litigants to consider local opinion in its Brown v. Board of Education II decision. The Court refused to establish one set of guidelines for every area, knowing there would be more resistance in the deep South than in the border states (Wasby, D’Amato, and Metrailer 1977). The Court did the same when school desegregation questions came north (Landsberg 1997; Pacelle 2003). The Court also deliberately incorporated public opinion into its decisions regarding obscenity with the change to local standards in Miller v. California (1973) (Tedford and Herbeck 2009). Similarly, the Court has resisted imposing a single set of standards in its reapportionment decisions, thus taking into account local conditions (Cortner 1981). Justices are well aware, or at least believe, that their decisions need public support (Clark 2011). High regard for the institution can help the Court in conflicts with the other branches and increase the willingness of others to carry out the directives. This may serve as a constraint on their activism or at least convince them to take some precautions. One way justices may do this is in their decisions. Authors of controversial or unpopular decisions take great care in couching the language in the law or in trying to generate some favorable support for a decision. There is some evidence that the Chief Justice may assign himself some of the controversial decisions in order to add a little more legitimacy to the Court’s opinion (Maltzman and Wahlbeck 2005; Slotnick 1978; Rohde 1972).

Should the Court Pay Attention to the Public? As the chapter proceeds, we will address the question of whether public opinion influences the Supreme Court as well as whether the Court influences public opinion. With regard to the former, the current research is not definitive, as we will see, but it is suggestive. Regardless of whether, empirically, public opinion does influence the Court, we might start with the question whether it should? It may seem surprising that there are just as many good reasons to answer “yes” as to reply in the negative. The Court’s distance from the public carries a normative imperative for many people: the Court should go out of its way to exercise restraint because it is unelected. The Court should stay within the boundaries

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constructed by public opinion because it is unelected. If the public is unhappy with the policies of the president or Congress, it can vote the rascals (or their party) out of office. But there is no accountability for federal judges and justices of the Supreme Court. By paying attention to the public, the Court enhances its legitimacy. Finally, this is a democracy and the most undemocratic institution should pay heed to the sovereign, the people. By contrast, there are some good normative reasons for the Court to keep public opinion at arm’s length. First, it was the intent of the Framers to give the judiciary a measure of independence from politics and public passions. Some would argue that the fact the Court is beyond the reach of public opinion is actually its greatest strength and permits it to protect the rights and liberties of individuals and “insular minorities” (Pacelle 2002). De Tocqueville (1835) expressed concern for the tyranny of the majority. The elected branches of government are often unwilling or unable to protect the rights of unpopular groups or the tone of their messages. Indeed, in 1937 the Court began the process of adopting the preferred position standard of review that suggested that the Court should be more proactive in protecting civil rights and civil liberties. That was a recipe for situational judicial activism. It was the dominant perspective on the Court for well over a generation, and some of its precedents remain in full force today (Pacelle 1991; McCloskey 1994). Justice Robert Jackson can express this idea more eloquently. As he wrote in his opinion in West Virginia v. Barnette (319 U.S. 624 at 638) (1943), the flag salute case: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. While the Court is the one institution best suited to be countermajoritarian, as Finley Peter Dunne’s Mr. Dooley famously noted “the Supreme Court follows th’ ilection [sic] returns.” Political scientists do not unanimously agree. Does the Court fall in step with mass opinion, or can it safely stake out positions that are antithetical to public mood? The Court faces the potential impact of direct public opinion and indirect opinion that is filtered through the elected branches of government (Pacelle, Curry, and Marshall 2011; Clark 2011). Before searching for the two faces of Janus, I want to consider the diffuse and specific support that the public manifests toward the Supreme Court. In Chapters 2 and 3, we examined the relationship between the

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president and the Court and between Congress and the Court. I hypothesized that under some conditions the elected branches would serve as constraints on the Court. The results of the models presented there (see Tables 2.2 and 3.2) suggested that the Court’s decisions were influenced by the position or behavior of Congress and/or the president under those conditions. Part of the impact was due to structural concerns: the Court lacks the purse (which belongs to Congress) and the sword (the province of the president). In addition (and related to these constraints), the Court may act strategically to protect its ultimate resource, its legitimacy. The Court’s legitimacy is tied to its public support. To render rulings that carry authoritative force, the Supreme Court needs to maintain a sufficient reservoir of institutional legitimacy with the public and the other branches (Bartels and Johnston 2013). Legitimacy is conferred upon Congress and the presidency through their electoral connection and the expanse of their enumerated powers in Articles I and II of the Constitution. The Court, on the other hand, has no similar bases for its legitimacy. Rather, the Court needs to maintain its reputation as “impartial, trustworthy, and above the politics” (Bartels and Johnston 2013, 184). The Court has a reserve of goodwill that protects it from public displeasure when it issues unpopular decisions.

To Not Know the Supreme Court Is to Love the Supreme Court: Specific and Diffuse Support Public opinion polls show an alarmingly low percentage of Americans knows much about the U.S. Supreme Court. In fact, as two wags noted, more people can name the Seven Dwarves than seven Supreme Court justices (Baum and Devins 2010). Given this lack of knowledge, it is difficult to develop a meaningful linkage between public opinion and Court decisions (Goldstein and Howe 2011). Yet according to McGuire and Stimson (2004, 1033), “public opinion is a powerful influence on the decisions of the Supreme Court.” The results of the decision-making models in my study agree that there is an influence, but perhaps the magnitude of the impact is a bit more modest. Traditionally, the Court has been the most revered of the three branches. Congress, of course, is the most reviled. The presidency carries some aura, but feelings about the sitting president often confound public opinion: it is hard to separate the office from the office holder. The lack of public knowledge of the Supreme Court provides a positive dynamic for the institution. It appears that to not know the Supreme Court is to love the Supreme Court. More recently, while the Court continues to sport a high level of support relative to its institutional rivals, the level of that support has declined precipitously (Bartels and Johnston 2013). Figure 5.1 shows public support for the Court in the 1971–2012 period. While support remains high, it is declining. And the decline, though it appears to be

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1970

1980

1990 Year

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Figure 5.1 Public Support for the U.S. Supreme Court, 1971–2012 Source: Harris Interactive Poll. Asking the question: “As far as people in charge of running the U.S. Supreme Court are concerned, would you say you have a great deal of confidence, only some confidence, or hardly any confidence at all in them.” http://www.scribd.com/doc/97132603/Public-Opinion-on-the-Supreme-Court-1937-2012

small, is significant. Support is measured by combining the categories “a great deal” of support and “some support.” Within the general category, there has been a decline in strong support for the Court. So how do we reconcile the overwhelming evidence that the public is not well-versed in the work and decisions of the Supreme Court and yet the justices seem to respond to mass opinion? One possible explanation holds that there are different dimensions to public opinion. When considering the Supreme Court, public opinion has historically been separated into two distinct categories: diffuse support and specific support. Diffuse support has been defined by David Easton (1965, 273) as being “a reservoir of favorable attitudes or goodwill that helps members to accept or tolerate outputs to which they are opposed or the effects of which they see as damaging to their wants.” Conversely, specific support is best understood as an individual’s “set of attitudes toward an institution based upon the fulfillment of demands for particular policies or actions” (Caldeira and Gibson 1992, 637). Specific support refers to performance satisfaction, and the major component of that performance is policy making by the Court. Thus, specific support would involve responses to particular decisions, while diffuse support redounds to the institution and the view of its legitimacy.

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The Supreme Court may occasionally stand against the majority, but the concept of specific support insures that it cannot continually ignore the will of the people without consequence. It is assumed that the Court will be responsive to public opinion to protect its diffuse support. The theory holds that prolonged dissatisfaction with policy outcomes (specific support) will decrease levels of diffuse support (Gibson, Caldeira, and Baird 1998). However, the effects of negative policy outcomes are mitigated to some degree by the fact that the Court is often seen by the public as an apolitical (or at least a less political) institution that largely interprets the Constitution (Clark 2011). So why is diffuse support immune from more ephemeral changes in specific support? Ideological dissatisfaction with individual decisions is a component of performance dissatisfaction (specific support). But studies show that the legitimacy of the Supreme Court is not overly dependent upon perceptions and evaluations of its specific performance. Instead, diffuse support is primarily grounded in fundamental and persistent democratic values, and is therefore relatively resistant to change (Gibson and Caldeira 1992; Swanson 2007; Mondak and Smithey 1997). Gibson and Caldeira (1992) argue the foundation of diffuse support comes from the most knowledgeable citizens. They are best positioned to put the Court’s current work in a broader context. But that conclusion belies the evidence of public understanding of the Court. Rather diffuse support appears to stem from and is maintained by the lack of substantive knowledge of the workings of the Court. The Court exists as a quasi-religious institution surrounded by the symbols and trappings of law and justice and situated in a marble temple. It has claimed, and is generally granted by the other branches, the authority to be the sole or at least the dominant voice of the sacred Constitution (Powe 2009; Pacelle, Marshall, and Curry 2007; Whittington 2007). The public has traditionally accepted that in part because it subscribes to the judicial myth that the Court is somehow either partially insulated or above the world of crass politics. The more the spotlight is focused on the Court, the more potential for losing diffuse support and ultimately legitimacy. The primary recipe for maintaining diffuse support is to exercise judicial restraint. The Court has a reservoir of goodwill that many believe protect it against retribution for policies at odds with majority sentiments (Gibson and Caldeira 1992). The literature shows that accumulated grievances can undermine judicial legitimacy (Gibson and Caldeira 1992). Baird (2001) has argued that institutional support is a sort of “running tally” through which citizens keep track of their likes and dislikes of the policy outputs of courts. Analysts typically argue that public support for the Court gradually returns to its normal level over time because of the influence of political values. Mondak and Smithey (1997, 1124) claim that “confidence in the Supreme Court can be shaken by controversial rulings, but the eventual

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reassertion of democratic values means that the individual’s confidence in the Court may be restored.” Thus, while individuals may disagree with particular decisions, their more durable democratic values will restore their confidence in the Court. Durr, Martin, and Wolbrecht (2000, 774) concur that the effect of short-term shocks to Supreme Court support is “relatively short lived” and support rebounds rather quickly. Positivity theory provides a plausible explanation for the rebound (Gibson and Caldeira 2009). Positivity theory argues that whenever people pay attention to the Supreme Court they are simultaneously exposed to powerful symbols of judicial authority and legitimacy that increase support for the Court even among those who do not support particular Court decisions. Finally, there are practical reasons to explain why the decline of diffuse support might be limited and transitory. Regardless of the ideological balance of the Supreme Court, the decisions the justices issue each term are a mix of liberal and conservative. Thus, the Court seldom makes a consistent run of decisions that the mass public finds objectionable (Bartels and Johnston 2013). The Court can essentially pick its spots for the important controversial decisions by adhering to the law or being circumspect in cases that are less salient to the majority (Casillas, Enns, and Wohlfarth 2011). There are a number of factors that might cause the Court’s diffuse support to erode. A massive erosion that occurred unabated would threaten the Court’s legitimacy. If the Court issued a number of activist decisions that brazenly flaunted judicial power and showed contempt for the elected branches, that would likely take a toll on its public support. Such a string of decisions would invite significant external elite criticism, and that would also undermine diffuse support for the Court. The title of this section, “To Not Know the Supreme Court Is to Love the Supreme Court,” suggests that the lack of knowledge about the Court is one of its best resources. In addition, the Court has little opportunity to shape the context of such a dialogue. The Court tries to frame issues, but it is not in a good position to respond to criticism. Consequently, any widespread rebuke is likely to go unanswered unless some group or institution rallies to the Court’s defense. It has been said that “the Court is the guardian of its own integrity,” but that is far different from being its own master in a separation of powers system that is fueled in part by competition for power (Marshall, Curry, and Pacelle 2014). Popular legitimacy rests, in large part, on popular perceptions of the Court and its behavior (Gibson and Caldeira 2009). Those perceptions are not independent of actions taken by the other branches to promote partisan interests for electoral or political advantage, and the Court lacks an institutional capacity to carry out public relations campaigns or defend itself from political damage resulting from battles with the other branches (Davis 1994). It is difficult for the Court to control the agenda of public debate. The Court intervenes periodically and issues a decision that explains its

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reasoning. The decision may draw the ire of the other branches or elite or mass opinion. Until the next time the Court enters the fray by accepting and deciding a related case, it is at the mercy of the other actors in its environment. How can the Court be a bit more proactive and exert a little more control? There might be some means of influencing elite opinion and the other branches through formal and informal mechanisms, but that is unusual (however, see Davis 2011). Rather, the Court likely relies on “issue framing.” Issue framing is the manner in which alternative depictions of an issue affect public approval or support of political actors or institutions (Nicholson and Howard 2003, 677). Framing helps define the essence of the controversy and the dimensions of the debate. The justice assigned to write the majority opinion will attempt to frame the decisions (particularly the controversial ones) in ways that portray the Court as a legitimate interpreter of the Constitution. The Court will use precedent or the law as the primary justification for the decision. The justices could also base the decision on public opinion or invoke the cherished symbols of law.3 The general notion of framing is that a person focuses more on the Court’s messages of legitimacy and obscures the fact that the decision might be contrary to his/her preferences (Gibson, Caldeira, and Baird 1998). Through this process of “framing,” the Court is able to mitigate some of the negative effects of low levels of specific support while maintaining high levels of diffuse support. Of course, justices who dissent from the majority opinion may offer a different frame that attempts to expose the decision for the politics behind it.4 Diffuse support is typically less susceptible to framing effects than specific support. The norms and core values that are the foundation of diffuse support are enduring and thus more resistant to framing (Nicholson and Howard 2003, 688). Thus, framing is designed to make controversial decisions a little more palatable to the audiences. In using framing, justices seek to engender or nurture more confidence in the legitimacy of the institution. These messages are the result of justices “framing” their decisions in ways that portray the Court as a legitimate interpreter of the Constitution. Gibson (1990) speculates that the Court may be buffered from lower specific support levels following perceived negative policy outputs if the Court’s level of diffuse support is high enough. However, the Court may also be buffered from higher levels of specific support following decisions that are in line with public attitudes due to the same line of reasoning. The more often public opinion is exposed to these messages (thereby increasing levels of awareness of the Court) the more the focus shifts to the Court’s legitimacy and may obscure the fact that the Court’s decision was contrary to public preferences (Gibson, Caldeira, and Baird 1998). Caldeira and Gibson (1992, 659) claim: Occasionally, an institution acts in an aberrant fashion and upsets popular expectations. Its actions create controversy. As an institution

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creates controversy, it creates dissonance between basic expectations and perceptions. This dissonance provides no guidelines for the formation of attitudes, so policy preferences will dominate views of the institution. We think of the Court needing to keep its specific support as positive as possible to protect its diffuse support, but Gibson and Caldeira (1992) suggest that the relationship can be reciprocal. Thus, diffuse support may actually help specific support by creating a theoretical structure where the outputs of courts will be evaluated in a favorable light by loyal supporters of the institution. Gibson, Caldeira, and Baird (1998, 356–357) reason that the level of commitment to the institution may color the views one holds of its performance. Through processes of framing and selective perception, those with allegiance to a court may be likely to discount objectionable decisions and give excessive credit for favorable decisions. In a related vein, evidence of strong partisanship by the Court could also be damaging. Although the public is more aware and even a bit more tolerant of the fact that the Court is a political institution, it is not entirely comfortable with that notion (Clark 2011). The equanimity and symbolic trappings of the legal system are at odds with the rough and tumble that citizens associate with politics. External criticism, particularly from the other branches, could expose the Court as a political actor in its own right and strip away more of the veneer. This may be a reason why the Court is influenced by attacks on its jurisdiction (as we saw in Chapter 3) despite the fact that the likelihood of passage for one of these Courtcurbing bills is quite remote (Hall 2011; Clark 2011). In addition to visible decisions that scream from page one of the newspaper, the Court gets extensive media coverage when there is a vacancy and the judicial confirmation process occupies the national stage. And in recent years, that confirmation process has been loud and partisan. This is nothing new (Epstein and Segal 2005), but with increasingly contentious lower court confirmation battles and a growing overall din of partisanship, protracted battles over Supreme Court nominees have taken a toll (Ginsberg and Shefter 2002). The confirmation process could be a perfect opportunity to hold a vital national seminar to talk about judicial process and constitutional interpretation. But too often it devolves into a cacophony of noise from interest groups that have been mobilizing what seems to be a blindly partisan process (Steigerwalt 2010). The evidence seems clear. Recently, support for the institution, as measured by the percentage of people who think the Supreme Court is doing a good job (whatever the wording of the individual survey questions), has

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declined to sustained historic lows. The Court has hit other, even lower nadirs, but it typically found its way back. This recent decline seems to be more enduring if less damaging to this point. The decline is in part a function of numerous factors. The Court’s decision in Citizens United v. Federal Election Commission (2010) was openly criticized by President Obama at that year’s State of the Union Address, and the vast sums of campaign money spent in 2012 kept the issue alive. Members of Congress continue the drumbeat against the Court, particularly in the wake of the Obamacare decision. Republicans excoriated the Court, saving particular bile for one of their own, Chief Justice Roberts. And from within the walls of the inner sanctum came word that Roberts was criticized by his conservative brethren for the decision (Toobin 2012). The confirmation of Justice Samuel Alito in 2006 seemed to be a particularly relevant moment for the Court. Alito, in effect, replaced Justice Sandra Day O’Connor, and there was widespread concern that this would tip the Court to the right.5 This further revealed the Court as a power organ that could be tipped by changing a member or two rather than an institution dedicated to stability in the law where new justices check their policy views at the door. There was external criticism, organized interest group protest (and support), and partisanship. The noise and the visibility are the very things that cast a harsh light on the Court and reduce its diffuse support. Ultimately, the current decline may be less about what the Court does than about the times we live in and the environment that surrounds the “least dangerous” branch, but it is real nonetheless. One ray of hope is that to the extent that the decline in diffuse support is the result of things beyond the Court’s control, the intensity of the disillusion may be shallow and therefore less damaging to the Court’s legitimacy than the occasional self-inflicted wounds the justices incur. The Court is a product of its times, and these are very partisan times (Abramowitz 2013). The parties and the media are polarized, and the public support for political institutions is declining across the board. The decline of the Court’s diffuse support is in part a function of the overall disillusion with politics and government. The fact that the Court is a victim suggests the overall antipathy of the American people for the current state of affairs, but it also suggests that the Court is less able to hide behind the veneer that it is above partisan politics.

The Gravitational Pull of the Ruling Majority While specific support may ebb and flow, the general diffuse support for the institution remains relatively robust. That diffuse support endures might send the implicit message that the Court should not stray too far from the bounds of public opinion. A Court that continually flaunted public opinion would spend its valuable legitimacy. Some argue that there

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are structural mechanisms that will bring the Court into alignment with public opinion. Regardless of public knowledge and diffuse and specific support, one of the seminal articles in political science maintains that the Court cannot and does not stand for long against the majority. Robert Dahl (1957) argued that the Court cannot long buck majority sentiment (but see Casper 1976). Despite the normative ideal that the Court can and should protect minorities, there are good reasons to think the Court might align itself with public opinion more often than not. Justices are nominated by a president and confirmed by senators who are elected by the public. The power to appoint justices allows the president to impress his philosophy on the Court. Thus, the Court will eventually come to reflect public opinion. In addition, as noted, Alexander Hamilton sought to remind those who might be skeptical of what he labeled “the least dangerous branch,” the Court lacks the “sword and purse.” Thus, the Court has to rely on the good offices of its institutional rivals to see that its decisions are carried out, once again reflecting the public (Epstein, Knight, and Martin 2001). This helps to form the basis of the strategic model of decision making. Some argue that the primary justification for an unelected judiciary is the protection of minority rights. Because of the Court’s independence from the winds of politics, it has the ability to protect insular minorities from the tyranny of the majority. Analysts can also identify anecdotal evidence to show that the Court stands up to the majority. Dahl (1957) dismisses this argument, claiming that the Court is inevitably a part of the national ruling majority. Dahl (1957) contends that judicial review has not been used by the Court to substitute its judgment for the elected branches. Instead, judicial review has been used primarily to legitimize the actions of the national majority. Seldom does the Court “block the will of a law-making majority on an important policy issue” (Funston 1975, 795). As a consequence, the Court does not fulfill the role of protecting the fundamental rights of minorities. It is not necessarily that the Court follows the vagaries of public opinion as much as it is that the nomination process will increasingly bring the Court in line with the national ruling majority (but see Adamany 1973). Dahl’s article was published just three years after Brown v. Board of Education, perhaps the most important decision for the protection of minority rights. I have referred to Brown as creating the modern Supreme Court. So, it is worth asking, does the modern Court still follow the lawmaking majorities? Jonathan Casper (1976) argues that Dahl has overstated the case, and in the two decades since his article, the Court has frequently been a protector of minority rights. Certainly, the Court made important advances in the areas of free speech, freedom of religion, civil rights, and the rights of defendants (Powe 2000; Belknap 2005). The doctrine in each of these areas was decidedly counter-majoritarian. Even when the Court got more conservative under Chief Justice Burger, it did not suddenly

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move in lockstep with the emerging majority (except in defendant rights) (Blasi 1983; Urofsky 1991; Schwartz 1990; Maltz 2000). The modern Court has been more concerned with civil rights and individual liberties, thus providing the opportunity to be a defender of minority rights. In addition, recent Courts have been more activist, using judicial review to strike down more legislation than their predecessors (McCloskey 1994; Keck 2004). Casper (1976) and David Adamany (1973) further argued that Dahl, and also Richard Funston (1975), focused too narrowly in seeking evidence to substantiate their claims. Casper (1976) expands the definition of judicial review to include Supreme Court examination of state policies. The view from that perspective appears quite different. The Court was much more vigorous in negating state laws. The evidence suggests that the Court can and does stand up to the elected branches and public opinion when it comes to civil liberties and individual rights, but stays much closer to the existing majority when it comes to economic cases (Pacelle 1991). But all agree that the confirmation process will provide the opportunity for the president to move the Court in the direction of the elected branches (Yates 2002). There are clearly some instances, and they occur about once every halfcentury, when the Court and public opinion are at significant variance. And the result is typically disastrous for the Court. Periodically, the American political system undergoes a fundamental change (Sundquist 1983). Although there are different means of conceptualizing these phenomena, they are best viewed as some sort of a partisan realignment (Burnham 1970; Carmines and Stimson 1989; Rosenof 2003; Mayhew 2002). Some major economic catastrophe threatens the nation. The party in power, wishing to exploit its current advantage, is unable or unwilling to think outside the box. The out party, with nothing to lose, is able to offer policy innovation. The voters respond by making a large migration from the formerly dominant party to the emergent majority party. The changes are forged in crisis and remain in effect when the emergency passes. They are sometimes referred to as “peaceful American revolutions.” These changes are durable, lasting for a generation or more (Sundquist 1983). The long-term implications create a new majority party that will largely control the political landscape for a number of elections. In the long-term, the system will reach equilibrium. But consider the short-term implications of one of these partisan realignments. In the immediate aftermath of the realignment, the new party typically has gained control of both houses of Congress. In addition, that party captures the White House. So consider what it looks like on inauguration day in Washington: a new president with a specific policy agenda, and a sympathetic Congress with a majority that owes its election to that issue, are ready to launch an ambitious program to alleviate the nation’s woes. The third branch of government is decidedly not aligned with the new order. Rather, the

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Supreme Court is dominated by justices who were appointed by the party that is no longer in favor. The prospects for a constitutional confrontation are excellent. Before the president has the opportunity to make any appointments, the existing Court is out of touch with current public opinion. Think about all of the checks that the president and Congress can wield over the Court, and notice that many of the examples that I used in Chapters 2 and 3 for the exercise of these weapons came under such conditions. The Court had to create its own power, judicial review, after the first realignment when Chief Justice Marshall and President Jefferson were in conflict. The Jeffersonians also attempted to impeach a sitting justice (Smith 1996; Newmyer 2001). The thinly veiled plan, if successful, was to then turn the impeachment mechanism on Marshall. The example of the president refusing to implement a Court directive in Worcester v. Georgia came in the aftermath of a partisan realignment (Scigliano 1971). The last successful attack on the Court’s jurisdiction occurred in the wake of the realignment that came just prior to the Civil War (Powe 2009; McCloskey 1960). And as noted in Chapter 2, perhaps the classic example of a realignment conflict came with the Court Packing Plan. President Franklin Roosevelt, angry that the justices were reading the Constitution in a manner that the voters had clearly rejected, tried to expand the size of the Court so he would have the votes to sustain his legislative agenda (McKenna 2002; Shesol 2010). These realignments occur infrequently, but any successful attacks on the Court leave scars that will affect the institution for a long time and undermine its legitimacy. In 1937, the Court was able to pivot to a new set of issues and redefine itself to recoup some of its legitimacy (McCloskey 1994; Pacelle 1991; Hendershot, Hurwitz, Lanier, and Pacelle 2013). In other periods, the Court was less fortunate and carried a stigma. When Dahl talks about the Court falling in with the ruling elite, he clearly had these periods in mind. Public opinion pushes the justices to change. A messy battle with one of the other branches might provoke a retreat. Ultimately, the president, who represents the new coalition, with the consent of the Senate will have the opportunity to fill vacancies on the Court with like-minded justices, and the Court will come into line with public opinion.

Looking for Janus (the Retrospective Face) In previous chapters, I have created models of decision making that incorporated attitudinal, legal, and strategic variables. In Chapter 1, the overview of the study, I used all economic and civil rights and liberties full opinion decisions since 1953 (see Table 1.2). In Chapter 2, I isolated cases designed to show the impact of the president (see Table 2.2). Chapter 3 considered the role of Congress in influencing the decisions of the Court (see Table 3.2). In Chapter 4, I looked at the role of the solicitor general

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as a bridge between the judiciary and the federal agencies (see Table 4.1). In each of these models, public opinion (the Stimson Mood Measure) appeared to exert a positive influence on the Court’s decisions. In the model in Table 1.2, the president, the House, and public opinion have a statistically significant impact on decision making. Using the ideology of the president and of Congress as control variables, we can see that the impact of public opinion is both indirect and direct (particularly in Table 2.2). To say that public opinion has an indirect impact is to say that it is filtered or mediated through the president and perhaps Congress. The Court may respond to public opinion because the president’s nominees have aligned the Court with public opinion. Many of these decision-making models (see Tables 1.2, 2.2, 4.1, 5.1, and Model 1 in Table 6.1.1) also show that public opinion has an influence over and above the impact of the president and Congress. Thus, the impact of public opinion is direct as well. The model in this chapter (see Table 5.1) is designed to reveal one of the faces of Janus: whether public opinion has an impact on Supreme Court decision making. In this model, I am using the universe of full decisions in constitutional cases, whether economic or civil rights and liberties. These are the conditions that impose the fewest constraints on the Court and thus are the least likely to show the impact of public opinion. Most of the constitutional decisions (1,620 of the 1,914 constitutional decisions, to be precise) involved civil rights and individual liberties. The general notion is that the Court does not follow (and perhaps should not follow) public opinion in cases involving individual liberties and civil rights. Some argue that the ultimate justification for an unelected judiciary is its ability to protect the rights of “insular minorities” and unpopular groups. Table 5.1 (found in Appendix 5 at the end of the chapter) helps us continue our search for the relative impact of public opinion on Supreme Court decision making. As noted, there is no particular reason to think public opinion should affect an institution that is unelected. In this model, I stack the deck against finding the impact of public opinion. I have chosen to examine all the constitutional decisions of the Court in the 1953–2007 terms. Such cases provide the broadest range of discretion for the Court. Because these are constitutional questions, the ideology of the elected branches should not have an impact. And indeed, that hypothesis is confirmed. Remember that the elected branches provide an indirect measure of public opinion. The lack of influence suggests that public opinion’s direct reach is going to be limited. The ideology of the Court (the attitudinal variable) is expected to have the most significant influence on its decisions in these cases. The results conclusively confirm that relationship. Issue evolution also has an impact. As the cases get more difficult, the Court is less likely to make a liberal decision. Existing precedent also influences the Court’s decisions in these areas. The Court pays attention to previous decisions in that area.

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The focal point of this chapter, though, is public opinion, and the results are surprising. Although the magnitude of the effect is rather small, public opinion has a positive, statistically significant impact on Supreme Court decision making controlling for the other variables. As the public gets more (less) liberal, the Court’s decisions get more (less) liberal. This result is modest to be sure, but it still flies in the face of the conventional wisdom that the Court is insulated from public opinion, particularly in constitutionally-based cases. The impact of public opinion, though marginal, is exclusively direct in these cases. The elected branches do not have an influence on the Court’s decision making in the constitutional cases. The model cannot tell us whether the Court was moved by public opinion or just bounded by the mood of the times. But the fact that there is an influence is noteworthy. The impact of precedent and public opinion make normative sense, but there are empirical realities that suggest their relative impacts should be muted. Most notably, the cases that come to the Supreme Court for review vary in shades of gray, freeing the justices from any slavish adherence to precedent. Members of the Court remark that precedent is less pressing in constitutional cases (Marshall, Curry, and Pacelle 2014). In regards to public opinion, the independence of the judiciary suggests that the Court need not worry about the direction of the political winds. And yet the impact of public opinion is striking. As Robert McCloskey (1960, 224) remarked, “The Court has seldom lagged far behind or forged far ahead of America.” It is important to underline that the impact of public opinion in many of the decision-making models presented in these chapters is over and above the influence of the president and Congress, each of which likely also reflects public opinion to some extent. To conclude that public opinion has an impact on the Court’s decision making does not, however, specify the process. The influence could be direct (Casillas, Enns, and Wohlfarth 2011; McGuire and Stimson 2004). The Court may figure out ways to plumb public opinion from litigants, briefs, oral arguments, their clerks, polls, newspapers, or just by functioning in society. By contrast, the Court and public opinion may be synchronized through some indirect linkage. The Court’s decisions and public opinion may both be responsive to the same broader social forces (Flemming, Bohte, and Wood 1997). Alternatively, decisions may reflect public opinion because the Court is responsive to the president or Congress. In either case, the direct relationship between the Court and public opinion might be spurious. The existing literature is hardly conclusive as to the effects of public opinion (Friedman 2009; Mishler and Sheehan 1996; Norpoth and Segal 1994; McGuire and Stimson 2004; Flemming and Wood 1997; Giles, Blackstone, and Vining 2008; Casillas, Enns, and Wohlfarth 2011). The prevailing conventional wisdom is that public opinion imposes at least some constraints and that under some conditions it can be an influence

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on judicial decision making. Davis (2011, 6) argues that though the Court issues a number of decisions that could safely be considered countermajoritarian, “it is still calibrating its actions in terms of its perceptions of the will of the public.” Mishler and Sheehan (1996, 171) argue that public opinion may be filtered through the strategic model through either an indirect or a direct influence. Indirect influence is “mediated largely through the impact of public opinion on presidential elections and the subsequent effects of presidential appointments on the ideological composition of the Court.” This indirect influence stems from Dahl’s and Funston’s replacement hypothesis, which states that public opinion influences judicial decision making through ideological changes in the Court’s membership. Alternatively, Mishler and Sheehan (1996) argue that specific support may directly influence the Supreme Court. Here they posit that influence may be manifested in two ways. The political adjustment hypothesis is basically a variant of the strategic model of decision making. According to this theory, justices strategically reach decisions that do not jeopardize the legitimacy of the Court by not “deviating too far or too long from strongly held public views on fundamental issues” (Mishler and Sheehan 1996, 174; Clark 2011). The second form of direct impact of specific public support is the attitude change/conversion hypothesis that holds that the attitudes or preferences of justices may change over time as a response to changes in the “public mood.” The idea that justices would change their sincere preferences is anathema to the attitudinal model (but see Epstein, Martin, Quinn, and Segal 2007; Epstein, Hoekstra, Spaeth, and Segal 1998). Giles, Blackstone, and Vining (2008) find support for the notion of attitudinal change and ascribe that change in part to public opinion. Such attitudinal change may be a function of elite opinion as in the so-called “Greenhouse Effect” (discussed later in this chapter). As a consequence, public opinion affects Supreme Court decision making through individuals’ level of diffuse support for the Court, as well as their level of specific support for particular policy outcomes that rise from decisions. If the Court wishes to preserve its legitimacy and retain positive levels of diffuse and specific support, it should avoid overt conflict with the other branches of government and pay attention to public mood. Regardless of whether it is direct or indirect, public opinion is a viable factor in understanding Supreme Court decision making (Erikson, MacKuen and Stimson 2002). Carp, Stidham, and Manning (2014, 320) suggest that “the Supreme Court may be singular and unique and that its decision making environment makes the justices particularly susceptible to shifts in the public mood.” The model in this chapter cannot conclusively reveal whether the impact of public opinion is direct or indirect or the source of the linkage. But there is no harm in speculating. There is some evidence that the replacement theory is responsible at least in part. There is a general sense that

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the civil rights and individual liberties decisions of the Warren Court were out of touch with public sentiment. Richard Nixon used that resentment as a campaign issue in 1968 and was afforded numerous opportunities to move the Court’s median to the right. To examine the influence of public opinion more closely, I segregated the Warren Court decisions from those of its successors. The results are revealing and consistent with the conventional wisdom. Public opinion has no influence during the Warren Court (1953–1969). By contrast, the variable is statistically significant in the post-Warren years. Giles, Blackstone, and Vining (2008, 293) argue that “even in the absence of membership change . . . public opinion may provide a mechanism by which the preferences of the Court can be aligned with those of the public.” There is a great deal of anecdotal evidence of attitudinal adjustment as well. Harry Blackmun (Greenhouse 2005; Yarbrough 2008), Sandra Day O’Connor (Maveety 1996), and Anthony Kennedy (Knowles 2009; Colucci 2009) were the most visible examples of ideological migration or at least a reconsideration of past positions.6 The answer, of course, is some complicated combination of the direct and indirect effects. Is the Court in step with the ruling majority, or are its decisions countermajoritarian? The Court may stand up to the tyranny of the majority when it issues decisions in civil liberties and civil rights. It also has not been shy in making controversial decisions since Brown. In aggregate terms, however, the Court does seem to be influenced by public opinion. Controversial decisions often create a public backlash. Yet the results of the decision-making models presented throughout lend credence to the findings of Casillas, Enns, and Wohlfarth (2011) that the Court follows public opinion in many instances, particularly in the nonsalient cases. The Court can follow precedent and public opinion in the majority of cases, building a reserve of good will that it can then spend on salient cases when the justices’ sincere policy preferences can dominate. E. E. Schattschneider (1975, 33–34) famously wrote: “The flaw in the pluralist heaven is that the heavenly chorus sings with a strong upperclass accent.” In Chapter 6, we will see that well-heeled litigants and groups have figured out how to use the courts strategically to shape precedent (and as a result the law) to their designs (Galanter 1974). Perhaps elite public opinion is the real driving force behind the relationship. The Court may cultivate elite opinion, and any connection to public attitudes is a refraction of that rather than a direct referendum.

The Supreme Court Cares About the Elites, Not About You There are some good normative reasons to hope that public opinion affects the unelected Supreme Court. Some argue there is a good practical reason for the Court to adhere to public opinion—protecting its legitimacy.

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Yet some analysts argue that empirically the Court does not respond to public opinion and need not fear a loss of its legitimacy because of public disapprobation. Baum and Devins (2010) argue that the Court’s legitimacy is robust and is not subject to significant damage from the Court’s decisions. While conceding that public opinion reflects Supreme Court decision making, some analysts think the path of influence is more complicated than any simple direct relationship. It is entirely possible that the Court and the public come to the same conclusions not because the latter influences the former, but because they breathe the same air, are exposed to the same events, and reached political maturation in the same society. There is another possible linkage between the mass public and the Court: elite opinion. Members of the Court, as elites, may be influenced not by the mass public but by segments of society and influential public and private actors who then interact with the general public. Thus, the effects of the mass public may be indirect and mediated by elite opinion (Baum 2006; Berkson 1978). So who are these elites? Some of them are found throughout this book: members of Congress, the president, the Office of the Solicitor General, lower court judges, and interest groups as well as the media, law reviews, and other actors who work in and around the legal system. Lawrence Baum (2006) considers the primary audience for judges to be the mass and elite public, their colleagues on the bench, the other branches of government, social and professional groups, policy groups, and the media. Among these actors are those included in strategic models of decision making. Thus, the Court may be reacting to those specialized publics rather than the mass public. Baum and Devins (2010) find evidence of three forms of elite influence on the Court. First, evidence suggests that under some circumstances, the justices respond to segments of the elite that express opinions about prospective and actual decisions. Second, on salient issues the Court aligns itself more closely with the opinions of highly educated people than with the general public as a whole. Finally, they demonstrate that the justices’ voting patterns in salient cases are “consistent with the most popular conception of elite influence among people who are interested in the Court, the hypothesis of a ‘Greenhouse effect’ of elite groups on the Justices” (Baum and Devins 2010). Baum and Devins (2010) argue that elite audiences play a far more influential role than public opinion in shaping judicial decision making. One logical reason for this is the clarity of the message. Whether there is a clear and discernible majoritarian opinion is debatable. While the Court would hazard only an educated guess at the dimensions of mass public opinion, it has a much better grasp on elite opinion. The proliferation of amicus curiae briefs provides various groups with the opportunity to share their perspectives with the Court. Indeed, one function of the

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amicus briefs is to provide the justices with a rough outline of public opinion (Schlozman and Tierney 1986). And Paul Collins (2008) shows that justices can be persuaded by these amicus briefs. There is considerably more to say about this in Chapter 6. Elite opinion can be more persuasive than mass opinion. I started this chapter with the Bowers case, which was roundly criticized in elite circles. In a relatively brief period of time, the Court revisited and overturned the decision in Lawrence v. Texas. Perhaps the most famous example comes from the flag salute cases in the shadow of World War II. In Minersville v. Gobitis (1940), the Court permitted the suspension of Jehovah’s Witness school children who refused to recite the Pledge of Allegiance. The lone dissenter, Justice Harlan Fiske Stone, was praised for standing up for individual rights. Newspaper editorials, lawyers, academics, educators, the Department of Justice, and religious leaders assailed the Court’s decision. In West Virginia State Board of Education v. Barnette (1943), just three years later and with war raging, the Court recanted (Bartee 1984, 178–179; Konvitz 1966). Of course, negative elite opinion does not automatically induce the Court to change doctrine. I started Chapter 3 with the peyote case (Employment Division v. Smith), in which the Supreme Court made a fundamental change in the standard that it was using to evaluate free exercise of religion cases. The reaction of elite opinion to Smith was swift, decisive, and not favorable. Congress passed a law telling the Court to reinstitute the Sherbert standard, and religious organizations of every denomination and stripe lined up in favor of the new legislation. As we saw, the Court did not budge, at least formally (Long 2000). Whether it has drifted back to the earlier standard sub silentio is a question of some debate. Some suspect that a number of justices have fallen victim to the “Greenhouse Effect.” Named for the famed New York Times correspondent Linda Greenhouse who covered the legal beat, it began as a derogatory term to explain why some conservative jurists had seemed to tack to the left. The idea is that the justice would be bathed in the praise of a liberal media. But today, the term can be more encompassing to include any justice who moves to curry some favor from any elite source. As Baum (2006, 142) notes, justices like anyone else want to be liked and respected, and thus they may subtly move toward their most salient audiences. On one level, justices do not need to worry about mass public opinion given their life tenure. In the short-term, justices may care about particular constituents’ attitudes. Primary among these constituents are the solicitor general, the attorney general, and the Department of Justice, counsel for federal agencies, states’ attorney generals, and the legal profession (Baum 2006). The solicitor general, attorney general, and agency counsel interpret the Court’s decisions and advise the White House and agencies on compliance. The solicitor general strategically selects cases

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that will attract a majority of the justices and match the Office’s legal goals and perhaps the president’s policy designs. The attorney general, Cabinet heads, and agency counsel can also, through advisory opinions, litigation strategies, and agency policy and programs, influence the Court’s decisions and doctrine. We considered this in Chapter 4. Policy considerations, like compliance, may affect the scope and application of the Court’s decisions. The Court also has no direct means of mobilizing support for its rulings. Occasionally, presidents have dragged their feet or even ordered officials to disregard the Court’s orders. The president can take a more passive-aggressive stance and assign low priority to enforcement by the Department of Justice. In general, though, presidents, even if reluctantly, accede to the Court (O’Brien 2005, 335). The justices also have constituents and audiences that have longer-term goals. Presidents want to leave their legacies and names in the history books. Why would Supreme Court justices not want to leave similar footprints? Maybe they want their names associated with their contributions to the evolving political theory that includes constitutional interpretations, landmark decisions, forceful dissents that will subsequently be validated, or even a well-turned phrase preserved for posterity. Legions of lower court judges and constitutional law students will have the opportunity to read and apply justices’ philosophies and prose. While public opinion has an impact on the Court’s decision making, Baum and Devins (2010) intimate that the mass public’s view may be filtered through the lenses of more specialized publics. Some of those actors are accounted for in the strategic models, and others are the subjects of chapters in this book. The question of whether Janus pays attention to mere mortals or simply is concerned with other gods and elites remains open. It seems clear that mass public opinion plays a role, but that elite opinion probably has a stronger influence. We will consider a couple more members of these elites—litigants and lower court judges—in the next two chapters. As I noted, Janus looks in both directions, and regardless of whether he symbolically looks backward (public opinion influencing decisions), it seems clear he would look forward. Decisions of the Court are important policy pronouncements, so it is hard to imagine they would have no impact on public opinion. The Framers of the Constitution did not believe that public opinion would influence the Court. They did not view the Court as being a servant of the public will. Hamilton argued that the Court would be a bulwark against the tyranny of the majority. De Tocqueville (1835) agreed, considering the Court to be an aristocracy that would keep the aristocratic virtues that would otherwise be destroyed by democratic rule. The concern was less that the judiciary would reflect public will than whether it could educate the public and lead that opinion (Franklin and Kosaki 1989, 751–752).

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The New School of Athens and the Second Face of Janus Theodore Lowi (1969, 314), in the first edition of his classic The End of Liberalism, compares the justices to modern political theorists: “In the United States the history of political theory since the founding of the Republic has resided in the Supreme Court. The future of political theory lies there too.” I find this to be a compelling argument, but for some reason, it never made it to the second edition. Constitutional interpretation involves the Court with basic and enduring questions of political philosophy (Funston 1978, 216). The Supreme Court is the one government institution that justifies its policy choices and explains its decisions in often lengthy opinions. Whereas a law of Congress or an executive order lays out a policy, the opinion of the Court explains the policy position and provides an extensive justification for the decision. When the justices are drawing the lines between individual liberties and society’s authority or the boundaries between the powers of different layers of government, they base their decisions on the Constitution (Brigham 1999), precedent (Gerhardt 2008; Hansford and Spriggs 2006), and political theory (Silverstein 2009; Tushnet 2003; Bybee 1999; Gillman 1999; Kahn 1994). The written opinions of the justices represent their individual and collective judgments about the meaning of constitutional provisions and the state of social, political, and economic relationships. The need to justify their decisions provides the justices with the opportunity to continue the construction of an evolving democratic theory. The long-term construction of doctrine suggests that the political theory emerging from the Court is cumulative and evolutionary in scope. Furthermore, complementary and competing views may also find their way into print in concurring and dissenting opinions (Pacelle 2009). The Court is sometimes referred to as a “Republican School Master” (Franklin and Kosaki (1989) that is conducting a “vital national seminar” (Funston 1978). This reverses the traditional notion of the relationship between public opinion and the Court. In this instance, it is the Court leading and shaping public opinion, rather than the mass public influencing the justices in their decision making (though in reality, the expectation is that the influence flows in both directions). Thus, Constitutional law is not a fixed body of truth but rather a mode of social adjustment that is ongoing, with the public influencing the Court and vice versa (Funston 1978, 214). Scholars debate the efficacy of this process. Some believe that the Court’s decisions will legitimate policy positions and make them palatable to the mass public. If the Court is a legitimating force, then it can transfer its imprimatur to congressional and presidential actions by upholding them (or more passively by simply allowing them to remain in force) (Dahl 1957). This occurred to a limited degree in the Affordable Care Act case. The Court upheld the law and public approval for it rose,

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albeit marginally. Still, a number of studies show that the public reacts negatively and there is a backlash to some decisions. In the narrative that opened this chapter we saw that the Court’s decision in Lawrence generated an immediate backlash. As I alluded to in that discussion, (as in so much else), the ultimate verdict was more complicated. While the public may have had a backlash to Lawrence, a decade after the decision it was widely accepted and supported. Let’s examine this complexity in some detail and attempt to peel another layer off this onion. Consider the task for the Supreme Court: with no tangible weapons, it has to police the federal judicial system (more about this in Chapter 7), contribute to policy making, educate the public while retaining its support, avoid antagonizing the other branches, and retain its one fundamental resource, its legitimacy. In a long sentence, that is the theme of this book. It is certainly at odds with the notion that the justices are free agents who can do as they please and damn the consequences. Well, as we continue our journey of discovery, let’s examine whether the Court can educate and shape public opinion. According to Ralph Lerner (1967, 129), “Those who drafted the Constitution and thought most coherently about the place of the Supreme Court in the proposed government expected the Court to engage in such high political education.” For instance, the Framers of the Constitution required the justices to ride circuit so they would not be isolated from the people (Lerner 1967, 179). Lerner (1967, 128) argues that the close connection between judicial power and public opinion has “thrust the judge into the role of educator, molder, or guardian of the manners, morals, and beliefs that sustain republican government.” The Framers had to strike a balance between providing the Court with a connection to the public as educator and retaining its independence as an institution (Lerner 1967, 171–172). De Tocqueville (1835) felt that the legal profession would be a saving element for a democracy due to its quasi-aristocratic features. In the Federalist Papers, Publius claimed that judges would be “too far removed from the people to share much in their prepossessions” (Federalist 49). Judges would be further set apart from the populace by virtue of the fact that it was the only branch whose members require special training (Lerner 1967, 165). The courts were originally slated to teach people to be good republicans. As the citizens became more knowledgeable, the judges would progress to the higher role of guardian of the principles of the regime. There was an expectation that the Court would demonstrate political wisdom as well as legal craftsmanship (Lerner 1967, 175–178). The Court’s opinions would be the vehicles for teaching by showing the modes of thought. Lerner (1967, 180) maintains that for the Framers, “Teaching is inseparable from judging in a democratic regime.” This notion of the Court as Republican School Master fulfills an important function. The Court is involved in most societal issues and makes

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controversial decisions. The role as School Master imbues the Court with some of the positive aura that bolsters its diffuse support (Funston 1978). The Court is widely considered to be the authoritative source for all things constitutional (Whittington 2007). Let’s consider how the public might react when the Court makes a decision. Studies show that only a small percentage of the public is informed, and even fewer people are informed accurately. So the decision needs to be salient in order to have any impact. The notion that the Court legitimates policy with its decisions is referred to as the Positive Response Theory, and it is a good description of what occurs: the Court’s decision is accepted by the public and lends a halo of support to the policy (Dahl 1957). Studies do not find this to be a ubiquitous response to Court decisions. Conversely, there is the Backlash Theory, that Court decisions (and remember they are going to have to be salient cases, or like the tree in the forest, no one pays much attention) will generate significant negative reactions. This theory requires the additional step of opponents of the decision rallying public opinion to their side. Just as it is unlikely that all responses will be positive, so it is implausible to think that the Court will simply engender hostility as a rule (Franklin and Kosaki 1989). Of course, there is another alternative, a null hypothesis—the Court’s decision has no meaningful impact. It is unusual for the Court to influence public opinion because the public pays little attention to its work. Before we dismiss this out of hand, consider that it is likely that in many instances the Court’s decision is met with a deafening silence from the public. As Baum and Devins (2010, 1549) argue: It is worth underlining the point that a great deal of the Court’s work is essentially invisible to the public. Decisions in fields such as antitrust and patent law may be highly consequential, but it seems unlikely that there are strong public feelings about those decisions. The exception is in landmark cases, like the Obamacare decision, that are in the spotlight. As Michael Klarman (2013, 195) wrote, Americans thought little about the issue of flag burning until the Court issued two controversial decisions protecting the practice under the First Amendment. He added: “Within six months of a 1990 Supreme Court decision involving the right to die, half a million Americans drafted living wills.” Once again, the answer is a refined combination of these more simplistic theories. More pleasing is the Structural Response Theory, which argues that any salient Supreme Court decision affects many groups, some positively, some negatively. The decision touches off or reignites debate. It may also polarize groups. This would serve a vital function even if it were not necessarily the strict obedience of the legitimacy or positive response theory. Franklin and Kosaki (1989) argued that this

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structural response theory explains the public reaction to Roe v. Wade and helped to shape the development of the issue for the next generation. The Court’s decisions on reproductive rights have invited the influence of public opinion. It became part of presidents’ litmus tests in nominating justices to the Court. Perhaps no other issue has raised the temperature and excited as much controversy during the Senate’s consideration of Supreme Court nominees (Epstein and Segal 2005). Presidents and members of Congress raise their voices on the issue, keeping it on the public agenda. And public opinion seems to affect the Court and its decision as well. Justice Kennedy, who has been at or near the median of the Court, was said to be worried about the political backlash that the Court might trigger by overruling Roe. Kennedy’s support or opposition for particular restrictions was said to reflect national public opinion polls. The imposition of waiting periods and parental consent for abortions for minors were each supported by majorities in national public opinion polls (Calabresi 2008, 89). The concept of the Court as a legitimating institution involves “bringing the nation’s short-run, expedient means into accord with its long-run ends or principles” (Funston 1978, 217). Studies do not find that the Court often legitimates an issue in the public mind; rather, there is a public backlash that may be a function of the controversy of the issues, or of the fact that they involve civil rights and liberties that are notably counter-majoritarian. When the Court does have an impact, it is often negative, at least in the short term. This immediate backlash was evident in the aftermath of landmark decisions like Brown and Roe. However, as noted, the policy-making process and the content of public will does not remain static. Support for civil rights, reproductive rights, and gay and lesbian rights have grown over time. Legitimation and education are long-term processes that gain strength as the Court incrementally builds doctrine. The impact of such decisions may not be instantaneous, but it prepares the people, sets the agenda for other actors, and builds public support and acceptance over time (Epp 1998; McCann 1994; 1999; Funston 1978, 51; but see Rosenberg 2008). Michael Klarman (2013, ix) argues that sometimes “courts take dominant social norms and convert them into constitutional commands.” For instance, when the Court “discovered” a right to privacy, only a few states had laws infringing on those rights. When the Court used Lawrence to overturn Bowers, only thirteen states still had laws criminalizing sodomy, only four targeted homosexual sodomy, and no states were actively enforcing the law. The political resistance to such decisions will be relatively muted or at least short-lived. Other Court decisions hold the potential to create more division. Brown and Roe were decided when the public was relatively evenly divided on these issues. And in the aftermath of those decisions, there was a consequential backlash. Klarman (2013, x) argues that Brown, Roe, and the death penalty cases would have been unthinkable a decade before they

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were decided. In these instances, the Court’s decisions intersected nascent social movements. Though the Court occasionally intervenes against dominant public opinion, it is seldom in the vanguard of a social reform movement (but see Rosenberg 2008). Occasionally, however, the Court will issue decisions that clearly fly in the face of dominant public opinion. The Warren Court bucked public opinion polls by constitutionalizing criminal procedure (Lain 2009; Baum and Devins 2010, 1522–1523). The Court justified its decisions by pointing to other states that had adopted similar measures. The decision in Engel v. Vitale (1962), which banned teacher-led prayer in school, met wide public disapproval (as high as 75 percent opposition to the decision). Rather than retreat in the face of opposition, the Court doubled down a year later by banning the reading of Bible passages and the Lord’s Prayer in Abington Township v. Schempp and Murray v. Curlett (1963). In contrast to the few laws regarding the sodomy and privacy cases, thirty-nine states required or permitted the recitation of the prayer or a daily devotional reading (Dierenfield 2007, 163). The decisions in Johnson v. Texas (1989) and United States v. Eichman (1990), which provided constitutional protection for expression like burning an American flag, also stood against a high public tide. In the wake of Johnson, about 70 percent of the public favored a constitutional amendment to override the decision (Goldstein 2000, 112). Friedman (2009, 15) argues that “the Court and the public will come into basic alliance with each other.” This may reflect the nomination process. Presidents get elected and then move the Court in the direction of public opinion. Perhaps this is because the Court tends to be guided by the dominant political values of the era (Funston 1978, 214). On the other hand, it could be because the Court slowly brought American opinion in line with its decisions. The landmark decision may have generated a backlash, but the incremental construction of consistent doctrine and the continuing political dialogue conditions public response and engenders and builds support. Some maintain that if the Court is teaching a national seminar, “few are enrolled in the course” (Funston 1978, 49). Baum and Devins (2010, 1549) argue that a great deal of the Court’s work is essentially invisible to the public. Further, they maintain that the Court has little to fear from a public that disagrees with its decisions, because its legitimacy is impervious to such disagreement. So how do we account for the apparent relationship between decision making and public opinion? It may be indirectly filtered through elite opinion.

Conclusion It seems a little curious to be concerned about the influence of public opinion on the Supreme Court. The Framers took great pains to insulate the judicial branch from the reach of public opinion. The mode of

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selection and the lifetime tenure would seem to ensure that federal judges would be cloistered from the passions of the public. This would have a modern, instrumental function: the courts could protect civil rights and individual liberties from the tyranny of the majority. For the Framers, if there were going to be a role for public opinion, it was to be as an effect rather than a cause. The Framers hoped that the decisions of the Court would influence public opinion, rather than having the public guide or influence the Court. But there are a number of other reasons to be interested in the impact of public opinion on Supreme Court decision making. On the broadest level, the relationship between public opinion and the judiciary is important because the Court is an unelected policy-maker. It is important to know whether there are any brakes on the Court. The theme of this book is that the Court is constrained by some external forces (at least under some conditions). Congress and the president are two of the logical constraints. In this chapter, the results suggest that the decisions of the Court are influenced by mass public opinion, and those decisions ultimately influence public opinion. The public may also play a role as the last line of defense. The Court lacks the sword and the purse. As a result, the Court must rely on the good offices of the president and Congress. The Court needs to build and protect its legitimacy by adopting judicial restraint. And this is where the public comes in. If the Court moves too far, too fast, the elected branches may take one of two tacks: they can embarrass the Court and expose its weaknesses, or they can simply publicly rebuke the Court. In either instance, the public might be activated (Hall 2011; Clark 2011). Putting the Court in this negative public light cannot be good for the institution. Indeed, Tom Clark (2011) argues that the extent of public support for the Court represents the practical limits of judicial independence. Clark argues that the justices pay attention to public opinion to avoid sanction, and thus they respond to attacks by Congress that might part the curtain and open the Court to broader scrutiny. So what is the relationship between public opinion and the Supreme Court? Despite numerous studies, there are few definitive answers. Indeed, as James Gibson (1990, 290) notes, “In the final analysis it is simply not clear whether the Court responds to public opinion, or shapes public opinion, or whether it responds to the same sort of factors that themselves shape public opinion.” Let’s consult Janus, the two-faced god. Janus looks backward as well as forward. Is the Court affected by public opinion (looking back retrospectively)? Does the Court influence the public through its decisions as a modern Republican School Master (looking forward)? There are good reasons to think the latter relationship is more likely than the former. But the model that we examined in this chapter showed that public opinion did have a modest but positive and significant relationship (see Table 5.1 in Appendix 5).

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Public opinion appears to have a statistically significant impact on the Court’s decisions, and it seems to hold regardless of the type of case. Do the justices hold their fingers up to test the strength and direction of the political winds? Certainly, their decisions could reflect the general will as the conscious choice of an institution that needs public support to protect its legitimacy (Friedman 2009). But we could just as easily interpret the same results as meaning that the justices, as Americans, are just affected by these issues in the same way as most of the public. As Justice Benjamin Cardozo (1921, 167–168) remarked, “the great tides and current which engulf the rest of men do not turn aside in their course and pass the judge by.” More recently, Justice Scalia said: “Ultimately the justices of the Court are taken from society, and however impartial they may try to be, they are going to bring with them those societal attitudes” (O’Brien 2000, 283). The evidence is suggestive but certainly not conclusive. The results of the numerous studies are mixed, but “recent and more exhaustive investigations have begun to map a real, albeit imperfect, relationship between public opinion and jurists’ decisional patterns” (Carp, Stidham, and Manning 2014, 321). These studies seem to suggest that, to some degree and on some issues, the justices do temper their decision making with public opinion. If the Court does follow public opinion, why does it do so? Dahl (1957) and Funston (1978) argue that presidential appointments of justices will create a link between public opinion and the attitudes of the justices. Some argue that the Court is conscious of the need to protect its legitimacy (Clark 2011; Hall 2011). This will give the justices pause to adopt restraint, avoid unpopular decisions, and thus reflect the general ideological position of the public as a whole. Some analysts argue that the justices’ policy preferences are not cast in stone by the time of their appointment and may be responsive to the same events and trends that shape the attitudes of the general public (Giles, Blackstone, and Vining 2008). The lesson is that the Court can simultaneously be a product of its times and at odds with the views of the American people, the states, or federal officials. And while subsequent judicial appointments can steer the Court toward the American people, states, or federal officials, there is no guarantee that a consensus view will emerge among the president, the Senate, the states, and the people. Indeed, given the dramatic ideological gap between Democrats and Republicans, the prospect of a consensus majoritarian view seems more illusory than real (Baum and Devins 2010). If that is the case, then the Court is free to a degree to find its own position. The Court lives a quiet existence, seldom moving into the public consciousness.7 Retaliation or critiques from the other branches raise the profile of the Court and often not in a flattering way. It is difficult for the Court to engage the other branches in a policy debate or to answer their charges. As a consequence, the justices might be motivated by other factors in safeguarding their legitimacy. They might exaggerate the threat to

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the Court and thus over-respond to the public. Alternatively, the other branches of government, with their substantial power over the Court, might act on behalf of the public. If so, the justices would have reason to take public opinion into account (Baum and Devins 2010, 1548). Our understanding of the Court may be shifting. The Court would periodically make a decision that would cause some backlash and maybe harm its public standing. This would cost the Court some of its specific support. But typically that was ephemeral, and the overall diffuse standing of the Court would remain positive. The Court would remain safely ahead of the other two branches. More recently, the Court seems to be hemorrhaging some of its diffuse support. The source of this decline is uncertain. The Court may be facing collateral damage from the general pox on the rest of government. The broad notion that growing partisanship has poisoned the well of American politics may have also spread to the Court. The Court has taken some flak for decisions like Citizens United and Obamacare, but the decline in the diffuse support had been eroding before those decisions. The Court remains knee-deep in controversial issues. In some respects, it is surprising that the Court maintained its diffuse support for so long. Since the Great Depression and the New Deal, the federal government has increasingly gotten involved in all economic aspects of citizens’ lives. In a series of cases that began a few years before the Depression and culminated in the decade after Brown, the federal government began to assert itself over civil rights and individual liberties. The central government continued usurping the prerogatives of the states. The judicialization of the law could not occur without the cooperation of the other branches of government. Congress collaborated by elevating individual members’ reelection and constituency over policy making (Mayhew 1974; Fisher 2000). This created a vacuum that the Court seemed all too willing to occupy. Presidents fueled the process by making these issues the litmus tests for their judicial nominations (Abraham 2008; Epstein and Segal 2005; Steigerwalt 2010) and through their increasingly aggressive use of the Solicitor General in these areas (Pacelle 2003; Caplan 1987; 1988). The Court was willing to engage with these issues (Keck 2004). The two faces of the relationship between public opinion and the Supreme Court suggest a complicated dynamic. There are clearly some effects, but there is a great deal of disagreement over the extent of the impacts. The impact of some special publics is beyond question. Baum and Devins (2010) argue that when mass and elite attitudes coincide, the Court is likely to align itself with that consensus. But when elite and mass opinion diverges, the Court tends to align with the elite groups. Litigants who use the courts to pursue their policy goals have well-developed strategies to influence decision making. These litigants directly engage the Court and exert more influence than mass or elite publics. To examine the impact that these elite repeat players have on decision making, we turn to Chapter 6.

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Appendix to Chapter 5

In this chapter, we considered the relationship between public opinion and Supreme Court decision making. In Table 5.1 I examine one aspect of that relationship (one face of Janus): the impact of public opinion on Supreme Court decision making in constitutional decisions. To reiterate, the Framers set up the judicial branch to be independent of public opinion. In this model, I have segregated the constitutional cases. Such cases should limit the influence of public opinion. Yet, as we saw in this chapter, public opinion has a modest, direct impact on the Court’s decision making. Let’s examine the influence of the various factors a little closer. The results of the model are shown in Table 5.1. As expected, the ideological balance of the Court (the attitudinal variable) has a large positive and significant influence on decision making. As the Court moves one standard deviation in a liberal direction, the probability of a liberal decision increases by .09. Most of the constitutional cases are civil rights and individual liberties, and they tend to be particularly salient to the justices. In addition, these are the cases that carry the fewest constraints for the Court. The other branches cannot overturn unpopular or controversial decisions without extraordinary measures. As noted, civil rights and individual liberties are typically the litmus test issues that presidents have used when nominating prospective justices. As a result, it is a bit surprising to see that the presidential ideology variable does not have a statistically significant influence on the Court’s decision making in this area. While the results of this model do not reveal it, there is a clear dichotomy between these cases. If we separate the constitutional economic cases from the civil rights and liberties decisions, the differences are profound. The president has a positive, statistically significant impact on Supreme Court decision making in constitutional civil liberties cases, but there is no discernible presidential influence in constitutional economic cases. In fact, not only is the relationship not statistically significant, it is not even in the correct direction. The results suggest that the Court’s decisions do not reflect the need to attend to the policy positions of the House or the Senate. Neither house exerts any statistically significant impact on the Court’s decisions. These

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Table 5.1 The Influence of Political and Legal Factors on Supreme Court Decision Making, 1953–2007: Constitutional Cases

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Full Opinion Decisions Constitutional Cases Independent Variable

Θ (S.E.)

Supreme Court Ideology

2.72** (.45) .20 (.13) .26 (.45) –.18 (.86) .43** (.05) –.48** (.08) .02* (.01) –.01 (.77) LL = –1221.46 χ2 = 207.6 P < .0000 N = 1914

Presidential Ideology House Ideology Senate Ideology Precedent Issue Evolution Public Mood Constant

Δ Prob. Liberal Decision .09 .02 .00 –.00 .19 –.12 .03 —

Note: (*) = p ≤ .05, and (**) = p ≤ .01. These models were estimated with logit regression using Stata 12.1. Standard errors in parentheses are robust. Simulated probabilities are calculated from 0 to 1 for dummy variables and from the mean plus one standard deviation for continuous variables. The predicted probability for Precedent represents the difference between the probability of a liberal decision when the Court confronts a liberal precedent versus the probability of a liberal decision when there is a conservative precedent.

are constitutional issues, and for Congress to override the decisions both houses would need to muster extraordinary majorities. Rather Congress may need to resort to other mechanisms, such as threatening to tamper with the jurisdiction of the Court or initiating some type of a curbing measure to influence its decisions (see Chapter 3). The lack of influence from any of the strategic variables (the elected branches) has some implications for public opinion. Because they are elected, the president and members of Congress face the voters and speak with the legitimacy that comes from the ballot box. Thus, it would not be surprising if the Court paid attention to them as an indirect view of public opinion. The results do not support that conclusion. Any impact of public opinion, however modest, is direct.

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The two legal variables have a significant impact on decision making in these cases. Both issue evolution and precedent influence the decisions of the Court. The probability of a liberal decision in the current case would be .19 greater if there is a liberal precedent rather than a conservative one. While .19 is statistically significant and substantively important, the value underlines the fact that the impact of precedent is limited, particularly in constitutional cases. If the legal variable were dominant, an existing precedent would have a more substantial impact on decisions. And for issue evolution, as the facts in a case get more difficult (by one stage or category), the probability of a liberal constitutional decision declines by .12. Through all the analyses, the influence of public opinion has been modest but persistent. The Court is somewhat attentive to public opinion despite its independence. There is an ongoing debate concerning whether the Court really moves in concert with changes in public opinion, or whether both are simply carried by the same currents. To the extent that public opinion influences the Court, it is an acknowledgement that protecting its own legitimacy, which is predicated on public support, is a significant constraint. The current state of affairs suggests that public opinion may have an increasing influence over the next generation. The Court is currently in a bit of a decline in its levels of public support. At this point, that does not appear to have cost the Court a dramatic reduction of its precious legitimacy. But the continued ebb of support could reach a tipping point that would cost the Court dearly and linger. To avoid those uncertain prospects, the Court may keep its finger on the pulse of the public a little longer and a little more firmly.

Notes 1. In the DOMA case, one brief did not take a side. In the Proposition 8 case, two of the briefs did not advocate on behalf of either side. 2. When President Obama announced that the government would not support DOMA, it fell to Congress to decide how to proceed. The minority that wanted to defend the act hired King & Spaulding, the firm of former Solicitor General Clement, to argue for the law. The firm was publicly criticized by lesbian and gay groups for taking the case. In response, King & Spaulding decided to withdraw from the case. Clement resigned from the firm and continued to prepare the case. In his letter of resignation from the firm, Clement wrote that “representation should not be abandoned because the client’s legal position is unpopular. . .” (Lat 2011). 3. One good example of this is the use of American political thought, like the Federalist Papers, as a means of framing issues and calling upon “higher authorities” (Corley, Howard, and Nixon 2005). 4. It is important to note that there is a possible slippery slope here for the individual justice. In Chapter 1, I made reference to the “golden rule of precedent”: a justice supports a precedent she may not like so that her precedents will be respected later. A similar process can occur here. A justice who lambasts

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a colleague in print may serve his purpose of undermining the specific support attached to that particular case, but he risks emasculating the diffuse support that he may need to marshal for his opinions. 5. This is not to argue that the later confirmations of Sonia Sotomayor or Elena Kagan were not important. But the resignation of Justice O’Connor, the first woman, and the death of Chief Justice Rehnquist trained some additional attention on the Court and the process. Further, Alito was a second choice. President Bush nominated his friend, Harriet Miers, but had to withdraw the nomination in the face of strong opposition from his own party. The result was a brighter spotlight that lingered longer than usual. 6. Going back further, Ulmer (1973; 1979) argued that Hugo Black and William Douglas showed parabolic levels of changing support for civil liberties and civil rights over their long careers. 7. It is clear that the justices like this arrangement. They consistently reject any overtures toward televising oral arguments. Former Justice David Souter opined that it would happen over his dead body (Sabato 2008). The justices like controlling their own agenda with respect to public visibility (Davis 2011).

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“Lobbying” the Judicial Branch

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Are you a sports fan? If you are anything like me, you live and die with the fortunes of your favorite team. Rooting for your team also means that you need to develop an antipathy for its main rival. But what happens when two hated rivals are matched? What happens on the crisp autumn afternoon when the University of Michigan plays Notre Dame in football? Or when the New York Mets meet the Boston Red Sox? Who does one root for when the Tennessee Volunteers women’s basketball team tips off against the Fighting Irish of Notre Dame?1 As far as I can tell, it is impossible for both teams to lose. And virtually every sport has eliminated the opportunity for a tie. Such matchups may have been the impetus for the quote “the lesser of two evils.” In the end, I am left hoping that one team suffers a soul-crushing defeat while the winner has a Pyrrhic victory.2 In 1986, the Supreme Court had the equivalent case on its docket: Larry Flynt, the pornographer, facing off with Reverend Jerry Falwell, the self-proclaimed leader of the Moral Majority. And this battle had some consequential stakes—the First Amendment, freedom of the press, and freedom of expression. Who does one root for when two of the most reviled men in America are adversaries? Flynt, the editor of Hustler magazine, often referred to himself as a “scumbag.” Rodney Smolla (1990) called Falwell “a hustler” in his own right. Most people probably rooted for both men to lose. And unlike the typical sporting event, that was possible. The question was, would there be collateral damage to the First Amendment. The case became necessary after a parody of a liquor advertisement was published in Hustler magazine. Campari, an aperitif liqueur, had used an effective public relations campaign that asked celebrities or successful individuals if they recalled “their first time.” The double entendre was meant to mask the meaning of the first time the subject tried this particular drink. In his parody, Flynt portrayed the first time Reverend Falwell had Campari and how it led to him having sex with his mother. At the bottom of the page was this disclaimer: “ad parody—not to be taken seriously.” Reverend Falwell sued Flynt and his magazine for invasion of

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privacy, libel, and intentional infliction of emotional harm. At the trial court level, the judge threw out the invasion of privacy issue. The jury decided in favor of the magazine on the question of libel, holding that no one could reasonably believe the faux advertisement was true. But the jury awarded Reverend Falwell $200,000, accepting his claim that the article represented an intentional infliction of emotional distress. According to Smolla (1990, 158), “There was great internal pressure on the jury to work out its own instinctive brand of ‘juster justice.’” That last issue was the key question for the Supreme Court case that would be immortalized as Hustler Magazine v. Falwell. Because of the split verdict, each of the parties both prevailed and lost. This permitted both Flynt and Falwell to appeal the verdict to the Fourth Circuit Court of Appeals, and each side availed itself of that opportunity. The Fourth Circuit was unanimous in its decision. The three-judge panel upheld the trial court judge on the decision to dismiss the invasion of privacy claim. The Court of Appeals ruled that this was not libelous but upheld the monetary judgment that this was intentional infliction of emotional distress. Thus, the court ruled that First Amendment protections did not extend to this parody. As Smolla (1990, 168) wrote, “The Fourth Circuit’s opinion was a great victory for Falwell and a stunning defeat for Flynt and Hustler. Moreover, the opinion hit the media world like a bombshell.” Attorneys for Flynt filed a writ of certiorari asking the U.S. Supreme Court to review the decision of the Fourth Circuit. Attorneys for Falwell asked the Court to deny the petition, thus leaving the lower court judgment standing (and as precedent for the Fourth Circuit). Flynt and Falwell each had a significant incentive in winning the case, but those were personal incentives. The impact of any Supreme Court decision is seldom confined to the two parties in the particular case. A case of this magnitude would have profound impact on freedom of expression and freedom of the press. The decision in this particular case, of course, would affect the two litigants, but the precedent that emerged from the decision could have a sweeping impact on First Amendment law and on virtually every newspaper and media outlet. A Supreme Court decision is a precedent that is binding on similar cases. But maybe even more significantly, such a decision and the precedent it creates will spill over to related questions. This is the hidden danger for interest groups. They have to monitor the lower courts to see if there are any potential cases that they can use to advance their ideals (Kobylka 1987; 1991; Wasby 1995). But they also have to be wary of a legal “time-bomb,” a case that is out there that can wreak havoc for groups that are not involved but may have to live with the consequences of a bad decision. For many groups, Hustler v. Falwell was that case. Would the justices be swayed by the facts of the case, the tasteless parody? Would the justices conflate the message with the messenger?

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As we will discuss later in this chapter, groups have two means of using the Supreme Court. First, they can sponsor cases. Sponsoring cases is accomplished by being one of the parties to the case. This involves paying the legal freight charges and controlling the pace and locus of the litigation (Wasby 1995; Pacelle 2009). This provides the group with the ability to control and sequence the litigation efforts, but it is typically quite expensive to adopt this strategy. There was no opportunity for groups interested in First Amendment law to do that in this case. The alternative is to enter a preexisting case with an amicus curiae (“friend of the court”) brief. Such a brief allows a group who is not a party to the case, but will be affected by the decision, to express its opinion. Groups adopting this tack sacrifice control over litigation, but they conserve resources because this alternative is less costly. The amicus brief was the only option available for groups representing the more mainstream media in this case (Collins 2008; Pacelle 2003). A total of eight amicus briefs representing hundreds of newspapers, publishers, cartoonists, reporters, as well as the American Civil Liberties Union were filed. These groups knew the case was too much of a risk for them to remain on the sidelines. A negative Supreme Court precedent could “unravel major elements of the First Amendment jurisprudence that had evolved in the last thirty years” (Smolla 1990, 178). The rules for amicus curiae briefs are relatively informal. Both sides typically have to agree to admit the additional briefs. In this case, however, no groups lined up in favor of Reverend Falwell, and his attorneys did not agree to the participation of these outside groups. Still, the Court permitted the representatives of the media to enter the case (Smolla 1990). That may have been a first harbinger of the ultimate resolution of the case. The groups that filed amicus briefs in this case stated two clear principles. First, they sought to distance themselves from the message and the messenger. They found Flynt’s diatribe offensive. Second, because the case was before the Supreme Court, they wanted the justices to be aware that any decision would have broader consequences. As the brief for the ACLU and the three major networks stated, “Amici have no quarrel with Falwell’s argument that the publication in suit here is crude and tasteless” (Brief, Hustler Magazine v. Falwell). The Amicus Curiae of Richmond Newspapers, Inc., which included the New York Times Company, as well as the Times Mirror Company, the American Newspaper Publishers Association, and the Magazine Publishers Association stated that, “The ad parody in this case was neither gentle nor genteel; its shock effect was purposeful, and to most, offensive” (Brief, Hustler Magazine v. Falwell). Their amicus brief added that, It is easy to be repulsed and offended by the speech under attack in this case. The words published by Hustler have been described by Judge J. Harvie Wilkinson III, who dissented from the denial of

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a rehearing, as a “base parody” that is “unworthy” of the grand American tradition of public satire.3 None of the groups felt comfortable with the idea of Flynt protecting the First Amendment. They felt compelled to file supporting briefs because they feared that left to his own devices, Flynt would not protect their interests. The Richmond Newspapers brief (Brief, Hustler Magazine v. Falwell) stated that, Petitioners are not in a position to represent Amici. The publication out of which this case arises was, in the eyes of many, indecent and outrageous. Amici are supporting Hustler only because of the principle at stake in the case. The ultimate fear for the mainstream media was that a precedent from this case would adversely affect freedom of the press. In New York Times v. Sullivan (1964), the Court ruled that it would be close to impossible for a public official or public figure to prove libel. Such a claim would need to show that the media accusations were false, caused harm, and were made with reckless disregard for the truth. While the lower court judge dismissed the contention that this case involved libel, the “intentional infliction of emotional distress” claim would create a back door for public figures looking to blunt media criticism. The ACLU brief (Brief, Hustler Magazine v. Falwell) noted that, In particular, this Court’s landmark decision in Sullivan will be substantially undermined if the carefully crafted constitutional rules applicable to defamation can be evaded merely by relying on the common law tort of intentional infliction of emotional distress. Moreover, by permitting a finding of liability without any finding of falsehood, the decision below will inevitably have a severe chilling effect on free expression. This case presents the question of whether public figures should be allowed to sidestep these fundamental constitutional protections for the press by being able to transform a failed libel action into a successful claim for intentional infliction of emotional distress. One of the reasons that libel law protects the media is that the public figure or public official has the visibility and thus the ability to find outlets to answer the charges. Falwell certainly could command national attention. Indeed, he used Flynt’s scurrilous attack as a means to raise money for his organization. Richmond Newspapers argued that the precedent set by the lower court’s decision, if allowed to stand, would threaten the ability of publishers to present a diversity of views on important public subjects. The same brief added that,

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This counterattack by Falwell is precisely the sort of self-help remedy that the Court contemplated in Gertz [v. Robert Welch, Inc.]. Falwell used the media to “counter the distress” by bluntly and colorfully attacking Flynt. That attack was financially lucrative for Falwell, and it served as a useful device for using his own speech to further his ideological positions. This is exactly the sort of response that the First Amendment is intended to encourage. The salvos between Flynt and Falwell give true meaning to the ideal of wide-open and robust debate. (Brief, Hustler Magazine v. Falwell) The Reporters Committee for Freedom of the Press added that, Petitioners’ parody was published in a magazine known for its bold editorial bent, and to an audience accustomed to the stinging satire common in that magazine and the entire genre of adult magazines; it was published in the course of an informal social and philosophical debate on human morality, on which Petitioners and Respondent take diametrically opposed views and could be expected to resort to hyperbole; and its content was so outlandish that no reader could interpret it as fact. (Brief, Hustler Magazine v. Falwell) This chapter is about litigants who use the Supreme Court. They represent a specialized form of public opinion. Many mainstream members of the media were afraid to allow Larry Flynt to carry the banner of the First Amendment into the Supreme Court. The case presented a novel constitutional question. In settling that question, the Court had the potential to strengthen or weaken the protections of the First Amendment. In effect, these groups were urging the Court to tread carefully with the case. The fear was that the Hustler case would yield a negative precedent that could spill over to other forms of speech and expression. The media hoped to join the case to push the boundaries of First Amendment doctrine. But at the same time, these groups had feared a harmful decision and had to argue to contain the damage by asking the Court to limit any negative precedent to the specific facts of the case and to avoid making a sweeping judgment that might adversely affect the mainstream media. It is no wonder that the mainstream media were leery of the case and the implications of the ultimate decision. Whether the impact of these external groups was consequential or not, we will never really know, but the result was certainly to their liking. The Court held that public figures could not recover for the intentional infliction of emotional distress without showing that the offending publication contained a false statement of fact that was made with actual malice, the New York Times v. Sullivan standard. Thus, the Court extended the protection of the First Amendment from editorials and reportage to parodies and satire. It was not a surprise that the Court decided in favor of Flynt and Hustler, but the fact

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that the decision was unanimous (8–0, with Justice Kennedy not participating) and rather broad in its scope was “stunning” (Smolla 1990, 298). Smolla (1988, 474) called the Court’s opinion “a triumphant celebration of freedom of speech.”

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Because That’s Where They Make the Policy In Chapter 5, we examined mass public opinion and its influence on the Supreme Court. The groups that frequently use the courts are a specialized form of public opinion. They are the most attentive of the publics that intersect with the Court. These groups are focused on specific support of the Court through its decisions concerning the issues that are salient to them. They can help the Court to build doctrine coherently or hinder those efforts (Pacelle 2009). They have a variety of ways of influencing diffuse support as well, through lobbying the other branches and attempting to enhance public support or raise criticism of the Court. When the notorious bank robber Willie Sutton was asked why he robbed banks, he reportedly replied, “because that is where they keep the money.” Groups use the courts because they have increasingly become important centers of policy making (Collins 2008; Vose 1959; Wasby, D’Amato, and Metrailer 1977). It is tempting to think of courts as adjudicating the rights and duties of the two parties in a particular case, but as one moves up the judicial hierarchy, the questions of law increasingly become questions of public policy. The U.S. Supreme Court has long been an active participant in the construction of national public policy. It is hard to look at decisions like Brown, Roe, the Affordable Care Act case, or even Hustler v. Flynt and think anything different. At times and in certain policy areas, the Court has assumed an interstitial secondary role in making policy. During other periods and in different domains, the Court has been the primary force (Pacelle 1991). Regardless of the Court’s relative prominence in the overall policy-making scheme, the notion of how an institution initiates policy change is critical. Analysts of the Court have long observed that the institution creates and builds policy though the development of judicial and constitutional doctrine (Sunstein 1999; Wahlbeck 1997; Pacelle 2009). The Court has always been a policy-maker, at least since Marbury v. Madison (1803). It has exhibited occasional (and more frequently of late) bursts of judicial activism. Since Brown v. Board of Education, the Court has actively maintained that it is the primary, if not the sole, interpreter of the meaning of the Constitution (Whittington 2007; Powe 2009). The Court is and has been a battleground for social and economic policy (Collins 2008, 2). Back when Alexis de Tocqueville (1835) visited the new republic in the early nineteenth century, he famously remarked that scarcely any issue does not wind up in the courts. He devoted a chapter to the courts and the unique way in which Americans entrusted it with political questions.

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Of course, de Tocqueville was present when the Marshall Court was helping build the nascent nation. And while there have been ebbs and flows in the activism of the Court and its willingness to insert itself into the center of political debates, there can be no denying that the Court is a fundamental political actor, and groups that do not participate in the judicial process do so at considerable risk (L. Epstein 1985). The Court asserted judicial activism in issues like civil rights and individual liberties and in cases like Brown and Roe v. Wade (Rosenberg 2008). Part of the Court’s power has come from its own design, but it has also profited from the abdication of Congress and, to a lesser extent, the president. With the elected branches trying to avoid controversial issues, a policy vacuum was created. And just as nature abhors a vacuum, so does American politics. The Court has increasingly thrust itself into the major issues of the day. Members of Congress are thought to be more concerned with getting reelected and thus less interested in confronting issues that will provoke opposition (Mayhew 1974; Parker and Davidson 1979). Members prefer to bring particularistic benefits to the people back home. With the Court willing to assume the mantle of policy leadership, members of Congress and political groups of all ideological stripes rarely seem to refrain from “taking shots” at the Court’s legitimacy when such critiques can advance their own political interests (Marshall, Curry, and Pacelle 2014). The Court has some significant constraints on its ability to formulate coherent public policy. Some of those constraints are the subject of previous chapters, like the president (Chapter 2) and Congress (Chapter 3), and the next chapter, the lower courts. The Court lacks the sword and the purse and must rely on its institutional partners to see its decisions implemented and the lower courts to see its precedents faithfully interpreted. Some analysts argue that the Court lacks the capacity to make coherent public policy (Horowitz 1977), is ineffective (Rosenberg 2008), and needs to act incrementally (Sunstein 1999). Others see the Court as the only hope for social justice or equality (Epp 1998; McCann 1994). Clearly, there are also some procedural constraints imposed on the justices. For one, the Supreme Court is not a self-starter. The justices cannot address an issue until it shows up on its docket in the context of a properly presented case or controversy. As a result, the Court needs litigants to bring such cases to its docket in the form of writs of certiorari. This can limit the ability of the Court to be systematic in addressing public policy issues, building coherent doctrine, and sequencing innovation (Pacelle 2009).

Interest Groups, Pluralism, and Political Litigation What image does one tend to have of interest groups? They used to be characterized as shady characters emerging from smoke-filled rooms to buttonhole some member of Congress to support some project that might

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not be in the public interest. The very name “lobbyists” conveyed where they did they work. In the fifties and early sixties, they were referred to as “pressure groups,” and the moniker was not meant to be flattering (Truman 1951; Cater 1964; McCool 1990). More recently, they are seen in thousand-dollar suits with reams of money to support incumbents and challengers who are sympathetic to their causes. Birnbaum and Murray (1988) may not have invented the term “Gucci Gulch,” but they certainly popularized it to describe the space where lobbyists interact with elected officials and the trappings that show their success. And though we do not tend to think of interest groups as venturing forth onto the judicial turf, they are ubiquitous. This is a place where we would see a parallel: highpriced lawyers in their best suits at oral arguments in front of the Supreme Court, their own “Face Off at the Prada Podium.” External policy entrepreneurs play an important role in the American political system. By design, the Constitution created a fragmented policy process based largely on the principles of separation of powers and checks and balances. These devices have prevented tyranny, but at the cost of efficiency and the ability to construct coherent policy. The framers of the Constitution recognized that factions would benefit from the system (Federalist 10). Indeed, the power of interest groups in bridging the gaps created by the Constitution has been a central feature of the U.S. political structure (Lowi 1979, 50–63). Devices like separation of powers and federalism have created a variety of points of access in the American political system. Thus, groups could seek policy change at the national, state, or local level. They could seek to move their issues through the legislative branch, the executive, or increasingly through the courts. The significance of policy entrepreneurs extended to the judicial arena during the period of the modern Court. As the Court became more active in policy making, groups who were shut out of the political process had recourse (Vose 1959; Wasby 1995). The use of the amicus curiae brief has provided the opportunity for organized litigants to participate in the policy-making process through the courts. On the broadest level, a wider array of groups participates in the Court than in Congress or the executive branch (Collins 2008). Institutional norms and rules structure group participation and organizational behavior. There are more barriers to participation in the elected branches, and thus it is more elite and less representative. As Collins (2008, 167– 169) points out, access to members of Congress is largely geographic and done through campaign contributions. Access to the president depends on ideological proximity. By contrast, amicus access is easy. Group access is open with few rules, norms, or barriers and thus does not exclude any participation. While amicus briefs were not uncommon as the modern Court dawned (occurring in a quarter of the cases), they have become ubiquitous. In recent terms, it is rare to find a case that does not have at least one amicus brief. Figure 6.1 shows the dramatic linear growth in the percentage

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1945 1950

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Figure 6.1 Percentage of Supreme Court Decisions with Amicus Activity, 1946– 2012 Sources: Epstein, Segal, Spaeth, and Walker (2007); Collins (2012). I also want to thank Paul Collins for making his data available to me.

of cases with amicus briefs. We will see how this has complicated the work of the Court. While the early use of amicus briefs may have favored the “haves,” Collins (2008, 168) shows that for the last few decades, conservative and liberal groups participate in relatively even numbers. For many years, businesses and corporations were able to use the Supreme Court to their advantage. This reinforces the idea of Robert Dahl (1957) that the Court would reflect the dominant coalitions of the day (see also Powe 2009). The Marshall Court built a national infrastructure to help business survive and flourish (Newmyer 1968). During later periods, the Court often undermined legislation or reinterpreted constitutional amendments to protect business (Ely 1992; Kens 1998). Well before the process of selective incorporation of the Bill of Rights, judicial power was used “to drive a wedge of constitutional uniformity through heterogeneous sectional and economic groupings” (Lerner 1933, 668). The Court altered the Fourteenth Amendment to assist corporations and used the Commerce Clause (Shesol 2010), substantive due process (McCloskey 1994; Labbe and Lurie 2003), the Contract Clause (Fliter and Hoff 2012), and federalism to invalidate state and federal laws. Despite the celebrated admonition by Justice Oliver Wendell Holmes, the Court virtually enacted Herbert Spencer’s Social Statics (Schwartz 1993,

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174). Theodore Roosevelt claimed that judges were “an insurmountable barrier to reform” (Powe 2009, 180). The law is both a mirror and a motor. It is a mirror in that it reflects society. But the law also moves society in the direction perceived to serve “the felt necessities of the time” (Schwartz 1993, 174). Lucas Powe (2009, 177) argues that the progressive impulse swept through Congress emphasizing nationalism and equality. Congress passed a number of constitutional amendments and sweeping regulatory legislation. The Court adopted a “judicial dualism,” moving sometimes to halt the regulatory movement in its tracks, but sometimes concurrently they ratified inroads on the free enterprise ideal and sought to moderate, not to stop, the growth of governmental intervention (McCloskey 1994, 91). According to Schwartz (1993, 174–175), the Court ultimately tried to prevent “the danger of any government interference with the economy, the danger of subjecting corporate power to public control, the danger of any restriction upon the rights of public property, the danger of disrupting the social and economic status quo . . . ”. The Court’s attack on the New Deal led to a constitutional crisis that cost the judiciary a great deal of its legitimacy. The Hughes Court was pushed to the precipice by Roosevelt, who sought to demean the institution as well as emasculate it. The Court decided to adopt judicial restraint in future economic cases. That seemed to relegate the Court to secondary status. But instead of accepting its fate, the Court constructed the preferred position doctrine. The Court dropped a footnote in an economic regulation case that would become a precursor to judicial activism in civil rights and civil liberties (Shesol 2010; Pacelle 1991). The liberal Warren Court fulfilled the promise of the preferred position doctrine and threw open the doors of the judiciary to typically downtrodden groups (Powe 2000; Wasby 1995; Walker 1990). The use of the courts by interest groups has been purely instrumental. Most groups were more or less forced into the courts either offensively or defensively. Groups sought access that was denied elsewhere. The story of the recent Court reflects a dramatic increase in group litigation. Writing back in the midsixties, Nathan Hakman (1966; 1969) showed that fewer than 20 percent of Supreme Court cases had amicus brief activity. Today it would be extremely difficult to find many cases that do not have a broader cast of characters beyond the petitioner and the respondent. And it is important to add that increasingly an amicus brief may speak for multiple groups, as we saw with some of the briefs filed in the Hustler v. Falwell case. The modern Supreme Court is marked by the expanded notions of group litigation. Traditionally, groups used the courts because the other branches of government were unreceptive. Civil rights groups who had little hope of getting their legislation through the House or a Senate filibuster began to use the courts and had success (Vose 1959). The National Association for the Advancement of Colored People (NAACP)

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is considered the gold standard of strategic litigants. The NAACP built a litigation strategy that ultimately led to overturning Plessy v. Ferguson (Vose 1959; Wasby, D’Amato, and Metrailer 1977; Wasby 1995). The group created the road map that groups of all ideological stripes would copy. The NAACP did not invent these tactics, but they improved and disseminated them. They borrowed heavily from the litigation arm of the Jehovah’s Witnesses but adapted and refined the script (Peters 2000). Other groups used the courts because their issues were inappropriate for the other branches (Walker 1990). The American Civil Liberties Union (ACLU) had to use the courts to address issues like the rights of the accused and protection of unpopular ideas and minorities. Groups interested in protecting the rights of the accused or those with unpopular ideas had no hope of navigating the elected branches. The Court was often willing to provide them an outlet and stand up for their rights or liberties. The underdogs found a receptive branch of government and were able to shape the law to their liking in a number of areas. But times change, and the political structure pivots in response. When the ideological tenor of the Court changes, so does the composition of the groups that seek to avail themselves of the judicial branch. Indeed, those groups that had traditionally been advantaged were finding that some of their victories in the elected branches of government were being undermined in the courts. As a consequence, groups began to use the courts to protect the gains that they made elsewhere (L. Epstein 1985; Pacelle 1991; Baird 2007; Teles 2008). Groups like the ACLU, the NAACP, the National Organization for Women, and the Washington Legal Foundation have never left the field. They continue to press their policy goals. Their success to some degree is based on their litigation strategies. And those strategies are strongly tied to the composition of the Supreme Court. This is one of the reasons that such groups are so visible and active when a vacancy opens on the Supreme Court (Steigerwalt 2010). It speaks to the close relationship between the Court and organized litigants in shaping doctrine and policy. Perhaps such distinctions either did not matter or were of degree rather than kind, but analysts used to refer to organized group efforts to use the judicial branch as “political litigation.” This phrase may have seemed like an oxymoron to those who took a nobler view of the judiciary. Political litigation would be contrasted with ordinary litigation. If such a distinction made any sense at the Supreme Court level in some distant past, it means little today. Virtually all cases before the Supreme Court are “political” in every meaningful sense, though granted some may be more equal than others. The distinctions between political litigation and ordinary litigation make sense in lower courts where norm enforcement dominates and the decisions in particular cases have no relevance to the next case on the crowded docket (Baum 2013). But when policy entrepreneurs get involved, the stakes grow.

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Parting the Curtains and Opening the Door: The Dance of Litigation Because the Supreme Court is not a self-starter, the justices must wait for petitions to be brought before them. There are two parts to the Court’s agenda. The institutional agenda is the sum of the petitions for certiorari and the few writs of appeals (Perry 1991; Estreicher and Sexton 1986). They represent the demands of the litigants. The decision agenda is the cases that the Court agrees to decide. The significance of the agenda may be most evident in the judicial branch in general and in the Supreme Court in particular. The Court faces a flood of petitions annually, yet it can only hear a fraction of these cases. Thus, like any governmental body, the Court must build its decision agenda. The justices must winnow out frivolous demands, requests that cannot be met for a variety of reasons, and issues whose time has not yet arrived. Cases surviving this process constitute the Court’s decision agenda for the term (Perry 1991; Pacelle 1991). The dramatic growth of interest group participation in the judiciary does raise some normative concerns. There is perhaps something a little unsettling about groups attempting to exert themselves in the judicial realm. The judicial branch is supposed to be neutral and above politics, to a degree (Pacelle 2002). Openly political use of the courts threatens to undermine respect for the rule of law. The increasingly political use of the courts brands the legal system as simply another battleground for public policy (Tamanaha 2006, 169). The blindfolded statue of Justice is at odds with notions of interest group politics. And in a practical sense, if the groups that are successful in the courts are the strongest organized components of society, the disadvantaged, less organized, and less powerful elements of society face even greater burdens in a branch of government that is supposed to be blind to such disparities. As Paul Collins (2008, 3) opines, the idea that groups can exploit the legal arena to press their advantages undermines the notion of justices as legal experts who are applying the law. On the other hand, as Collins (2008, 3) notes, group access to the Court fosters the idea of democratic input and participation. If one recognizes the need to strike the appropriate balance between providing access and advancing pluralist ideals and normative concerns about judicial instrumentalism, then there are benefits in seeing wider representation (Collins 2008, 169–171) In an important sense, the justices of the Supreme Court are policy entrepreneurs, who seek to fulfill their policy goals through their selection of cases and their decisions on the merits of the issues (Segal and Spaeth 2002; Epstein and Knight 1998). Justices carry ideological baggage to the bench and pursue specific constitutional and policy goals through their decisions. Interest groups are policy entrepreneurs also. They come to the Court (or to the legislature or executive branch) with their own notions of

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a good society and with policy goals that will help advance their visions. The ideological predilections of the sitting Court provide a context for the litigants and groups that approach the Court with their problems and concerns. As the Court’s ideology shifts and support for individual liberties and civil rights grows or declines, different litigants will be encouraged to use the courts. Other groups may retreat or modify their strategies in light of the Court’s changes. Both sets of policy entrepreneurs will act strategically to further their goals. Sometimes, their respective sets of goals will be aligned (Pacelle 2009; Baird 2007). The construction of judicial policy and legal doctrine is a dynamic process and a joint effort by organized litigants and the justices. One decision, no matter how consequential, seldom settles an area of law. Much of the Court’s work has been compared to the building of a mosaic, and it is actually more complicated than that (Pacelle 2009). Court decisions create new questions and new interstices to be filled. As a positive process, the Court may seek to build or expand policy. As a result, the justices screen petitions for cases that will help them build doctrine and fill gaps. The tone of the Court’s decisions may encourage litigants to bring additional cases in that policy area or in related areas. Some of the Court’s influence is negative. Confusion in doctrine creates uncertainty for lower courts and litigants and generates subsequent rounds of cases aimed at resolving the uncertainties (Pacelle 1991; Baird 2007). In the process of deciding whether to grant or deny certiorari and make their decisions on the merits, justices need reliable information (Johnson, Wahlbeck, and Spriggs 2006; Johnson 2004). Each of the major models of judicial decision making assumes that justices need information. The legal model assumes that decisions are a function of precedent, relevant legal rules, and the facts of the particular cases (Baum 1997; Bailey and Maltzman 2008; 2011). Similarly, the attitudinal model presumes that the justices base their decisions on their sincere policy preferences (Segal and Spaeth 2002). Justices measure the distance between the case stimuli and those preferences. The case stimuli are a combination of the facts and the policy implications of the decision. Finally, the strategic model posits that the justices will select outcomes that maximize their policy preferences given the existing constraints, which can include institutional rules and the preferences of external political actors (Murphy 1964; Bergara, Richman, and Spiller 2003; Hammond, Bonneau, and Sheehan 2005). While the types of information desired by the justices may vary, the justices’ decisions are at least partially a function of information. Justices rarely have perfect information regarding factors like case facts, preferences of external political actors, and policy implications. This underlines the critical role of organized interests and litigants. They have an incentive to provide information that puts their position in the best possible light in order to win the existing case. But if they are “Repeat Players,” or organized litigants, in the legal system, they need to balance their desire

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to prevail in this case with the long-term goal of earning and protecting a strong reputation with the Court (Perry 1991; Cooper 1990). The justices have several institutional mechanisms in place to assist them in gathering information. The parties to the case submit written briefs to the Court containing factual, legal, and often policy information (Johnson 2004). In most cases, other parties provide amicus curiae briefs that provide various forms of information to the justices that may not be available in the briefs of parties or oral arguments (Collins 2008). An amicus brief can add expertise, expand the issue, change the issue at hand, and provide an informal tally of public opinion. For instance, the amicus can serve as the appellate version of an expert witness. In a case like Roe v. Wade (1973), numerous medical authorities could provide information about trimesters or the viability of a fetus (Hull and Hoffer 2010). The landmark affirmative action case, Regents of the University of California v. Bakke (1978) involved Allen Bakke and the policies of the University of California–Davis, but the implications affected virtually every other university, so more than 40 universities or groups affiliated with them filed amicus briefs to expand the issues beyond the two parties (Ball 2000). Mapp v. Ohio (1961) was originally litigated as a test of Ohio obscenity laws and would be a First Amendment decision but for the amicus brief of the ACLU that urged the justices to reconceptualize the case as an issue of search and seizure (Long 2006). Finally, in Gideon v. Wainwright (1963), the attorney for the state of Florida (the state that was party to case) notified the other 49 states’ attorneys general that this case would affect each of them and asked them to contribute an amicus brief. Twenty-eight states responded, but when 26 filed briefs supporting Gideon, rather than the state, this specialized public opinion was rather clear (Lewis 1964). More recently, in the United States v. Windsor (2013) case involving the constitutionality of the Defense of Marriage Act (DOMA), as we saw in the last chapter, prominent Republicans filed an amicus brief urging the Court to strike down the act. Further, in two separate briefs, 70 cities and large corporations and 278 businesses also urged the Court to find DOMA unconstitutional. Not a single business or corporation filed an amicus in support. These briefs offered expertise (on the costs to business), expanded the issue (beyond the right to marriage), and offered a rather striking view of public opinion. The amicus briefs can also reveal the position of governmental actors like the other branches (Epstein and Knight 1999). Finally, the justices hear oral arguments presented by attorneys representing the parties, and, increasingly by an attorney representing one or more amici curiae. Johnson (2004) has examined the types of information the justices are seeking during oral arguments, and the extent to which the Court is influenced by that information. He argues that justices use the oral arguments to gather information about the policy implications of their decisions, as well as

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the preferences of external actors that could influence the implementation and impact of the Court’s decisions. So why and how does this process actually work? Justices have a hierarchy of goals. At the apex of that hierarchy are likely their sincere policy preferences, the desire for stability in the law and doctrine, and protecting the legitimacy of their institution (Baum 1997). Externally, organized litigants have a desire to see their policy goals realized and ultimately protected by a web of favorable precedents. They strategically push the strongest cases forward hoping to get them accepted by the Supreme Court and to get a favorable decision on the merits (Pacelle 2009). This is an expensive and uncertain task. Individual cases have to be built at the lowest levels of the judicial system and follow the designated path to the Supreme Court. Only a handful of petitions for review are accepted by the Supreme Court each year. And doctrine is not built with one or two cases. The process of building a stable doctrinal foundation may take years for organized groups (Baird 2007). For their part, justices have a tremendous amount of work to do, a limited staff of clerks to help them, and a mountain of paperwork to process. They are likely cognitive misers who cannot process all the relevant information they need and who rely on cues and heuristics to help them make reasonably informed decisions. Likely the most taxing element of the work is the case screening. Roughly 10,000 briefs seeking writs of certiorari (or writs of appeals) arrive annually. Most of these briefs run to at least 25 pages. By no means are all of these petitions important, but a significant proportion, likely more than half, raise some meaningful questions that would merit judicial attention. One justice compared the process of reviewing the petitions to “reading Gone with the Wind every morning before breakfast” (Perry 1991). Justices get a great deal of their information from litigant briefs (Baird 2007; Perry 1991; Pacelle 1991), amicus curiae briefs (Collins 2008), and oral arguments (Johnson 2004; Johnson, Wahlbeck, and Spriggs 2006). So, it is imperative for the groups seeking the benefits the Court can dispense to offer work products of the highest quality. Under Rule 10 of the Supreme Court, being granted review is “not a matter of right, but of judicial discretion” (Perry 1991). Among the “suggested” criteria for such a grant, besides the sheer importance of an issue that should be decided by the Supreme Court, are errors or lower court decisions that conflict with existing Supreme Court precedents (vertical precedents, discussed in Chapter 7). One of the most important norms for the Supreme Court is to police the lower courts and resolve conflicts between circuits or between state courts of last resort. Organized litigants, who will be referred to as “Repeat Players,” will call attention to such factors in their briefs. By virtue of being Repeat Players, these litigants have developed a reputation with the Court. Those who are trusted will be far more successful in getting their cases accepted and winning on the merits than those who

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fabricate the importance of their issues or exaggerate the extent of circuit conflict (Perry 1991). Previous research has postulated that justices look for cues, signals, or indices from the briefs that crowd their desks (Tanenhaus, Schick, Muraskin, and Rosen 1963; Perry 1991; Ulmer 1984; Pacelle 1991). The existence of one or more of these cues or signals does not guarantee the granting of review, but it probably ensures that the petition will get a closer look. What cues would move a justice to give a petition closer consideration? A number of studies have determined that the type of issue is an important cue for the justices. They may be shopping for a particular area (or trying to avoid one). For the last half-century, there has been a notion that civil rights and individual liberties cases get closer scrutiny than economic cases. The identity of the petitioner is a strong indicator. Litigants develop reputations over time. The name of an attorney who used to be in the Office of the Solicitor General (or the SG himself) or who served as a clerk to a justice likely carries a great deal of weight (Black and Owens 2012). One of the advantages of Repeat Players is the “informal relationships with institutional incumbents,” which is a long way of saying that the litigants know the justices (Galanter 1974). Maybe they travel in the same social circles, went to law school together, or the former clerked for the latter. Another set of cues and signals regards the identification of conflicts between lower courts (Perry 1991). Perhaps two state supreme courts or two circuit courts of appeals have decided similar cases in different ways. A sharp brief will call this to the attention of the justices. Of course, there is an incentive to find lower court conflicts or to exaggerate them to highlight the need to accept the case. A respondent who wants the Court to deny the petition so the lower court judgment will stand might pull the curtain back on an exaggerated claim. Highlighting a discrepancy between the lower court decision and an existing precedent will also enhance the likelihood of a closer examination of the cert petition. As we will see in Chapter 7, cases get shaped in the lower courts, and here is a place for litigants to frame the issues to manufacture some of the other cues and signals. The Court is said to pay attention to well-respected lower court judges, so a little forum shopping might be recommended for the strategic litigant. Most cases coming from the Courts of Appeals are decided unanimously. The existence of a dissenting opinion is another signal to the Supreme Court that a case merits some closer attention (Perry 1991). This is a two-way street, so the Court has to signal back to the litigants to help generate subsequent rounds of litigation. The Court has cues and signals that it can use in its perpetual dialogues with organized litigants. The most obvious source of such signals can come in the opinion of the Court, as well as concurring and dissenting opinions (Baird 2007). The Court will occasionally signal where it is going. The majority opinion

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may say that the Court is not passing judgment on other factual situations, but may, in effect, invite such questions. The Court may sketch out the current state of doctrine in that area and suggest where things might be heading. Similarly dissenting opinions may hint that the Court is ready to beat a retreat. The general tone of a series of related decisions can also carry messages for litigants. A consistent line of decisions may tell litigants to push the envelope. Conversely, an inconsistent series of decisions in an issue area may suggest that the Court is looking for stability or about to strike the colors and pull back (Pacelle 1991; Baird 2004; 2007). To back up one stage in the process, the tenor of the questions at oral arguments may also sow the seeds of future litigation (Johnson 2004). The justices’ questions may provide some hints as to the development of doctrine and the next cases. Back one stage further, the Court provides clues and hints through its case selection priorities. Groups can observe the general patterns as well as note how their particular petitions are treated. Typically, early in the opinion of the Court the author of the decision will reveal why the Court has accepted the case, and that may provide some information for those adept at reading tea leaves. It is important to note that though the Court is not a self-starter, it is not completely passive or at the mercies of external forces. The justices have three proactive weapons they can use to influence the future trajectory of litigation: landmark decisions, the rules of access, and issue fluidity. Using one or more of these devices will signal to litigants that the Court is amenable to more cases in that particular area, or that its agenda is closed to similar issues (Pacelle 1991; 2002). A landmark decision is a mechanism that allows the Court to circumvent (to a degree) some of the problems inherent in the reactive nature of the judicial process. Landmarks are seminal decisions that open, close, or fundamentally alter the nature of law and policy in a given area. Decisions like Brown v. Board of Education, Roe v. Wade, and New York Times v. Sullivan are well-known examples of major landmarks that opened the agenda. Landmark decisions are important tools for justices to utilize in prospectively building future agendas and structuring the nature of agenda change. Such decisions often further the goals of the Court. A landmark decision is a means by which justices create conditions inviting litigants to bring cases that will fill in the nascent doctrine or signaling litigants that such cases are no longer welcome (Pacelle 1991; 2009). The doctrinal changes created by the landmark decision virtually assure the justices the opportunity to address similar types of cases in order to continue the development of doctrine in these recently changed areas. The Court will occasionally use a landmark decision to signal litigants that it is no longer interested in this particular issue (Pacelle 1991; Baird 2007). The Court has designated a number of rules of access to regulate its case selection. The Court is not supposed to take cases where one or

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more of the parties lack standing. The justices are not supposed to take collusive cases where both parties have conspired to bring a test case. The Court is also supposed to avoid cases that raise “political questions” that are better resolved by the elected branches of government. But these rules of access are flexible, and an activist Court can ignore them. If the justices refuse to enforce these rules, it is a clear signal that they want to deal with the issue and are throwing open the courthouse doors. The Court could have ducked Roe v. Wade by determining that Jane Roe’s case was moot, she no longer had standing because the case had been in the system for more than nine months, and she had either had the baby or terminated the pregnancy (Pacelle 2002). Justices work in concert with the litigants who bring subsequent rounds of cases. Members of the Court who want to pursue their sincere preferences may not have the proper cases necessary to make policy at the appropriate time. In such instances, purposive justices can manipulate cases before them to pursue their designs. This process, known as “issue fluidity,” mitigates the problems created by the fact that the Court is not a proactive institution. Issue fluidity occurs when justices expand the issue (issue expansion) or contract the issue (issue suppression) raised in a litigant’s brief (Ulmer 1982). When the Court narrows an issue, it signals that area is no longer a vital institutional concern. The Court must tread a fine line in deciding such cases. The goal is not to create new policy initiatives but to settle existing confusion. As a result, the Court must decide the existing case narrowly to avoid reinstituting the issue as a viable concern (Pacelle 1991). Issue suppression refers to the process by which the Court culls one narrow issue from the case at hand and avoids or simply dismisses all of the other questions raised in the petition (Ulmer 1982). The Court uses this device to separate the question that caused a conflict between lower courts from the remaining questions in the petition, which will be ignored. Issue expansion is often a function of the policy designs of the majority of the Court. Justices interested in opening a new area can take an existing case and convert it to a new issue through a landmark precedent (Pacelle 1991; 2009). The usual pattern of issue expansion is that a case arrives in the normal course of litigation. The Court then converts the issue to a landmark or expands the impact of the case beyond the narrow facts of the specific dispute (McGuire and Palmer 1995). Mapp v. Ohio, for instance, is an excellent example of issue expansion. The case reached the Supreme Court as a narrow case questioning the legality of Ohio’s obscenity law. On the basis of a suggestion in an amicus curiae brief, the Court turned it into a major policy pronouncement on search and seizure and the incorporation of a constitutional amendment to the states. Gideon v. Wainwright is an example of an issue that was expanded within the same framework. The case raised the issue of the right to counsel for indigents. The Court instructed the attorneys in the case to expand their

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arguments to address the issue of incorporation, the process by which the Court applies provisions of the Bill of Rights to the states (Ulmer 1982; Cortner 1981). The expansion of an issue is consistent with the process of opening or expanding the agenda space granted that area. A problem is perceived, a solution is found, and justices seek the proper vehicle for the coupling. If an ideal petition is not available, interested justices can adapt another case. Because issue expansion is a proactive process by which the Court directly intervenes in litigation, it is a reasonably clear indication that the issue affected is headed for increased attention and space on its agenda (Pacelle 1991; 2009). Issue fluidity is a manifestation of the Court’s broader policy making (Ulmer 1982). Issue expansion is a function of the Court’s dominant ideological values. Issue suppression also reflects the Court’s ideology while incorporating elements of the Court’s institutional role. In this way, the process of issue fluidity combines the goals of the Court with a necessary attention to its institutional rules (Pacelle 1991; Hendershot, Hurwitz, Lanier, and Pacelle 2013). Although we think of the Supreme Court as isolated from and above politics to some degree, justices since the beginning of the republic stepped out from behind the curtain to engage various communities including the mass public. This strategy of “going public” is seldom considered when studying the Court. Justices may have a variety of motives for using the media or making public statements. Justices may have personal goals like defining their legacies or seeking some higher office. They may have broader policy or institutional goals. They may be interested in protecting the institutional legitimacy of the Court, and thus speaking to the public or the other branches of government may be a defensive posture. They may try to initiate a broader policy debate or seek to persuade their colleagues through more public channels (Davis 2011, 8–18; Baum 2006). These policy-related off-the-bench remarks may well be signals to different audiences about issues or trends. Justice Scalia has been openly contemptuous of his colleagues, particularly Justice O’Connor, regarding the issue of reproductive rights (Tushnet 2005, 63–64). In summer 2012, Justice Ruth Bader Ginsburg opined that the Court was likely to grant cert and decide a case involving the Defense of Marriage Act. Current and former justices have made numerous remarks about the Court’s decisions regarding corporate spending in elections (Coyle 2013, 273–274). Justice Powell famously told audiences that his vote in Bowers v. Hardwick was wrong (Jeffries 1994). While he was on the bench, Justice Blackmun announced that he could no longer support the death penalty (Yarbrough 2008; Greenhouse 2005). Regardless of the particular motivation, such messages resonate with those trying to read the entrails of the Court’s decisions and the justices’ public statements (Davis 2011).

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Why Do You Think They Call Them “The Haves”? In the course of politics as normal in the elected branches of government, well-organized groups fare better than the mass public or amorphous public interest groups. Recent legislation proposed in the wake of the school shootings in Newtown, Connecticut, provides a perfect example. Despite overwhelming public support for tougher gun control measures, like background checks, the well-organized gun lobby has been able to thwart meaningful restrictions. In the judicial branch, the disparity of resources provides opportunities for some groups and barriers and constraints for others. In a seminal article, Marc Galanter (1974) characterized litigants who use the courts as Repeat Players (RP) and One-Shotters (OS). Rather than two ideal types, Galanter (1974) conceptualized these as the ends of a continuum. One-Shotters, as the name implies, would have very infrequent recourse to use the courts. Repeat Players, on the other hand, would have frequent dealings with the judicial system. One-Shotters are simply interested in resolving the dispute and getting back to their normal lives. They have an enormous investment in the current case, but no longterm legal policy goals. They are not interested in long-term benefits or the state of the law. Repeat Players, on the other hand, typically have a very small stake in the current case. Their goals are more long-term in duration. The RP predictably has a full range of advantages over the OS. By definition, RPs have experience in the judicial system. They tend to have greater resources and better access to legal specialization. As a consequence of these advantages and their goals, they have the ability to play the odds and litigate strategically. Because they are “repeat” players, they have the ability to structure their litigation efforts and get their gains to penetrate through the judicial system. They are interested in shaping the law to their liking (Galanter 1974). Their tactics and strategies may convince them to settle potentially difficult cases to avoid a bad decision that might become a harmful precedent for similar future cases. On the other hand, when they have a strong case, they will try to convert it into a precedent they can use in the future. The title of the Galanter article that I referenced earlier is “Why the ‘Haves’ Come Out Ahead,” and it speaks to how strategic litigation can lead to favorable decisions that create precedent that reflects the Repeat Players’ long-term goals. As noted, these Repeat Players pursue policy goals in the courts by litigating strong cases to achieve favorable precedents that will penetrate the judicial system and settling weak cases to avoid harmful precedents (Caldeira and Wright 1988). They not only want to gain favorable precedents, they want to nest them deeply into the legal system so they are not easily excised later. The ideological balance of the Court is going to change periodically, but if precedents have been carefully insulated, they

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cannot easily be overturned. And if they are nested, any change is going to have dramatic ripple effects for other areas. In addition to their impressive legal and financial resources, Repeat Players have informal relations with institutional incumbents and the ability to predict which cases have the best chance of creating the precedents they desire (Galanter 1974). This requires the RP to closely monitor Court decisions and be ready with the next petition for certiorari. They are often able to sequence their cases. Remember that the litigation and agenda processes are joint ventures by the justices and savvy organized litigants. For all the obvious advantages, the RP also has to have a broader focus. Even those groups with the most resources cannot hope to monitor or litigate every issue that concerns them. At the same time, such groups will be affected by a variety of decisions issued by the Supreme Court. So, the RP will need to have sensitive antenna to other cases brought by other RPs and occasionally by some OS. Repeat Players need to keep a viable “presence” in a number of areas of law. They will want to make certain that some other litigants are not pushing a case that could have harmful consequences for them. This was a motivation for RPs like the New York Times and the ACLU to file or join amicus briefs in the Hustler Magazine v. Falwell case. The task for the RP appears to be getting more difficult on a number of levels (more on that shortly) (Wasby 1995; Kobylka 1987), but these systemic advantages mean the precedents and thus the law will often favor the Repeat Players (Galanter 1974). Corporations, states, and, most notably, the solicitor general are good examples of the Repeat Players who have success in the legal system and reap the rewards of their advantages in terms of favorable precedent. And if they manage to lose and have to deal with a precedent that could be harmful to their goals, they have the resources to try to undermine it with future cases or to move to another forum, like Congress or a state legislature, to have it reversed or weakened. Groups lacking sufficient resources can enter pending cases through an amicus curiae (“friend of the court”) brief, which serves to inform the Court about the impact of a decision on a group that is not directly involved in the case. The original intent of these briefs matched their name. They were designed as nonpartisan and were meant to help the Court (Krislov 1963). But over time they have been used to advocate for one of the litigants in the case. Amicus briefs can frame the issues in a case in a different context and help specify alternatives to consider. As noted, such briefs serve the same functions as organized group testimony before congressional committees: marshaling specialized opinion, providing both general and technical information, and providing an informal tally of public opinion (Pacelle 1991). While the amicus brief can help the RP extend its reach, on balance, it has probably aided the OS more. The average “One-Shotter” will not get anywhere near the U.S. Supreme Court except for a tourist’s visit. But

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think of some of the landmark Supreme Court decisions and know that Linda Brown, Jane Roe (Norma McCorvey), Ernesto Miranda, Dollree Mapp, Clarence Earl Gideon, Allen Bakke, Michael Hardwick, and John Lawrence, to name a select few, were all the prototypical One-Shotters. Left to their own devices, they would have been at an enormous disadvantage in court. But various Repeat Players, such as the American Civil Liberties Union and the NAACP, came to their aid and, in effect, leveled the playing field (Songer, Kuersten, and Kaheny 2000). The distinctions between Repeat Players and One-Shotters are a bit exaggerated at the Supreme Court level because of the proliferation of amicus curiae briefs. Thus, by the time the case gets to the Supreme Court, it is very rare to find a real One-Shotter on a solo mission without the help of a well-heeled Repeat Player. But there are some factors that still distinguish the elite Repeat Players from the lesser lights. Analysts have identified a number of factors that permit them to rank order the effectiveness of Repeat Players (Sheehan, Mishler, and Songer 1992). The dramatic proliferation of both Repeat Player organized litigants and amicus curiae briefs would seem to mitigate some of the advantages that the RP had over the OS. Remember that Galanter saw the RP as a continuum, so are there meaningful distinctions between the many RPs that seek the Court’s attention? Analysts have identified a number of factors that may be connected to success. Studies have found that experience and expertise are important factors. Studies show that the Court is more likely to side with a party represented by more experienced attorneys (McGuire 1995). The justices are more likely to use language from party briefs prepared by expert attorneys—primarily those with more prior litigation experience (Corley 2008). Johnson, Wahlbeck, and Spriggs (2006) discovered that several aspects of the expertise of the attorneys, including prior Supreme Court clerkships, law school alma mater prestige, and prior litigation experience, helped explain Justice Blackmun’s ratings of the quality of oral arguments. And in turn, the ratings partially explain his decision making. There is also the general supposition that more is better: more resources trump fewer resources (Sheehan, Mishler, and Songer 1992), and more amici briefs in support would yield advantages (Collins 2008). But for all the potential factors, one strikes me as more important than the rest: the ideology of the Court. Sheehan, Mishler, and Songer (1992) argue that the changing ideological complexion of the Court has a greater impact on the success of litigants than differences among litigants in resources and experience. When the Court’s median is over on the left, liberal groups will be advantaged and therefore would have the incentive to be more active in their litigation efforts. Conservative groups would be advised to develop a different tack. They should play defensively, trying to limit their losses until the composition of the Court moves in their direction. The task for organized litigants has gotten significantly

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more difficult in the last two decades (this will be addressed later in the chapter). That answers the question about relative effectiveness, but the issue remains whether amicus curiae briefs are effective devices. Studies have shown mixed results in determining whether amicus briefs influence justices (cf. Segal, Spaeth, and Benesh 2005, 39; Epstein and Knight 1999; Collins 2008). On balance, they seem to be cost-effective means of vetting one’s views and providing powerful interest groups with a useful way to monitor the development of doctrine. Litigants obviously think amicus briefs matter, hence they invest finite resources in providing them. A number of justices have also remarked that they are useful vehicles for gaining a broader perspective on the implications of the case at hand. Collins (2008, 173) suggests that amicus briefs increase ambiguity, forcing or at least encouraging justices to go beyond their mere sincere policy preferences in deciding cases. They provide more extensive information and raise new issues and questions.

The Special Case of the Solicitor General: The Ultimate Repeat Player The solicitor general is considered the ultimate Repeat Player. If one looks at the litany of advantages that Repeat Players have over One-Shotters, they are magnified for the SG. The SG has a long close relationship with the Court that has led to the characterization of the SG as the “Tenth Justice.” The OSG has more resources and experience than its opponents. Though it is a small office, it can draw on expertise from thousands of attorneys in the executive branch. This provides the Office with the opportunity and ability to litigate for rules. The fact that the solicitor general is the only litigant who has an office in the Supreme Court building is merely a symbol of the ubiquitous advantages that he/she possesses (Pacelle 2003). The Office of the Solicitor General is a small, elite law firm that has been populated by some of the greatest legal minds and that attracts the best staff attorneys (Salokar 1992; McGuire 1995; 1998). Studies demonstrate that the reputation of the solicitor general plays an important role in the Court’s decision making (Puro 1981; Jenkins 1983; Black and Owens 2012). The solicitor general has hundreds of cases it could appeal to the Supreme Court, but the Office carefully screens petitions to bring only the best cases (Epp 1998, 60–63). The Court, in turn, grants a higher percentage of the solicitor general’s petitions, and the government is more successful on the merits than any other litigant (winning over two-thirds of its cases). More significantly, the Court often adopts, sometimes verbatim, the arguments the SG propounds in its briefs and oral arguments (Johnson 2004; Corley 2008). Given the demonstrated excellence of its attorneys, knowledge of the proclivities of the justices, and the number

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of potential cases, the OSG has an unmatched ability and opportunity to litigate strategically (Pacelle 2003). The consequence is that the solicitor general will have a great influence over the framing of issues, the sequencing of cases, the Court’s agenda, and ultimately over the construction of precedents and policy (Black and Owens 2012). In theory, this gives the president the potential to exert significant influence over the development of legal policy. But there lies the rub: the success of the SG is partially a function of the fact that the office is free to ignore the president. The OSG shares a symbiotic relationship with the Supreme Court. The lifetime tenure of the justices and the career track of many attorneys in the office provide each with some insulation from politics. The SG screens cases carefully, keeping many off the Court’s crowded docket. Wade McCree, Jimmy Carter’s solicitor general, argued that, “It is the duty of the Solicitor General to serve as a first-line gatekeeper for the Supreme Court and to say ‘no’ to many government officials who present plausible claims of legal errors in the lower courts” (Pacelle 2003, 44). The SG also “focuses and directs the development of law,” helping the justices impose stability on doctrine. The SG appears before the Court more than any other litigant, and thus is familiar with the predilections of individual justices and the Court. The Office and the Court have developed “a tradition of mutual trust and respect” (Wilkins 1988, 1179–1180). As former Solicitor General Kenneth Starr noted, “There is a unique relationship . . . that is valued and treasured and is a factor that counsels care, caution, and effective lawyering” (Pacelle 2003, 44). Thus, as James Cooper (1990, 70) argues, The SG “is likely to have an incentive structure which is less sensitive to politics and more sensitive to the Court.” This unique relationship provides some special advantages for the OSG. Starr noted: “There is an institutional sense that the relationship between the Office and the Court is an important and enduring one. You are afforded certain courtesies by the Court” (Pacelle 2003, 44). The SG is one of the few litigants allowed to submit an amicus brief without permission of the parties in the case. The Office is also permitted to make use of an extraordinary procedure known as “lodging.” This permits the Office to add supporting materials that are not in the trial record, but will shed light on the government’s position. Each of these procedures, along with the sheer number of cases, gives the SG an advantage over other litigants. As David Kendall argues: “In the Supreme Court, the SG’s office is the home team” (Pacelle 2003, 44). While the SG gets benefits that are denied other litigants, it has responsibilities that others do not. As Caplan (1987, 20–25) writes, “The Solicitor General plays by different rules because he represents the United States. . . . the SG’s office owes a special duty to the Court, and the Justices hold the SG’s lawyers to a higher standard of craft.” As former Solicitor General Seth Waxman remarked, “There is a special relationship

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between the solicitor general and the Supreme Court; what is special is the additional responsibility, rather than the perks” (Pacelle 2003, 45). This influence is particularly evident when the justices turn to the SG for assistance on legal issues and invite the Office to state the government’s position. The notion of an “invitation” is a misnomer. In reality, as Mark Levy, a former attorney in the OSG, said, it is tantamount to an order from the queen (Pacelle 2003, 45). This “Call for the Views of the Solicitor General” (CVSG) is considered the highest compliment that the Court can bestow on the Office (Salokar 1992, 5). While the solicitor general’s primary responsibilities are to screen petitions carefully and carry forward briefs of the highest quality, the Office also serves an informational function. Oral arguments and written briefs provide good vehicles for justices to get information. While many briefs have problems that force justices and their clerks to do additional research, the solicitor general’s briefs and arguments can save the justices time by presenting a thorough and balanced discussion of the facts and legal issues. Litigants may fabricate or exaggerate circuit conflicts or misrepresent the impact of a precedent (Perry 1991). According to Robert Bork, “the Solicitor General . . . bears a special relationship to the Court. He owes it complete intellectual candor even when that impairs his effectiveness as an advocate” (Schnapper 1988, 1197–1203). Clerks and justices pay close attention to the briefs. Indeed, as I noted in Chapter 2, the solicitor general’s positions are often compared to “the answer sheet” (Perry 1991, 132–133). The solicitor general must anticipate the type of information and analysis the Court will find useful in deciding cases and continuing doctrinal construction. In trying to determine the concerns of the justices, the SG may need to put aside the administration’s goals. If the president wants to use the SG as a policy activist, he must be certain that the Court will accept such behavior. Otherwise, the president stands to lose a significant portion of the influence he has with the Court, and the SG would lose effectiveness as a legal representative of the administration (NormanMajor 1994, 1087). As Lawrence Wallace said, the Office “engages in a meaningful dialogue with the Court about the public interest in light of the programmatic interest of the government and the jurisprudence of the Court” (Pacelle 2003, 46). Every solicitor general must pay attention to the long-term relationship with the Supreme Court, but the individual SG also must pay attention to the predilections and jurisprudence of the sitting Court. The Office must provide quality briefs and careful screening, regardless of the identity of the president or the nine justices. The SG typically inherits a strong relationship from his/her predecessor and must bequeath that to his/her successor. The scope of those briefs, the decisions regarding which losses to appeal, and which cases to join as amicus depend to some degree on the composition of the Court. The solicitor general’s agenda must be

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practical. The OSG cannot push cases or arguments that are out of line with the ideological position of the Court (Pacelle 2003). There are a number of pragmatic considerations that compel the solicitor general to adhere to a stringent level of candor in dealing with the Court. As the ultimate Repeat Player, the SG participates in about half of the cases on the Court’s plenary docket. As a result, the quality of the solicitor general’s work has an enormous impact on the Court. If the Office is not reliable, then the Court cannot utilize its work as a cue. In addition, all of the Office’s appearances are on behalf of one client, so the presentation in one case can affect the government in other cases. The frequency with which the SG handles cases means the office develops a reputation that will affect the credibility of its analysis and arguments (Schnapper 1988, 1203–1205). Cooper (1990, 71) claims: “As a consequence of this repeated reevaluation, the Solicitor General can serve as a sort of legal brand name, offering some assurance of quality.” Rex Lee (1986, 597) summed up the most visible manifestation of the relationship between the Office and the Court: there is a widely held, and I believe substantially accurate, impression that the Solicitor General’s office provides the Court from one administration to another—and largely without regard to either the political party or the personality of the particular Solicitor General— with advocacy which is more objective, more dispassionate, more competent, and more respectful of the Court as an institution than it gets from any other lawyer or group of lawyers. We interrupt our discussion to look at this chapter’s empirical model. This model examines the work of the ultimate Repeat Player, the solicitor general. The Office of the Solicitor General participates in three ways: it files briefs when the government is a party, enters cases as amicus curiae when the government is not a party but interested in the case, and responds to Calls for the Views of the Solicitor General (CVSG) (Salokar 1992; Ubertaccio 2005). In the CVSG, the Court formally invites the OSG to file an amicus curiae brief and weigh in on the issue. This is not the typical amicus brief, though. The SG is being asked to follow the original meaning of the amicus brief to be a “friend of the court” and provide an unbiased exposition of the law. The Court is seeking some advice about the case: should it be accepted, and if so, how should it be decided? In this respect, the SG plays the role of the “Fifth Clerk,” helping to find a context or doctrinal niche for the case (Pacelle 2003). Each of the three forms of participation poses different constraints and to a degree each has a different primary audience. As a party to the case, the SG is typically defending an agency in a case involving statutory interpretation, meaning that the Office needs to pay attention to Congress. If the case involved civil rights and individual liberties, the president will

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have a greater interest. Because the government is a party to the case, the OSG has to be concerned with the precedent from the decision and will litigate strategically (Pacelle 2003; Black and Owens 2012). Given the constraints, the agencies, the other branches, and precedent, the expectation is that the position of the OSG will have a major influence on the Court’s decision making. When the solicitor general files an amicus brief, the risk of a harmful precedent is lessened because the government is not a party to the case. The literature suggests that such voluntary amicus briefs provide the best opportunity for the president to exert influence over the OSG (Black and Owens 2012; Segal 1988; Norman-Major 1994). But that does not necessarily translate into meaning that these are strictly vehicles for the president (Lee 1986). There seems to be two sets of amici: ones that advance the president’s agenda, and briefs that permit the SG to address questions that affect the federal government. Indeed, the OSG enters cases involving state laws, regulations, and criminal procedure because similar issues occur at the federal level, and the SG would like the justices to appreciate the implications. The OSG will be less strategic in these cases. It can afford to tilt at some windmills for the president. But because of the dual nature of these cases, the expectations are a little difficult to decipher. Because the OSG does not have to worry about precedent in such cases, the influence on the decisions of the Court should be significant but less important. Finally, the Court can issue a Call for the Views of the Solicitor General (CVSG). Such cases appear to resemble the original intent of the amicus— a true friend of the court. The Court is often seeking guidance in such cases. The case may be the initial one in an area of law, or there may be no existing precedent and the Court would like help in finding a context for the new case. The Court is asking for some nonpartisan expertise (Pacelle 2003). If that is the case, then the expectation is that the Court will pay close attention to the recommendations for the OSG. In this chapter, I am going to examine each of these forms of participation separately. In this analysis I use cases in which the OSG filed a brief and argued the case (N = 2301). I start with the cases in which the government is a party. The government can be the petitioner (meaning that it lost the case in the lower court and appealed it to the Supreme Court) or the respondent (which means the government won below and its opponent is appealing). I am going to concentrate on the cases that the OSG filed rather than the cases the Office responded to. In such cases, the solicitor general can be strategic and decide which cases to bring. Tables 6.1.1 and 6.1.2 are found in Appendix 6 at the end of this chapter. There are three models, one for each form of participation: the government as the moving party, voluntary amicus briefs, and invited amicus briefs. There is an extended discussion of the results in the appendix. Here I will simply focus on the most important findings and relate

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them to the influence of the OSG on Supreme Court decision making. Those results paint a vivid and striking picture of the influence of the solicitor general. Regardless of the form of participation, the influence of the OSG virtually crowds out the effects of the president and Congress. Indeed, the elected branches have no discernible influence on the Court’s decision making in these cases. Perhaps a more telling indicator of the impact of the SG and the respect that the Office has earned is the lack of influence that the ideology of the Court has on its own decisions. Consider the implications of this finding: the Court will often put aside its sincere policy preferences to make a decision that is consistent with the position advocated by the solicitor general. I want to underline that finding at the risk of redundancy. The attitudinal variable is the most important determinant in decision making, but when the OSG is involved, the Court elevates other factors to primacy. And this occurs regardless of the form of the Office’s participation. The influences on Court decision making in the government as party cases and the voluntary amicus briefs are thought to be different, but the results suggest some major similarities. In part, this may reflect the fact that the Court has discretion over both sets of these cases (I deliberately used the government cases that the OSG brought). Regardless of whether the cases were economic or civil rights and liberties, constitutional or statutory, the OSG had a large influence and the other political variables were limited or nonexistent. In the voluntary amicus and government as party cases, the factors that influence the Court besides the OSG are precedent and issue evolution. The precedent variable underlines the work of the OSG. The solicitor general is not simply a presidential mouthpiece. The OSG is responsible for helping to stabilize the law, so it is not surprising that precedent has a positive influence on the Court’s decisions. In addition, the dramatic influence of the OSG is a testimony to its excellence as a litigant and its ability to litigate strategically. The Office takes cases it believes it will win. The goal of the office and of all Repeat Players is to win cases to get favorable precedents that can be used for a generation or more. And by that standard, the success of the OSG is clear. Finally, I want to examine the cases in which the Court openly seeks the assistance of the OSG by inviting an amicus brief. The model (Model 3 in Table 6.1.2 in Appendix 6) has dramatic results. Not a single variable has a statistically significant influence on the Court’s decision making in this subset of cases, except for the position of the solicitor general. In other words, in these cases in which the justices are asking for assistance, the Court is influenced only by the position of the solicitor general. The Court does not even attend to precedent. You can view the stark numbers for yourself at the end of the chapter, but they only tell part of the story. The success in getting the Office of the

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Solicitor General’s cases accepted and winning on the merits is unmatched (I was tempted to say unprecedented). But more than the simple numbers, the respect that the justices hold for the Office is evident. And perhaps the most compelling evidence for that influence is the fact that the justices frequently lift passages from the briefs and oral arguments that the OSG advances and use them in their opinions. The body of precedent in virtually every area of law bears the strong fingerprints of the OSG.

Jenga!!! The judicial process is not amenable to the coherent construction of policy without the assistance of groups that monitor policy, read the entrails of decisions, and sponsor or join subsequent litigation (L. Epstein 1985; Baird, 2007; Pacelle 1991; 2009; Wasby 1995; Collins 2008). But too many groups can complicate the process for litigants and the Court. Successful groups can sequence cases to structure both the evolution of policy and the nature of judicial debate. Church-state litigation is an excellent example of this process. Three groups, working together, were involved in virtually all major litigation in the 1951–1971 period, and they were able to frame issues for the Court and specify alternatives (Sorauf 1976). The work of the National Association for the Advancement of Colored People (NAACP), in building up to the Brown v. Board of Education precedent, provides the classic example of systematic, incremental litigation designed to pursue long-term goals (Wasby, D’Amato, and Metrailer 1977; Wasby 1995). The group attempted to distinguish its early cases involving graduate and professional school opportunities for minorities from Plessy v. Ferguson 163 U.S. 537 (1896), a hostile precedent that allowed separate but “equal” facilities for blacks and whites, but the NAACP never directly sought to overturn it until much later. Subsequent cases brought a wider array of groups, thus complicating the work of the NAACP. At the beginning of this chapter, I compared the construction of doctrine to creating a mosaic. In reality it is considerably more complicated. Maybe a better analogy is the old-school game of Jenga (not on Xbox). Jenga is a three-dimensional puzzle advertised as a game of physical and mental skill. The object is to remove blocks from the base and add them to the top without toppling the structure. As the game continues, the wooden tower gets taller and increasingly less stable. Building precedent can be a little like playing Jenga: the Court needs to construct coherent policy without toppling its doctrinal development. When a case comes to the Court, the justices would ordinarily want to square the decision in the current case with existing precedent. Ideally, the process of building doctrine could be in an incremental, rational way. That would be akin to crafting a mosaic or fitting the pieces to a jigsaw puzzle (Baird 2007). In a unidimensional world that would be a difficult

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enough process. But the law has gotten exponentially more complicated. The decision in one case is going to have implications for related cases and precedents specific to that area, but increasingly decisions spill over to other areas that are not always evident to the naked eye (Pacelle 2009). These complications come in three packages: defending one’s territory, the proliferation of groups and monitoring problems, and the interrelationship between issues. During the Warren Court, the welcome mat was prominently displayed for organized groups interested in expanding civil rights and individual liberties. Groups like the NAACP had almost unprecedented access to the Court and success in getting the justices to topple barriers to voting, education, employment, housing, and finally marriage (Wasby, D’Amato, and Metrailer 1977). Given the difficulties of the issues it litigated, the success of the ACLU, though lower than that of the NAACP, was nonetheless remarkable. The ACLU considered its primary contributions to the civil rights movement to be its work in protecting defendants’ rights (Walker 1990). Incorporating major portions of the Fourth, Fifth, and Sixth Amendments to the states, the Court and the ACLU could help protect African Americans in the South. A quick look at the freedom of expression cases the ACLU brought to the Supreme Court showed that many of them originated in the South as well (Tedford and Herbeck 2009). Success can be fleeting, though, and engenders some long-term costs. The Court will not always be ideologically aligned with the organized groups. With the election of Richard Nixon, the Republicans took a long-term lease on the White House. For 16 of the next 20 years, a Republican would be president and possess a valuable resource: the ability to nominate justices to the Supreme Court. Parenthetically, it might be noted that the lone Democrat to serve as president (and it was just one term), Jimmy Carter, did not have the opportunity to appoint a single justice. As the Court got more conservative, a new set of groups became ascendant (Teles 2008). They became more proactive in using the Court to press their advantage. The groups that had spearheaded the civil rights movement and the expansion of individual liberties now had to assume a defensive posture to protect their past gains (Wasby 1995). Having helped birth a number of precedents, the ACLU and NAACP had a broad terrain to defend as the Court became increasingly conservative. This would strain the resources of each group and force them to devise alternative strategies. Playing defense is much more difficult than litigating offensively. Evolutionary theory provides some insight as to the problems that interest groups using litigation strategies might face when the environment changes. Wholesale changes in the dominant ideology of the Court alter the environment for organized interests who use the judiciary. When the dominant ideology changes, the groups that have flourished under the previous regime simply lose the support of the Court’s majority.

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Membership changes remove long-time supporters and replace them with opponents. In addition, their past successes created a broad terrain that now needs to be defended from increasing attacks by the new Court majority. Broadly-based groups typically litigate across a variety of areas and thus need to protect their past gains across numerous issue areas (Pacelle 2009). As Steven Jay Gould (1985, 240) notes: “During normal times, speciesrich clades tend to increase their numbers of species continually—to win increasing numerical [doctrinal, in this case] advantage over species-poor clades.” Thus, in periods where the Court is sympathetic (a favorable environment), groups are encouraged to push the frontiers of litigation across boundaries. In a biological and a litigation sense, the favorable environment encourages species or groups to leave “many offspring.” Yet, to pursue the analogy, in times of cataclysmic change, the species-rich clades are too broadly and thinly spread out and suffer disproportionately. With environmental pressures and increased litigation from opponents, the groups that had held an advantage prior to the dramatic change must retreat and protect the core of their concerns. Evidence of such litigation strategies does exist (Kobylka 1987; Wasby 1995). There has been a vast proliferation of groups using the judiciary on a regular basis. This has been both a boon and a bane to existing groups. Having other cases means that groups can create a division of labor between like-minded litigants. However, the proliferation of groups does not mean that the quality is consistent across the board. New and less reliable groups could well launch a potentially destructive case (Kobylka 1987; 1991). The established group might need to intervene to try to contain the damage, as in the Hustler case (Smolla 1990). Consider a landmark Supreme Court decision like Miller v. California. When it was first announced, it certainly seemed to be a much more rigid test than the previous Roth/Memoirs4 standard which made prosecuting allegedly obscene material almost impossible. Emboldened, communities sought to crack down on smut. The ACLU could not possibly fight all these battles simultaneously, while at the same time trying to protect defendants’ rights, violations of free speech and freedom of religion, and protect privacy. The fact that other groups arose who had an economic and/or political stake in various cases helped the ACLU manage its resources. The ACLU could take an inventory. If the ACLU trusted another group in a particular case, it could conserve its resources by letting other groups lead the charge. If, however, a case was in unreliable hands, the ACLU could enter the case to make sure its interests were protected (Kobylka 1991). Finally, issues are increasingly complex today. That complexity is found on two distinct levels. First, the easy questions were litigated decades ago. To the extent that some “easy” cases still exist, they do not get a hearing before the Supreme Court. They would be decided by the lower

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courts. As Lawrence Wallace, a former Deputy Solicitor General (who incidentally argued more cases before the Supreme Court than anyone else) noted: Civil rights work is very trying these days. There is a great complexity to the cases. Twenty-five years ago the cases were less technical. It was a lot more apparent who wore the white hats. There are much closer issues today with merits on both sides. (Pacelle 2003, 266) This pertains to other issue areas as well. Cases that clearly trampled on individual rights and liberties were replaced by issues that were colored in increasing shades of gray. Cases that involved stomach pumping to obtain evidence or drawn-out interrogation without a lawyer to gain a confession were quickly and decisively reversed. More recent cases that involve the use of thermal imaging and global positioning systems present much more complicated questions for the justices. Questions involving symbolic speech and commercial speech are more difficult than restrictions on political expression. Race discrimination in education and housing led to questions involving remedies like busing and affirmative action. As Oliver Wendell Holmes noted, “hard cases make bad law.” Like the case we began the chapter with, Hustler v. Falwell, a difficult case involving satire could have spillover effects for freedom of expression. The second dimension refers to spillover effects that are not evident because they cross the normal boundaries between issues. This is where the analogy of Jenga fits best. The Court makes a decision in one area, and it has consequences for areas that may not even be apparent to the litigants or the justices. To return to a case we examined right at the start of this book, some analysts argued that Chief Justice Roberts’ opinion in the Obamacare case would have implications for the Defense of Marriage Act as well as other legislation with no connection to health care. When the right-to-die questions were litigated, the potential implications for reproductive rights were not too far from the surface. Is unlimited corporate spending in election campaigns free speech? These issues shuffle the deck in a number of ways. They raise new issues, often involve multiple issues, and may pit former allies against each other. Hate speech was such an issue. The ACLU and NAACP, longtime allies with common interests, were pitted against each other in these cases (Cleary 1994). Affirmative action combats past discrimination with what is sometimes referred to as “reverse discrimination” (Perry 2007). Feminist groups allied with fundamentalist Christian groups to support anti-pornography legislation when it was challenged in the courts (Jelen 1986). Like a spider web or a game of Jenga, one push or pull triggers a series of responses, some of which are predictable, but others of which are unforeseen and may rear their heads much later (Horowitz 1977). The

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decision in one area of law can be like a loose thread, and if the Court pulls that thread, it could unravel other parts of the fabric. This complicates the task for the Repeat Player. The RP controls its own litigation efforts, but it also has to monitor the work of others. That task is difficult enough in a confined area of law, but when the cases from other areas may create the judicial equivalent of a virus that infects others, the monitoring problem is exponentially more difficult.

Conclusion The expansion of political litigation and organized group activity should strip away the final veneer that the Supreme Court is somehow above politics. In fact, the process of screening cases and building doctrine depends on the cooperation of groups and the justices. It provides another point of access for all groups and the sole entrée for some groups and organizations (Tamanaha 2006). The prominence of the Supreme Court in policy making has enhanced the need for organized interests to work through the judicial system. The American system is fragmented and disjointed, and it needs bridges to link the disparate elements. Political parties, elections, and interest groups are the sorts of mechanisms that can join what the Framers had torn asunder. Interest groups with little influence in the other branches of government developed litigation arms. Soon those groups who had an active and successful presence in the elected branches recognized that they needed to extend their reach to the judicial branch (L. Epstein 1985). Organized litigants provide opportunities and impose constraints on the Supreme Court. The Court is a passive institution, at least on paper. It must wait for the proper case or controversy to be brought by a litigant with standing. The Court is also proscribed from getting involved in “political questions.” No one who pays even cursory attention to the Supreme Court believes that it can or will avoid political questions (except in the narrowest definition). The Court is not chained to these limitations. With the help of organized litigants and a few winks and nods, the Court can engage in the purposive construction of judicial doctrine. Justices need to attend to a number of audiences (Baum 2006). That can complicate their work. The other branches of government, the lower courts, and litigants are three of the most important audiences for the Supreme Court. Organized litigants are a necessary lifeblood of the system. The ability of the Court to sequence its work and to achieve a modicum of efficiency depends on organized litigants and the reception of the signals that flow back and forth between them (Baird 2007; Pacelle 2009). For its part, the courts offer another venue for organized interests. Historically, it was the only forum for some groups and the only opportunity for the advancement of civil rights and individual liberties. The bottom

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line is how effective the use of the amicus curiae brief is for organized litigants. Groups have easier and less expensive access to the courts. As a result, a wider variety of groups participates in the Supreme Court than in the elected branches of government (Collins 2008). One-Shotters are still underrepresented in the lower courts, and that is a problem, as we will see in Chapter 7, because those courts often shape the case before it gets to the Supreme Court. Justices and litigants share a desire to move policy in their preferred direction and to build and protect precedents that advance their goals. To do so, they have to act offensively when the time is propitious and defensively all of the time. Brown v. Board of Education was the result of strategic litigation activities. In its wake, groups like the NAACP and ACLU were prepared and pushed forward, extending their reach while the Warren Court and early Burger Court were receptive to their policy gambols. The NAACP and, to a lesser extent, the ACLU had control of their respective policy areas. They were able to sequence litigation and bring the proper cases at the propitious time (Wasby 1995). The Court was signaling that it was accepting all comers. But this open door policy would not last. Their success brought problems. Decisions that rapidly advanced civil rights met resistance, mostly in the South. Landmark decisions that protected the rights of defendants met resistance everywhere (Powe 2000). These changes in public opinion brought responses from the elected branches of government. That in turn brought a presidential candidate, Richard Nixon, who openly campaigned against the Court and sought to advance a “Southern strategy” to take advantage of the white backlash, in hopes of making inroads for the Republican Party in a traditionally Democratic area. A number of things changed for groups like the ACLU and the NAACP. First, public opinion helped lease the White House to the Republicans, who used their constitutional prerogatives to alter the ideological balance of the Court. This made the Court a less favorable venue for such groups. It also led to the resurgence of conservative groups as a counterbalance (L. Epstein 1985; Teles 2008). Second, the issues got more difficult. Stopping school segregation was relatively easy compared to devising remedies like busing. Southern segregation was clearly de jure (written into the law), but when the cases came North to de facto (in practice) forms of discrimination, the Court retreated (Patterson 2001; Baugh 2011). Third, the proliferation of issues brought its own constraints. In response to favorable precedents, groups like the ACLU pushed the boundaries. Issues like freedom of speech moved into multiple specific areas of law. The civil rights movement convinced groups and the Court to extend the boundaries of expression. Many of the cases involved civil rights protests at the legislature, lunch counters, libraries, and court houses. The landmark libel case, New York Times v. Sullivan, was civil rights related. Justices Hugo Black and William Douglas wanted to know

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why the First Amendment was color-coded. Why was speech for blacks (civil rights) protected while expression for reds (Communists) was not? They resolved that by protecting the latter as well as the former (Ball and Cooper 1992). The range of civil rights, free speech, and the rights of defendants spread out. But when the inevitable pendulum swung back in the other direction and the Court got less protective of rights and liberties, suddenly groups like the NAACP and the ACLU had to defend a vast terrain (Wasby 1995; Kobylka 1991). The NAACP had written the playbook for the use of the courts, and it was not long before dozens of groups tried to emulate its strategies and tactics. The increase in group activity made it harder to monitor developments and complicated the attempts of the long-term Repeat Players to control the pace and logic of litigation. Not only did such groups defend their past gains from justices who might want to roll back or change existing doctrine, they had to monitor well-meaning groups who might bring a case that might undermine a favorable precedent (Kobylka 1987). The influence of organized litigants and Repeat Players suggests that some voices are going to be much louder than others. The legal system, as Kafka noted, can be a forbidding place. The barriers to effective use of the judicial system are formidable for One-Shotters. But groups like the ACLU and the NAACP have helped level the playing field by making the One-Shotter (OS) in effect a Repeat Player. Short-term victories are fine for the individual OS, but the Repeat Players who assist them are more interested in long-term precedents that can help the next generation of One-Shotters. The best Repeat Players will work strategically for long-term gains when the environment is propitious. Their hope is to embed favorable precedents so that when the ideological balance of the Court tips in the opposite direction, they can weather the changes. Ideally, the new ideological coalition is unable to overrule the central precedents in the interest of preserving doctrinal stability. Such groups are forced to work defensively to avoid triggering a doctrinal landslide. What has made the lives of organized interests so difficult is that sympathetic but careless groups may sponsor cases that threaten the stability of an important precedent. For its part, the complexity of litigation has also affected the Court. We think of the Court as lacking information and litigants as being able to fill the void by sharing vital content about the law or the position of other actors in and outside of government. With the dramatic rise in the number of amicus briefs and organized groups participating in the process, the Court may now find itself in an information-rich environment with too many voices. The goal has become to separate the useful content from the flood of information that is available. The Court needs reliable information, and organized litigants have to strike the balance between winning a case at any cost and proving themselves to be dependable and trustworthy for the future (Cooper 1993; Salokar 1992; Pacelle 2003).

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The quintessential Repeat Player is the solicitor general. The solicitor general has some great advantages: resources, an unmatched opportunity to litigate strategically, the respect of every actor in the system, and an unsurpassed history of success (Black and Owens 2012). But at the same time, the SG has two significant constraints. First, all of its cases are brought on behalf of one client, the government of the United States (Pacelle 2003). Second, the SG owes the Court a level of candor that takes priority over its desire to win any particular case. If the SG strays too far from its legal duties and is caught up in the president’s orbit, he or she risks losing the advantages that the Office has worked so hard to accrue. If the solicitor general is too politicized, the Court may well punish the SG and the president (Wohlfarth 2009). The bottom line, as the literature and in Table 6.1.1 in Appendix 6 show, is that the SG has the greatest success among litigants and great influence over Supreme Court decision making. The SG and the Court provide an unmatched example of synchronicity over a period of time. The signals that pass back and forth between the Court and the OSG are relayed quickly and apparently understood (Black and Owens 2012). The SG expanded its amicus activities in the wake of the Brown decision. In an information-poor or information-rich environment, the SG stands out as reliable and trustworthy. The Court needs information on the legal implications of a case. The SG can assist the justices in understanding the nature of the issues and available alternatives and in framing legal questions. Few clerks have mastered the issues before the Court. Indeed, many are only five years out of college. The solicitor general’s office has more resources and experience than the clerks. In particular, the deputies who specialize in particular issues frequently bring more expertise and knowledge to that area than most justices (Pacelle 2003). For the Court to act strategically, avoid retaliation from the other branches, and protect its legitimacy, it needs information about the other branches, including their relative positions and the salience of those positions. The SG can provide that, as well as information about the relevant federal agencies. More importantly, the solicitor general can bring messages from the Court back to the president, agency, or Congress. Rex Lee and later Charles Fried told the Reagan Administration that the Court was weary of their attempts to undermine Roe v. Wade and it would continue to follow that course at its own peril (Fried 1991; Pacelle 2003). As long as the Court continues to subscribe to judicial activism, groups will seek a presence in the judiciary. The parties to the case are attempting to win, but Repeat Players are interested in longer-term goals. They have a symbiotic relationship with the Court in helping to build an agenda and construct coherent doctrine and policy. Those who are not parties to the individual cases still have a point of entry to explain the relevance of the case to their long-term interests. The policy environment has gotten more complex and multifaceted. Increasingly, cases are getting more

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complicated, and the ripple effects are spreading farther and farther. It is a dynamic and fluid environment despite the attempts to standardize the law. Some of the changes are spawned by the shifting ideological composition of the Court. But other transformations are launched by the litigants and groups who are involved with the justices in the “dance of litigation.”

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Appendix to Chapter 6

This chapter has examined political litigation, a specialized form of elite opinion. The solicitor general is certainly not the typical litigant. In fact, the OSG is the ultimate Repeat Player. The solicitor general can participate in three different ways—filing a brief when the government is a party to the suit (N = 1303 cases), filing an amicus brief when the government is not a party (N = 765 cases) but interested in the case, and as an amicus curiae when the Supreme Court invites the views of the office (CVSG) (N = 232 cases). Each of these forms of participation seems to involve different responses from the OSG, different priorities, and concern for different principals. I have incorporated a variable for the ideological direction of the position argued by the OSG in the case (liberal or conservative). Then I segregated the cases into the three categories: government as party, voluntary amicus briefs, and invited briefs. Thus there are three separate models in this appendix. As noted for the first category, the cases where the government is a party, I used the cases where the government was the moving party (the plaintiff). Those are the cases the OSG chooses to pursue, meaning that the office can be strategic. The results of Model 1 in Table 6.1.1 show the dramatic effects of the OSG on the Court’s decisions. When the solicitor general takes a liberal (conservative) position, the probability of a liberal (conservative) decision increases by .48. The influence of the OSG dwarfs the impact of any of the other variables. The two legal variables also have a statistically significant impact on decision making. The impact of the issue evolution (–.08) is somewhat attenuated compared to Models 2 and 3. Precedent has a strong influence. The probability of a liberal decision increases by .18, when the precedent facing the justices is liberal rather than conservative. Public opinion also has an impact, and it is greater in these cases than it is in any of the other models. Interestingly, none of the institutional variables have any impact in the cases brought by the OSG. The Court is not concerned with the president, House, or Senate, figuring perhaps that the OSG has vetted all of their views and is representing at least some of their positions. The shocking

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Table 6.1.1 The Influence of the Solicitor General on Supreme Court Decision Making

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Model 1 Government as Moving Party Independent Variable

Θ (S.E.)

Supreme Court Ideology Presidential Ideology House Ideology Senate Ideology Precedent

.34 (.62) .11 (.18) .01 (.57) –2.01 (1.19) .45** (.07) –.28** (.08) .06** (.02) 2.18** (.14)

Issue Evolution Public Mood Position of the Solicitor General Constant

–3.51** (.99) LL = –687.74 χ2 = 428.7 P < .0000 N = 1,303

Δ Prob. Liberal Decision .02 .00 .00 –.03 .18 –.08 .05 .48

—

Model 2 Voluntary Amicus Briefs Θ (S.E.) 1.55 (.81) .01 (.21) 1.49* (.67) –2.87 (1.57) .42** (.09) –.24* (.12) .01 (.03) 2.24** (.18) –1.12 (1.51)

Δ Prob. Liberal Decision .05 .00 .03 –.04 .17 –.05 .01 .50

—

LL = –409.83 χ2 = –237.9 P < .0000 N = 765

Note: (*) = p ≤ .05, and (**) = p ≤ .01. These models were estimated with logit regression using Stata 12.1. Standard errors in parentheses are robust. Simulated probabilities are calculated from 0 to 1 for dummy variables and from the mean plus one standard deviation for continuous variables.

result is that the ideology of the Court has no impact on its own decisions. And while some of that may reflect the salience of the issues, it also speaks volumes about the influence of the OSG. The excellence of the solicitor general and the respect the Court holds for the office is such that the justices will put aside their deeply held convictions to follow the lead of the OSG. Next, I isolate the cases in which the OSG files an amicus brief (N = 765 cases). As a voluntary amicus, solicitors general play three roles: they may intervene because there is a latent federal interest (Pacelle 2003; Lee 1986),

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they may be asked to do the president’s bidding (Segal 1988), or they may have some reason to get involved for jurisdictional or legal reasons (Salokar 1992). To the extent that the SG has to balance law and politics, the latter is considered more prominent in the amicus curiae cases. When the SG is added to the model, most of the results (shown in Table 6.1.1, Model 2) look almost identical to the government as party cases (Table 6.1.1, Model 1). The most striking finding is that the strongest influence comes from the position adopted by the solicitor general. The presence of the OSG as amicus enhances the chances of a favorable decision by .50. From Model 2, it is impossible to determine whether the SG is successful because of the excellence of the Office’s attorneys and the quality of its work, or the ability to litigate strategically. But given the types of cases, it is unlikely that this is strictly a function of being strategic and bringing the strongest cases. As amicus, the OSG is less concerned about a harmful precedent because the government is not party to the case. The amicus brief may afford the opportunity to make a political statement. The SG may file an amicus brief because the Office is trying to limit a potentially damaging precedent. Such cases would be likely categorized as a loss, so if the winning percentage was the primary objective, the SG would simply sit it out. In fact, if anything, the SG is often accused of being too political in filing amicus briefs to its detriment. Wohlfarth (2009) found that when the SG is too politicized, it suffers a higher percentage of defeats in subsequent amicus cases. Part of the success of the OSG comes from the fact that the office often needs to support a position that protects the power of the central government but may be at odds with the position of the administration. This is consistent with the findings of Bailey, Kamoie, and Maltzman (2005) that show that the OSG is quite successful when it advocates a position different from that of the president. This engenders the trust of the Court and pads the reputation of the solicitor general. The differences in the relative influence of the various factors from Model 1 are of degree rather than kind. In many of the models in previous chapters, the ideology of the president had an influence on the Supreme Court’s decisions. Once the OSG is introduced to the model, the influence of the president disappears. This suggests that the SG is frequently doing the bidding of the president in at least some of these cases. Once the impact of the solicitor general is taken into account, the president is not an independent factor that the Court has to consider. But it also suggests that not all of these amicus cases are brought on behalf of the president’s prerogatives. The Court does pay some attention to the House. The impact of the House is small, but it is statistically significant. Once again, the Court’s decisions are not influenced by the policy position of the Senate. The influence of public opinion is absent once the solicitor general is included.

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The ideology of the Court has a small impact that just misses statistical significance (.055). Again, this suggests that the OSG is filing briefs to advance the interests of the government, rather than the administration. The issues the president cares about tend to be the ones the Court finds salient. As salient issues, the attitudinal variable would exert a much stronger effect. The two legal variables, issue evolution and precedent, both have a statistically significant influence on decision making, controlling for all of the other variables. Another aspect that suggests that amicus briefs are used for multiple purposes is the impact of precedent. The impact of precedent is virtually the same as it was in the cases in which the government was a party (.17 instead of .18) in Model 1. The reputation of the solicitor general and the trust of the Court are most clearly manifested in two areas. First, the OSG is an initial gatekeeper for the Court. Remember that the Court faces 10,000 petitions for its attention. It could be hundreds more if the OSG did not carefully screen all the cases involving the government. When the SG does file a petition for a writ of certiorari, the Court assumes it is an excellent case or it would have been screened out. Second, as noted, on a few occasions each term, the Court will invite the solicitor general to participate as the justices seek some assistance with the case. To determine whether these cases are different, I will isolate the 232 cases in which the OSG was invited to participate. The results shown in Model 3 in Table 6.1.2 depart dramatically from the other forms of participation. The most striking finding is that none of the attitudinal, legal, or strategic variables are statistically significant. That the president or Congress does not influence the Court in this subset of cases may not be shocking, but that issue evolution, precedent, and the ideology of the Court do not have an impact is remarkable. Black and Owens (2012) show that a number of justices change their votes to reflect the recommendations of the SG. The cases may be less salient, which may explain the lack of impact from the other branches and from the Court itself. Indeed, the SG did not consider the case significant enough to join voluntarily (Pacelle 2003). The only variable that is statistically significant is the position of the OSG in the case. And its impact remains outsized. In fact, it is even larger than in the other two sets of cases (a probability of .54) in Models 1 and 2. When the Court makes its decisions in these cases, it pays close attention to the position recommended by the solicitor general. This makes sense, because the Court dealt with its uncertainty by calling for the views of the solicitor general and then defers to the recommendation. In part, this is because the SG makes its recommendation on grounds other than policy preferences. The invited amicus brief fulfills the original intent of the device. The solicitor general is the true “friend of the court,” offering a nonpartisan reading of the law (Pacelle 2006).

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Table 6.1.2 The Influence of the Solicitor General on Supreme Court Decision Making

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Model 3 Invited Amicus Briefs (CVSG) Independent Variable

Θ (S.E.)

Supreme Court Ideology

1.63 (1.38) .21 (.42) 1.65 (1.32) –2.85 (2.91) .21 (.17) –.19 (.20) .08 (.05) 2.40** (.35) –5.28 (2.79)

Presidential Ideology House Ideology Senate Ideology Precedent Issue Evolution Public Mood Position of the Solicitor General Constant

Δ Prob. Liberal Decision .02 .01 .03 –.02 .05 –.02 .01 .54 —

LL = –121.72 χ2 = 73.76 P < .0001 N = 232 Note: (*) = p ≤ .05, and (**) = p ≤ .01. These models were estimated with logit regression using Stata 12.1. Standard errors in parentheses are robust. Simulated probabilities are calculated from 0 to 1 for dummy variables and from the mean plus one standard deviation for continuous variables.

Notes 1. It is probably easy to tell from my choice of baseball rivals that I am a Yankees fan. My feelings for Notre Dame and Michigan are not as revealing. Notre Dame is both roundly revered and reviled, but Michigan should be a clue. This narrows it down primarily to Ohio State and Michigan State. It is the former, my home for graduate school. Any passing knowledge of women’s basketball will lead to the conclusion that I am a fan of the UConn Huskies (my alma mater). For the record, I chose the Mets and Wolverines as the lesser of two evils. The decision between the Volunteers and Fighting Irish in basketball was much more fluid until I moved to Knoxville.

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2. Let me be clear that this does not include wishing injury on any of the players who are temporary and transitional but wearing the hated uniforms (with apologies to Jerry Seinfeld). 3. Before proceeding to the Supreme Court, the losing party in a Court of Appeals decision can petition for a rehearing en banc. The case is initially heard by a three-judge panel on that particular circuit. If the case is significant, it can be reviewed by all of the judges on the circuit, sitting en banc. The en banc panel upheld the judgment of the original three judges. But one of the most respected judges, Wilkinson, “crafted a thorough and stirring opinion explaining why the jury’s award should be reversed” (Smolla 1990, 172). As noted in Chapter 7, en banc decisions and dissents are rare enough that they attract attention from the Supreme Court. In addition, Perry (1991) maintains that the justices pay particularly close attention to the opinions of well-respected lower court judges, many of whom, like Wilkinson, had clerked for a justice at the Supreme Court. 4. The Roth/Memoirs test came from the cases of Roth v. United States (1957) and Memoirs v. Massachusetts (1966)

7

The Supreme Court and the Lower Courts

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A Bureaucracy to Call Your Own

Although not everyone agrees that such a thing even exists, a “super precedent” has been defined as a longstanding Supreme Court decision that establishes “foundational institutional practices” (Landes and Posner 1976; 249). The practices established by these precedents become entrenched within society, are repeatedly endorsed and supported by public institutions, and become a source of many other lines of decisions. They can only be reversed through the most radical, unprecedented acts of political and judicial will (Gerhardt 2006, 1027). Landes and Posner (1976, 251), who are credited with coining the term, argue that a super precedent is so effective in defining the requirements of the law that it prevents legal disputes from arising in the first place, or, if they do arise, induces them to be settled without litigation. Such a “super-precedent” might never be cited in an appellate opinion yet have greater precedential significance than most frequently cited cases. Even those who dispute the notion of a super precedent as anything more than a fancy name or an artificial designation will concede that if it exists it is embodied in decisions like Brown v. Board of Education (Barnett 2006; Solum 2006; Sinclair 2007). Brown v. Board of Education was a moral imperative. Scholars have criticized the decision on the grounds that it was based on sociology rather than law (see Kluger 1975), was a meta-activist decision (Bickel 1962; 1975), exposed the weakness of the judiciary (Horowitz 1977), preempted what would have been a more effective response from the elected branches (Rosenberg 2008), and for how the Court handled the post-decision phase (Peltason 1971). But no one outside of ardent segregationists criticized the decision for what it represented in the battle for civil rights and equal protection. It stands as a cornerstone principle of law, and it changed the patterns of the Court’s agenda building. The Court systematically paid less attention to economic cases, creating agenda space to build civil rights and individual liberties doctrine in the support of, or to expand upon, the Brown precedent (Pacelle 1991).

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When the Supreme Court announces a decision ending segregation, banning school-led prayer, mandating the use of warrants, or sanctioning an affirmative action program, it relies on others to interpret the holding, apply the principles to other situations, and to carry out the directives. Lower courts have to glean the general principles that come from the case and apply them to myriad other circumstances (Canon and Johnson 1999). The expectation (or rather the hope) is that the lower courts will do this faithfully by following vertical precedent from above. After the decision is interpreted, it has to be executed. School boards and teachers have to make sure that children are not led in prayer by an agent of the state (Muir 1967; Dolbeare and Hammond 1971). The police and lower court judges have to seek and approve, respectively, properly construed warrants (Long 2006). And businesses or college admissions offices have to make certain a program permitting some preferential treatment to redress the effects of past discrimination is focused and narrowly drawn (Ball 2000). It does not always work as planned. Most of my family were public school teachers, and my aunts continued to lead their students in mandatory flag salutes and prayers. I can reveal this now because they are retired, and the statute of limitations has long since tolled on their unconstitutional behavior. On May 17, 1954, the Supreme Court unanimously induced a constitutional tsunami. The Court’s opinion announced that in the field of education “separate but equal” had no place. The Court took the unusual step of asking the attorneys to return during the next term and file briefs, and to be prepared to discuss what remedies would be imposed and the implementation of the desegregation orders (Cottrol, Diamond, and Ware 2003, 182). The Court also invited the southern states to participate, asking each of the parties to consider the pace of implementation, how detailed the instructions should be from above, and whether the District Courts should be in charge of the process (Peltason 1971, 13). Famously, the Court settled for what would be an unfortunate phrase as a timetable for dismantling segregated education: “all deliberate speed.” The Court knew that the school boards would be intransigent in some parts of the South. So, it decided to put lower federal court judges in charge of monitoring compliance and the implementation of desegregation. Or as Jack Peltason (1971, 4) put it, “the full burden of forced compliance, of presiding over this major social revolution, had fallen on forty-eight United States district judges.” Lower federal court judges and local school boards would be responsible for animating a revolution they did not support. Arguing for the NAACP, Thurgood Marshall urged the Court to properly instruct the lower court judges and arm them with authority. The remand meant that lower court judges could not claim that they were unfamiliar with the situation that they were handed (Wasby, D’Amato, and Metrailer 1977, 124). The directions from the Supreme Court were

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neither clear nor explicit. The very phrase “all deliberate speed” is vague at best, and juxtaposing the almost oxymoronic words “deliberate” and “speed” invited even more confusion and recalcitrance. The Supreme Court wanted this process to succeed and showed patience with the lower courts. It refused to review many of the early desegregation suits to permit the local communities to fashion their own solutions. This, in effect, made the Circuit Court of Appeals the court of last resort (Peltason 1971, 28). Desegregation in the border states was not painless, but it did proceed. It gradually “seeped” into the cities in the deep South (Kluger 1975, 746). While southern leaders raised their voices in protest to Brown, the interim or “cooling off period” between Brown I and Brown II saw rancor in the South “modulated,” but apprehension was clearly growing (Kluger 1975, 716). The pattern of delay would begin almost immediately, with lower court federal judges parsing every word of the opinion and interpreting them in ways to slow desegregation (Jackson 1992, 90–91). The federal judges charged with the responsibility of monitoring and implementing desegregation came from the same social, economic, and political milieu as their fellow citizens. All of the district judges were white males, 43 of the 48 were born, raised, and educated in the South (Patterson 2001, 91). While some were blatantly segregationist, most were moderates who nonetheless favored segregation (Peltason 1971). Lifetime tenure provides independence and some insulation from the political winds, but those protections hardly seemed equal to the pressures that southern judges faced. Some made valiant efforts to comply with the directives and were ostracized and threatened in their communities. These public officials were put in an unprecedented “cross fire of such intensity that even the dignity of high office offers little protection” (Peltason 1971, 5). While the federal judges’ personal backgrounds and their sincere policy preferences were centrifugal forces that may have pushed them to evade the Court’s decision, there were some centripetal factors that urged compliance. While it is true that Courts of Appeals and the U.S. Supreme Court have no formal disciplinary power over District Courts and review their work sporadically, there are factors that compel faithfulness and adherence to the law. For one, these judges were officers of the court. They had been socialized in law school and in their training to follow vertical precedent (Tarr 1977). Institutional forces, like the legitimacy of the Court, the visibility of the issues, and the vigilance of repeat player litigants, also work toward compliance. On a more personal note, most judges wish to avoid reversal by a superior court (Baum 1978). In the days immediately following the Supreme Court’s initial rulings, judges were telling their communities that they must integrate the schools. They would have some say over how the decision was implemented, but change was inevitable. However, in the face of a huge backlash and little assistance from the High Court, many District Court judges retreated.

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What the district judges needed was “not the responsibility for making choices, but rigid mandates that compel them to act” (Peltason 1971, 245). The ambiguity of the Supreme Court’s decisions enabled segregationist judges to set the pace and hindered those who were trying to follow the directives. The Court’s initial decision was a moral imperative, but carrying out the decision would test the legitimacy of the judiciary. One could argue that, particularly in this circumstance, judges needed “a hierarchy of scapegoats” (Wasby, D’Amato, and Metrailer 1977). District Court judges need to protect themselves by blaming Courts of Appeals judges who could in turn blame the Supreme Court. The local school boards could use the courts as their scapegoats. But the weak language of Brown II, coupled with the Supreme Court’s reluctance to intervene paternalistically, did not provide such leadership. Rather than help the lower courts and communities prepare for the changes, the additional year gave the forces of segregation a chance to rally forces and devise evasion tactics. Some blamed the Court for elevating compliance concerns over principle. The Court clearly had to be concerned with the implementation of its directives, but the vagueness of its charge and the indeterminate time targets suggested that principle and justice were being sacrificed for expediency. In retrospect, it has been suggested that respect for the court and law is better served by not trimming your sails (Wasby, D’Amato, and Metrailer 1977, 126). The Supreme Court had to reintroduce itself to the fray after the erection of numerous barriers, including closing the public schools, freedom of choice plans, and pupil assignment laws (Jackson 1992). Each one of these was a delaying tactic that continued to kick the can down the road. Fourteen years and 500 lawsuits later little had changed in many parts of the South, and two elementary school generations passed with hardly any implementation in the deep South (Wasby, D’Amato, and Metrailer 1977, 123; Landsberg 1997, 51). Some students were unable to go to school for a year or two at a time (Branch 1988, 413). The southern reaction to Brown was multifaceted: use litigation to slow the process of integration, organize at the local level, agree on methods of resistance, and devise strategies for the assignment of students. The NAACP and those sympathetic to integration had to cope with “the endlessly imaginative legal offensives waged by their white opponents” (Patterson 2001, 95). There were a few successes that civil rights proponents could point to that illustrated a limited formula: if local officials acted quickly, they could seize the initiative. If they received help from federal officials and the courts, they might prevail (Patterson 2001, 101). It is easy to lay the blame on the lower courts. To be fair this was an unusual circumstance and a monumental task even under the best circumstances. Lacking clear language from the Supreme Court, it was difficult for southern judges to stand up to their communities. Needing powerful allies, sympathetic judges often stood alone. That problem was

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compounded by the failure of the Supreme Court to reinforce Brown throughout the early resistance. The judges permitted the slow pace and justified it as a legal alternative to speedy compliance (Patterson 2001, 116–117). As Ernest Gellhorn noted, compliance moved “with the pace of an extraordinarily arthritic snail” (Patterson 2001, 113). This chapter is concerned with the lower federal courts and their relationship to the U.S. Supreme Court. In particular, I am going to concentrate on the Federal Courts of Appeals and their judges. The defiance and evasion of the Brown landmark decision is not the typical response by lower courts. I could have chosen any number of examples of Supreme Court decisions that were cheerfully and faithfully applied by lower courts in later cases. Instead, I opted for the other end of the continuum: a visible case that involved many of the factors we have been considering in the last few chapters.

The Circle of Law Federal appellate courts play an important supervisory role in the judicial system. The gradual narrowing of the Supreme Court’s mandatory jurisdiction left most appeals to the circuit courts for resolution. Federal Courts of Appeals primarily serve two functions in the judicial system: error correction and law making. We probably think of Courts of Appeals as primarily being involved in error correction, but their role is significantly broader. Certainly, circuit courts provide an important check on the decisions of individual district judges and administrative agencies. But when legal issues are new or evolving, or when existing rules are incomplete, the Courts of Appeals would play a significant role in filling gaps or providing foundations. Thus, it is not unusual to find circuit court judges engaged in the process of shaping or creating new legal rules (Hettinger and Lindquist 2012, 126–129). The influence of Courts of Appeals flows up and down the judicial hierarchy. We will see whether the legitimacy attendant to the Supreme Court and the rule of law is powerful enough to induce their compliance. The lower courts are part of a large federal judicial bureaucracy. We will see that the Supreme Court faces some of the same constraints with this bureaucracy as it did with the federal bureaucracy that we examined in Chapter 4. In Chapter 5, in the discussion of public opinion, I introduced Janus, the two-faced god. Well, if Janus had children, siblings, or cousins with a similar genetic makeup, one of them could represent the relationship between the higher and lower courts.1 Failing to find any ancestors with “the trait,” we may need to move to the Middle East where there is a similar deity known as Ianos, who also was bi-facial. Like his Roman namesake, with Ianos looking in both directions, the influence of the lower federal courts points both up the hierarchy and down. The lower courts help shape and frame the cases as they move up the hierarchy toward the

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Supreme Court. And once the Supreme Court makes a decision, the lower courts have to apply the new precedent as it heads back down the ladder. When the Supreme Court issues its directives, it is bent on influencing the lower courts in their application to future cases. But in setting the agenda and framing issues, the lower courts have their chance to influence the Supreme Court. In Rome, they consider Janus to be the god of the gate or the door, or the god of transitions. In that respect, maybe he (or his alter ego, Ianos) is a better symbol of the relationship among the courts than between the courts and public opinion. We think of the courts as gatekeepers, and the cases they decide are in transition in both directions. They convey important information to and from the Supreme Court. When a case reaches the Supreme Court, the justices rely primarily on four sources of information to help them in rendering their decisions. We have examined a number of these sources, particularly in Chapter 5. First, the conflict that gives rise to the particular case involves the two parties to the litigation. Each of those litigants attempts to persuade a majority to issue a favorable decision through its briefs. Second, repeat players, often in the form of the litigation arms of interest groups, can expand the issue and the conflict beyond the two parties. These groups provide the Court with their own interpretations of the correct application of the law by filing amicus curiae briefs (Collins 2008). Third, the justices obtain information regarding the litigants’ desired applications of law during oral arguments, and they can question their attorneys for clarification (Johnson 2004). Finally, the justices obtain information to assist them in adjudicating the dispute from the opinions of the lower court judges who initially disposed of the case (Corley, Collins, and Calvin 2011). This last source is part of the subject of this chapter. The Supreme Court’s majority opinions play a significant role in the American legal and political systems. Within the legal system, these opinions are precedents that constrain lower court judges (vertical precedent) and future justices (horizontal precedent) (Hettinger, Lindquist, and Martinek 2006). Moreover, majority opinions act as guides for litigants, shaping the arguments they make in their written briefs and during oral arguments (Epstein and Knight 1999). Within the broader political system, Supreme Court opinions influence the behavior of agencies and citizens and further place limits on the content of legislation in Congress and state legislatures (Corley, Collins, and Calvin 2011). We often neglect the fact that these decisions do not emerge full-blown from the Supreme Court. Justices sometimes use the opinions of lower courts to inform their decisions. When the Court issues a decision, it relies on the lower courts to interpret the decision and apply it to the numerous similar but not identical factual situations that arise in their respective jurisdictions. This recognition of the two directions of influence provides a far more nuanced view of the judiciary as a web of interactions between different levels of the legal system.

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If the Courts of Appeals Make a Decision and No One Is Listening, It Still Makes a Sound I would not blame you if you concluded that the lower courts were not particularly important and were essentially just involved in the role of norm enforcement. People like me who concentrate on the Supreme Court are, in part, to blame. The Supreme Court is one of the most studied institutions of government. There are just under a hundred District Courts, over a dozen Courts of Appeals, and 50 state court systems. I would hazard a guess that there are more books and articles written about the Supreme Court than all the lower courts combined (at least until recently). I cannot, however, be blamed for the fact that past presidents did not consider the lower courts quite important enough. The constitutional authority to appoint federal judges belongs to the president under Article II (with the advice and consent of Senate). But over time presidents decided that District Court positions were useful bargaining chips to trade away for immediate support for their other policy designs. Hence was born the unwritten but traditionally inviolate custom of Senatorial Courtesy. When a District Court vacancy arises, rather than simply appoint a judge, the president must clear an appointment with the senator from the state of the vacancy. If the president neglects to follow this procedure, the Senate will invoke this custom and reject the nomination (Goldman 1997; Steigerwalt 2010). In effect, it reverses checks and balances. Later presidents tried to reclaim their constitutional prerogative but with little success (Goldman 1997). If presidents once considered District Court appointments to be cushy landing spots for friends or something more valuable to senators, they understand today the value of the lower courts. Although Jimmy Carter tried to exert enhanced presidential influence over the process,2 Ronald Reagan was perhaps the first president to make it a priority for the administration. Reagan sought to pack the federal courts with conservatives faithful to his legal goals (Caplan 1988, 231–234; Goldman 1997; Pacelle 2003). The administration’s goal was to have sympathetic judges shaping cases before they reached the Supreme Court. The selection of lower court judges has migrated from patronage to substantively political (Steigerwalt 2010). Whether it is the political law of physics or simply karma, action begets reaction. To counteract the Reagan Administration’s attempts to pack the lower federal bench with conservatives, Democrats monitored the nomination process to make sure that the courts did not tip too far to the right. Senators were increasingly dismayed by their loss of power over nominations. The increased ideological and political tenor of the appointments led to more careful screening from the president and senators. The process has been thrown wide open with the outside activism from interest groups across the entire political spectrum (Steigerwalt 2010). At this point the process appears

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to carry remnants of the patronage system, but it is increasingly partisan, and it is unclear whether it is on the verge of unraveling. Nominations for the Courts of Appeals are increasingly beginning to look like Supreme Court nominations, which is to say more contentious.3 It will take a while to reach a new equilibrium. There is one other underappreciated fact about the lower courts. It is a reflection of a simple mathematics problem. Divide the number 391,869 by 83, or if you want a simpler problem, try dividing 55,126 by 83 (Carp, Stidham, and Manning 2014, 47–48). Give up? The former is the ratio of cases decided in the federal District Courts in 2011 to the number of full opinions issued by the U.S. Supreme Court in 2010. The latter is the ratio of Courts of Appeals cases to Supreme Court decisions. If we strip away the big numbers and just look at the little ones, there is a clear message: very few cases get all the way to the Supreme Court. For the vast majority of cases, the lower courts are the de facto courts of last resort. I suppose I do not need to remind you that this book is about the influences on Supreme Court decision making, and by now you have surmised (I hope) that decision making is complicated by a number of factors. At the beginning I introduced what some analysts have called the naïve legal model and the naïve attitudinal model. While these two models of decision-making could not be more different, they share one element: they are simple, parsimonious explanations of decision-making. In each a single factor explains decisions. What are the influences on the decision-making of lower court judges? Not to be difficult, but I am going to ask for a short continuance before I address that question. The typical naïve answer is to invoke the legal model. More generally, the response might be that as one moves up the hierarchy toward the Supreme Court, the attitudinal variables get stronger and the legal ones get weaker. But I think it would be more beneficial to discuss the context for decisionmaking before making a final summation.

Of Principles and Principals: There Is No “I” in Team, But There Is “Me” The relationship between the Supreme Court and the District Courts and Courts of Appeals is much more complicated than it appears on paper. The lower courts owe deference to the Supreme Court and its decisions, but much of the true influence may actually be inverted. Lower courts almost certainly have more influence than we have traditionally thought. There is some debate in the academy whether the judiciary is a bureaucracy, but that debate confuses theory with results. The judiciary is undoubtedly a bureaucracy, it is just not an effective one (Clark and Kastellec 2013; Haire, Songer, and Lindquist 2003). There are different ways to view the relationship between the Supreme Court and the lower federal courts. The different conceptions of the

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relationship span the distance between the theory of how the lower courts should work and the reality. The idea that the Supreme Court makes clear decisions that are widely disseminated and faithfully applied is clearly not the norm. Lower court judges seem to be independent of the Supreme Court, which is true to a large degree. Many of the issues dealt with by lower courts do not interest the Supreme Court or are relatively insignificant. Many Supreme Court decisions provide broad leeway permitting lower court judges to argue they are in compliance. Supreme Court decisions themselves are often vague because of the complexity of the case or the need to hold a majority together. The vagueness expands the range of options for the lower court judge. The relationship between the Supreme Court and the lower courts can be conceptualized in four ways. The traditional way is to view the lower courts as part of a hierarchical organization that is closely supervised by the Supreme Court. The conventional wisdom was that the bureaucratic aspect of the hierarchy would compel lower courts to follow the dictates of the Court above. That was contradicted by a number of empirical studies that demonstrated that the bureaucratic elements were not a strong enough force to ensure compliance (Canon and Johnson 1999; Baum 1978; Songer and Sheehan 1990; Reid 1988; Gruhl 1980). It is clear, for instance, that the justices can only review a small percentage of the cases emerging from the lower courts. While this level of control may be the result under some conditions in some areas (Westerland, Segal, Epstein, Cameron, and Comparato 2010; Haire, Songer, and Lindquist 2003), we can safely reject the hierarchical bureaucratic model of lower court decision making as a viable general explanation. At the other extreme, some consider it tempting to think of the lower court judges as political actors who are virtually free agents with a great deal of discretion because of the lack of direct supervision from above. The result is that judges are actors motivated by significant opportunities and only slightly limited by finite constraints who seek to advance their sincere policy preferences. The idea of the lower court judges as free agents who have the ability to exercise their sincere policy preferences is overstated. Again, this behavior can be seen under some limited circumstances, but it is not the rule. There is a wide middle ground marked by the more plausible principal-agent and team theories. The principal-agent and team theories consider the judiciary to be akin to an administrative agency with lower courts as bureaucrats implementing to the best of their ability the policy enactments of the Supreme Court and using their expertise to fill gaps when and where they arise. Broad organizational theories specify the relationship between the Supreme Court and lower courts. Organizations develop a certain amount of inertia and are slow to change standard operational procedures. Precedents coming from above and novel interpretations from below can be disruptive forces that impose on standard operations. The fact that it is a

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common law system means that there is always the need for some midcourse adjustment (Benesh 2002, 261). Songer, Segal, and Cameron (1994) argue that principal-agent theory is an effective means of viewing the relationship between the Supreme Court and the lower courts. The judiciary is a hierarchy in which subordinate actors (agents) are charged with the responsibility of implementing policy devised by actors at higher levels (principals) (Brent 1999; 2003; Westerland et al. 2010). The Supreme Court is a principal that sets standards and relies on the lower courts, its agents, to make decisions consistent with its guidelines. If the circuit courts consisted of faithful agents, they would simply follow precedents issued by the Supreme Court. “But utility maximizing appeals court judges also have their own policy preferences, which they may seek to follow to the extent possible” (Songer, Segal, and Cameron 1994, 675). According to principal-agent theory there are a number of factors that provide agents with the opportunity to “shirk” or follow their own preferences. They may diverge from the goals of the Supreme Court permitting them to shirk. Shirking is limited by monitoring the behavior of the agent. But often, the difficulty in monitoring is acute for the principal. Superiors typically incur significant costs in monitoring the actions of subordinates. There is asymmetric information in the form of the expertise of the agents, and there are transaction costs for the principal in overturning the actions of agents. Typically, principals find means to ameliorate these problems by relying on signals, often from third parties (like litigants and repeat players), that warn them when agents are shirking (Moe 1984; Songer, Segal, and Cameron 1994). Judicial principals engage in only sporadic, inconsistent oversight. Thus agents are relatively free to pursue their own goals even when they conflict with those of the principals (Brent 2003, 560). Supreme Court justices typically only learn of circuit decisions that are appealed to them. Further complicating the monitoring is the fact that the number of appeals is so large that the justices can give most petitions only a cursory review (Benesh 2002; Perry 1991). The appellate courts are afforded few opportunities to monitor the thousands of cases. Thus, the lower courts have a good deal of latitude to shirk if they so choose (but see Westerland et al. 2010). The extreme rarity of reversals poses a challenge to a principal-agent analysis of the court hierarchy. Even though the actual sanction is rare, if an appeals court anticipates that it will be sanctioned in the form of a reversal, a preemptive response may keep the court from shirking. The key to this anticipated response is a “fire alarm” from a third party that relieves the principal of part of the burden of monitoring the agent (McCubbins and Schwartz 1984). In the judicial system, litigants perform the role of sounding the alarms when a Court of Appeals has not followed the directives of the Supreme Court. Appeals court judges are well

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aware that the losing parties have a strong incentive to appeal an adverse decision that is inconsistent with Supreme Court precedent. Litigants, particularly repeat players, have “the competence and the will to scrutinize their decisions intensely and will bring flagrant doctrinal shirking to the attention of the principal” (Songer, Segal, and Cameron 1994, 693). This knowledge should lead the agent-judges to anticipate fire alarms and sanctions if they engage in excessive shirking. Thus, the judges may adopt a defensive posture that yields responsiveness and doctrinal congruence (Songer, Segal, and Cameron 1994). One alternative to a principal-agent perspective is “team theory.” Team theory suggests that different members control different decisions in the organization. Those members possess different information relevant to the achievement of the team’s goals. Thus, information and decisionmaking are decentralized and spread throughout the organization. At the same time, there are shared organizational goals that pull the disparate elements together. The primary shared organizational goal for the judiciary is correctly deciding cases, and adherence to precedent is simply a matter of enhancing the likelihood of correct decisions. This would help explain the normal fidelity of lower courts to higher court rulings (Benesh and Martinek 2012, 264–265). Team dynamics would rest on shared mores and the legitimacy of the judiciary. It is important to remember that not all cases or issues on the Court’s docket are the same, even among the handful that are accepted for oral argument and full decision. The doctrinal construction of some issues is dominated by the Supreme Court, and the lower courts would understand that the justices will look more closely at those types of cases. On the other hand, there are important issues that the justices delegate to the lower courts and thus do not invest their finite resources in close monitoring (Pacelle 1991; 1995). Judges at the top of the hierarchy presumably have greater levels of expertise (at least in regards as to where they want precedent to go) and select the appropriate cases to articulate guiding principles and precedents. They also have the discretion over their dockets that is essential to being able to craft such precedents. Lower court judges, lacking docket discretion, have less expertise and time. Thus, they have to use precedents as a shortcut that will permit them to render more correct rulings (Kornhauser 1995; Westerland et al. 2010). Under the principal-agent perspective, lower courts comply because the Supreme Court is their superior and can monitor and sanction any shirking. By contrast, under team theory, lower courts follow because precedent is “correct” legal interpretation (Benesh and Martinek 2012, 265). It is, however, difficult to tell which of these models may be in force. When lower court judges faithfully apply a precedent is it a function of getting it “right” (team theory), or in deference to an authoritative superior (principalagent theory)? Do they follow precedent because it is the best evidence of

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a correct legal ruling (team theory), or because it is a command as to how a lower court judge ought to make a decision (principal-agent theory)? The Supreme Court is the “boss” of the lower courts and it is authoritative. But the Court faces an adverse selection problem. It must rely on agents chosen by others and is powerless to remove wayward judges. The inability to select its subordinates makes the free agent theory possible and limits the ability of the High Court to compel faithful interpretation, whether from a bureaucratic, principal-agent, or team perspective. Federal judges are at least chosen by similar means and perhaps imbued with a little of the federal ethos. But state judges are often elected, and that may create different decisional dynamics (Benesh and Martinek 2012, 263). For the most part, lower court judges heed the policy prescriptions of the justices because the Court is their superior, and it is their job to follow precedent and help standardize the law. Litigants make rational calculations as to the likelihood of Supreme Court review when deciding whether to appeal. Lower court judges have an incentive to consider Supreme Court precedents to lessen the likelihood of an appeal. They may be concerned with the effects of reversal on their personal reputations (Carminker 1994) or having policies put into effect that violate their personal goals (McNollgast 1994). But it is also true that reversals are rare (Benesh 2002), and lower court judges claim not to be concerned with this sanction (Klein 2002). Legitimacy is the acceptance of the Supreme Court as the arbiter of the Constitution, and it may be the mechanism for compliance in both the team and principalagent models. Whatever the incentive, directives of the Court are treated seriously and carefully by Courts of Appeals. Many judges maintain simply that complying with the Supreme Court is their job (Benesh and Martinek 2012, 268). The challenge for the Supreme Court (and the Courts of Appeals) is to control heterogeneous preferences among participants. Superior courts have typically relied on the legitimacy of the institution as well as individual socialization. Westerland et al. (2010) suggest that superior courts place increasing reliance on structural incentives to induce compliance or to reduce defiance. Regardless of the perspective adopted by analysts, virtually all agree that lower courts try to follow the Supreme Court. Lower court judges tend to respect precedent and comply even when they are ideologically distant from the Supreme Court. Those results allow us to dismiss the idea of judges as free agents. The empirical results appear to point in the direction of a hierarchical model, but the practical realities suggest that the hierarchical model is not a good explanation for the behavior. Rather, the results argue for a principal-agent model in which the agents are not shirking, or a team theory. In their study that concludes that lower court judges do attempt to adhere to the opinions of the Supreme Court, Westerland et al. (2010) posit a course that is marked by uncertainty that is reduced over time by

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a process of learning. The initial Supreme Court precedent provides some form of guidance in the particular area of law. None of the actors is quite certain where doctrine will develop from there. The Supreme Court is open to various paths of doctrinal development as long as they are basically in concert with its initial decision. This initial precedent launches a period of learning within the circuits. Lower court judges determine how to apply the precedent to the cases they encounter. Different courts blaze distinct doctrinal paths during the percolation stage. At some point the Supreme Court revisits the issue and intervenes in the process—choosing one of the developing paths and choosing its preferred alternative.

“What Am I? A Potted Plant” Let’s return to the question I deferred previously: How do lower court judges make their decisions? Let’s start by comparing this process to how Supreme Court justices make their decisions. In previous chapters, I argue that the decisions of the justices are a function of their personal policy preferences, their desire to standardize the law, and certain strategic considerations that evolve from the notion of separation of powers. Those same factors are present for lower court judges, but the relative weight of the influences may differ. While the full range of factors influence Supreme Court justices, the dominant determinant is the policy preferences of the individuals on the bench. By contrast, fidelity to the “law” and precedent are seen as the more important factors for lower court judges (Baum 1997; Klein 2002; Hettinger, Lindquist, and Martinek 2006). Like Supreme Court justices, circuit judges tend to vote to reverse lower courts when they disagree on policy grounds. But while ideological factors are very important in their decision making, there are other factors present as well. Some of these factors are institutional, some case significant, some litigant specific. Suffice it to say that decisions cannot be explained by ideology alone. Rather, institutional structures and characteristics within the circuit influence how judges vote (Hettinger and Lindquist 2012, 139–142). The “judicial myth,” that judges put aside their sincere preferences and follow the law, was a dominant theme in trying to define judicial decision making for over a century. This is a normative construct. Rather than explaining how judges make decisions, it was a prescription for how they should make decisions. The attitudinal model effectively stripped away the veneer of the judicial myth for the Supreme Court. But that myth has lingered for lower court judges who are presumed to follow the dictates of the courts above and put aside their policy preferences for the greater good. The quote I used for this section’s heading comes from Richard Posner (1995), a Court of Appeals judge. Posner is a well-respected jurist and scholar whose opinions help set the agenda for the Supreme Court. But

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his colorful nature and controversial views probably cost him a chance at a seat on the Supreme Court.4 In remarking about the idea that judges can consult certain sources and find determinative answers to legal questions, Posner rejects the notion of judges as robots or “potted plants.” Put another way, our friend, Justice Jackson (Gerhart 1958, 289) wrote: When we went to school we were told that we were governed by laws, not men. As a result of that, many people think there is no need to pay any attention to judicial candidates because judges merely apply the law by some mathematical formula and a good judge and a bad judge all apply the same kind of law. The fact is that the most important part of a judge’s work is the exercise of judgment and that the law in a court is never better than the common sense judgment of the judge that is presiding. Judges come to the bench with well-formed political attitudes. Most were active in politics, and indeed, their political ties were instrumental in getting them to the bench in the first place. But they are also imbued with an ethos that urges respect for the law and precedent. It is clear that judges have a great deal of discretion. Many issues are below the radar of the Supreme Court, giving the lower court judges a wide berth. The facts of the individual cases are often different enough from those in the precedent case that the lower court judge has room for interpretation. In addition, lower court judges understand that few of their decisions will be reviewed. Even if judges make every effort to be as faithful to the courts above them as possible, there is still room for interpretation. The general notion is that lower court judges put aside their policy preferences more often than Supreme Court justices. The question is why: What motivates lower court judges? What are the constraints they face that compel them to abide by many Supreme Court decisions, and what opportunities are present for creative decision making? Do lower federal judges really need to worry about the reach of the Supreme Court? The opportunities for judicial creativity and innovation by the Supreme Court are available despite the constraints that are the subject of this study. Lower court judges are assumed to have finite boundaries on their ability to innovate or create law because they face many more constraints. First, they have to abide by the precedents created by the courts above them. Second, few cases provide them with real policy-making opportunities or discretion. Lower court judges are “obligated” to take the cases that are properly before them. Many cases are relatively straightforward or involve norm enforcement, limiting the opportunities for judicial creativity. Finally, appellate court judges make decisions on panels with two or more of their colleagues operating under a norm of consensus, thus constraining their creativity. Howard (1981, 165) referred to constraints on creativity as “burgeoning routine.”

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Judicial activism is reflected in policy-making, which is typically regarded as “legislating from the bench.” Judicial policy making is in conflict with the democratic nature of the United States and the strictures imposed by separation of powers. Many argue that active judicial policymaking has been a response from the courts to the “sluggish” nature of the elected branches (Klein 2002). The issue of the appropriate limits on judicial creativity has been called “the stinking question” by at least one judge (Howard 1981, 160). There is a perpetual tension for the Courts of Appeals over the appropriate level of lawmaking. The discussion of the reaction of the federal judges in the South after Brown may not be typical, but it does demonstrate that judges are not simply robotic in following the Supreme Court’s dictates. In the wake of Brown II, the various factors were aligned against faithful compliance. The precedent was new and supported desegregation, but Brown II left a loophole that permitted a gradual process. While many judges were moderates, most supported segregation and the status quo. Many felt strongly about segregation, which magnified their convictions. The strategic factors also supported recalcitrance. Elected officials also stirred up popular opposition, making public opinion another significant factor militating against following the Supreme Court’s directive. State and local officials did all they could to undermine implementation. Elected officials across the South vowed to ignore the decision. Neither the president nor either house of Congress did much to help the Court. The House and Senate launched Court-curbing measures to harm the institution (Powe 2000). In 1956, 101 senators and representatives from the South signed the Declaration of Constitutional Principles. This socalled “Southern Manifesto” referred to Brown as “an exercise of naked power” and “a clear abuse of judicial authority.” They pledged to use all lawful means to bring about a reversal of the decision that they considered contrary to the Constitution (Wasby, D’Amato, and Metrailer 1977, 167). Against this background, it is not difficult to see how judges could find reasons to evade the edict of Brown. The Brown decision and the resulting relationship between these federal courts raise some familiar issues that were considered previously. The decision was well ahead of public opinion, particularly in the South. The legitimacy of courts at all levels was at stake. The Supreme Court issued a landmark decision. It was lauded in some circles, but in the South there was a virulent backlash. The inability of the District Courts to move segregation even marginally in most of the deep South also harmed the legitimacy of the judiciary (Rosenberg 2008). Brown was not your garden-variety decision or precedent. Although it exposed the court system and did not seem to fit the definition initially, Brown would ultimately become a super precedent. One feature of a super precedent is that it cuts a wide swath through constitutional law, and Brown did that. It would lead to a wide range of other civil rights

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decisions and spawn legislation. But it also became an excuse for a revolution in civil liberties (Pacelle 1991; 2003; Walker 1990). As we saw in Chapter 6 in our discussion of litigants, freedom of speech and defendants’ rights were advanced as a direct means of supporting civil rights. Brown also revealed some of the most intractable problems endemic to the judicial bureaucracy. The two Brown decisions could not have been more different. Brown I set a new moral compass for the country. It was a profound act of judicial activism in every way that we understand the term (Pacelle 2002). The Brown II decision, on the other hand, was a concession to the weaknesses of the judiciary (Peltason 1971; Wasby, D’Amato, and Metrailer 1977). It was an acknowledgement of the judiciary as the least dangerous branch of government. Lower court judges have a great deal of authority and responsibility. They are asked to interpret constitutional and statutory provisions like Supreme Court justices. They are supposed to look to the courts above them for guidance. Courts of Appeals, in particular, are major political institutions involved in norm enforcement as well as policy-making. These judges decide politically sensitive questions that implicate fundamental values (Hettinger, Lindquist, and Martinek 2006, 14). In addition, they have numerous chances to make decisions unimpeded by the Supreme Court and occasionally take those opportunities (Klein 2002, 135). Their decisions are precedent for a large geographic area. Often times, the Supreme Court will not review lower court decisions. Thus the Courts of Appeals are, in effect, mini Supreme Courts that usually have final say on a matter (Songer, Sheehan, and Haire 2000). “Compliance” with a decision entails the proper application of standards enunciated by the Supreme Court in deciding similar cases or related questions of law. By contrast, noncompliance “involves a failure to apply or properly apply those standards” (Tarr 1977, 35). The decision of the lower courts is not strictly a binary one. Judges can follow the extant precedent faithfully or they can evade it. But there are some intermediary responses available as well. They can interpret the precedent narrowly or substitute their own precedent for that of the Supreme Court. They may follow the Supreme Court reluctantly and express their displeasure with some thinly veiled criticism. Or they can find some facts that permit them to “distinguish” their case from the precedent (Benesh and Martinek 2012). With 94 District Courts and over a dozen Courts of Appeals, it is a wonder that the system does not atomize. Paying attention to norms and precedent are centripetal forces. Courts of Appeals judges often know what their colleagues in other circuits are doing. Judges work together with other judges in the circuit creating a maximum of cohesion and a minimum of discord (Howard 1981, 187–189). Thus, there is a team aspect reflected in the shared values among this particular legal community. There tends to be agreement over organizational goals, mission,

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the desire to achieve justice, and broad shared policy values (Klein 2002; Howard 1981; Hettinger, Lindquist, and Martinek 2006). Courts of Appeals operate through random panel rotations. Such rotations have advantages and disadvantages for decision-making and responding to the Supreme Court. There is an inherent tension between uniformity and rotation. Panel rotation constrains integration to a degree, but at the same time it inhibits the formation of blocs and cliques. Rotation can hinder uniformity in the law, but judges are aware of this and so they informally coordinate a little better and seek to keep dissents to a minimum (Klein 2002). On the whole, judges and analysts feel that rotation enhances the legitimacy of circuit decisions. Heavy workloads and routine litigation also inhibit dissents and en bancs (decisions by all the judges in the circuit). Panel rotation pluralizes the circuit and its decisions, while en bancs polarize the judges (Howard 1981). At the same time, en banc decisions can bring stability to doctrine by having the judges of a circuit meeting together to hammer out decisions.5

It’s 3:00 A.M. and No One Is Around How many times have you been sitting at a traffic light in the early hours before dawn? You look left and right and behind you and there is no evidence of any other human life. If you are anything like me, you dutifully wait for the light to change. Sure, the odds are very strong that there is no police officer waiting to pounce. But the cost of a traffic ticket is so high that I am risk-averse even though I am tired. The literature suggests that some behavior surrounding the Supreme Court could be analogous to the lonely driver on the deserted road. The Supreme Court reacts to congressional threats to its jurisdiction, despite the fact that the chance of such measures passing is very remote (Marshall, Curry, and Pacelle 2014). Are lower court judges similarly risk-averse? After all, the odds that the Supreme Court will review the decision of a District Court or Court of Appeals, while far higher than passage of a Court-curbing message, are still rather negligible. Or do other factors stop them from coasting through the metaphorical stop signal? Does opportunity shape their decision making or do the constraints? At a general level, there are a number of similarities between the court system and the federal bureaucracy. The superiors (in this case, the justices of the Supreme Court) have limited capacity to oversee compliance and few sanctions to coerce it (Klein 2002). To be sure, there are centripetal forces that help compliance: subordinates possess strong positive feelings about the legitimacy of the judiciary (Tarr 1977); they have to answer to their colleagues and the people they serve (Howard 1981; Klein 2002); and they want to do the right thing, that is to say, to ensure that justice is meted out (Klein 2002). Brehm and Gates (1997) argue that supervisors have some impact over the lower court judges, but that influence is far less important than that of

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their colleagues and their own preferences. In general, bureaucrats tend to perform their work faithfully and do not shirk or undercut their supervisors’ policies. Judges are similar in that respect (Klein 2002, 135). Why don’t lower court judges follow their own sincere policy preferences more often? First, they may share values either through simple policy preferences or similar senses of justice. But more broadly, these judges appear to share a desire for legal soundness and common standards of evaluating it. Second, even when values conflict, subordinates want to do their jobs well, and this compels them to respect existing policies. Thus, the judges give serious attention to Supreme Court precedents even when they are not entirely applicable (Westerland et al. 2010). These constraints are largely self-imposed. Judges demonstrate high degrees of professionalism, and the canons that guide their behavior compel cohesion within the panels and respect for the rule of law and the Supreme Court (Howard 1981; Klein 2002). Judges strengthen their own reputations by working closely with their colleagues on the bench, adopting good rules, following well-respected judges, and paying attention to precedent. Judges demonstrate loyalty to their own circuit, but they also pay attention to their colleagues in other circuits. Individualism is not an overwhelming force. Legal and policy goals are important to Courts of Appeals judges (Klein 2002). Even the most ardent proponent of the attitudinal model would concede that lower court judges pay attention to the law. Judges will presumably follow the Supreme Court when the direction of doctrine is clear. It is also thought that they will attempt to anticipate where the Supreme Court is leading them. The evidence suggests that circuit court judges act with little regard for what the Supreme Court might think. They also do not react to ideological trends in the composition or the decisions of the Supreme Court. Indeed, there is little evidence that these judges anticipate Supreme Court intervention or display extra cautiousness when review is likely (Klein 2002, 136–143). They do not sit at the stoplight at 3:00 a.m. because of fear but out of respect. This level of professionalism and respect will push lower court judges to follow the Supreme Court. And by most empirical measures, they tend to do so. But judges who are so inclined to exert their sincere policy preferences or have the opportunity to do so because precedent is vague or nonexistent may have some profound effects on the Supreme Court. They also can have an impact through their decisions when the justices look for some assistance from the robes on the ground.

Up the Down Staircase As I have noted in this discussion, important messages are moving up and down the judicial hierarchy. Some of the messages that are climbing the ladder will help the Supreme Court shape its doctrine. The messages that

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emanate from the Supreme Court and flow down are designed to help the lower courts standardize the law and guide their decisions in subsequent cases. The Supreme Court has a number of concerns: the collective policy preferences of the majority are certainly the most important determinative of decision making. Virtually every model in this study shows their relative strength. But those sincere preferences may be tempered by the need to avoid a hostile response from one of the other branches. And in some areas of law, legal concerns may overshadow, or at least reduce, the impact of the Court’s collective policy preferences. In his study of the Supreme Court’s agenda, H. W. Perry (1991) referred to two facets of case screening. Justices would evaluate cases on one of two dimensions: an outcome mode or a jurisprudential mode. In the latter, justices would accept the case because they felt compelled to bridge a gap in the law. The reason to take the case was to help stabilize precedent or settle some lower court conflict. By contrast, the outcome mode speaks directly to the sincere policy preferences of the justices. Members of the Court grant these petitions because the case permits them to pursue their sincere policy goals.6 In working with the lower courts, the Supreme Court is motivated by both legal and policy-related concerns. Justices take some cases not because they care about the substantive issue but because they seek to impose uniformity on the law. They may want to resolve lower court conflicts to ensure that uniformity, but they are also trawling the lower court opinions for some ideas on how to best advance their policy preferences. The realities of the modern judicial hierarchy have inverted the relationship between the higher courts and lower courts to a significant degree. The Supreme Court is less concerned today with insuring compliance by “errant lower courts.” Rather, the process of learning about how the rules are applied in practice has been elevated as a concern. And in this enterprise, the Court can learn from the subordinate courts (Clark and Kastellec 2013). The Supreme Court resolves conflicts on federal questions and exercises supervisory power over lower courts. In doing so, the Supreme Court is no longer involved in error correction but in law creation. The task of error correction has devolved to the Courts of Appeals. The most important function for the Supreme Court is policy-making through novel and important questions of law. Clark and Kastellec (2013, 151) treat the Supreme Court’s monitoring as a learning process in which the justices use the information to garner ideas for their preferred resolution of novel issues (see also Westerland et al. 2010). There are decided limits on the Supreme Court’s ability to monitor the lower courts. The justices cannot possibly monitor all the activities in the lower court, and they have finite agenda resources to spend: they can only accept so many cases. The cases ascending the hierarchy carry a variety of cues and messages and help the Supreme Court shape doctrinal development. Those descending the ladder require interpretation and

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synthesis by the lower courts into the evolving corpus of law. The twoway street that helps define the relationship between the Supreme Court and the courts below is often marked by percolation and lower court conflict. The latter is in the control of the lower courts, while the former is at the discretion of the Supreme Court. The Supreme Court benefits from the presence and proliferation of litigation that permits lower courts to devise various solutions to legal issues. This percolation of litigation allows the legal community to develop a range of alternative solutions to the questions. Supreme Court justices then have a menu of choices to select from in constructing their doctrine (Baird 2007, 6). Lower courts will be exposed to a range of litigants who may propose novel or innovative strategies. This permits those judges to participate in the diachronic construction of doctrine. The multiple decisions as well as dissenting and concurring opinions provide a range of options for the judges and justices (Baird 2007, 168). The Supreme Court can make valuable use of percolation. Periods of percolation provide diverse opinions, which can help the justices make better informed and more enduring final decisions (Clark and Kastellec 2013). One significant benefit is that the percolation of numerous cases enhances the likelihood of producing a well-developed case for the justices (Baird 2007, 62). But percolation does not come without some significant costs. To permit issues to percolate indefinitely in the lower courts undermines the establishment and maintenance of uniform, consistent law. Percolation almost inevitably leads to circuit conflict, which signals the Supreme Court to take a closer look (Baird 2007, 70).7 Lower court conflicts, in turn, harm the uniformity of the law, but at the same time they are not without their own potential benefits. Multiple decisions can provide alternatives and information. In resolving circuit conflicts, lower courts and the Supreme Court are weighing competing legal perspectives. In resolving the disputes, courts demonstrate more concern for jurisprudential considerations than attitudinal goals (Lindquist and Klein 2006). The Court can settle cases quickly or wait for more information from additional courts (Clark and Kastellec 2013). Thus, Clark and Kastellec (2013) argue that the hierarchy that seems to plague the Court may actually be a solution to its problem of creating good law in the face of inherent uncertainty. The Supreme Court can use lower court conflict to evaluate a variety of potential solutions. At the other end of this ladder, the Court is interested in guiding the lower courts. Some of this is a function of its desire to standardize the law. But the Court’s policy preferences also come into play. If the Court is prescribing a certain approach to some salient issue, it hopes to see its preferences penetrate deeply into the hierarchy. Many of the legal questions that lower judges confront are difficult to answer. The statutes and constitutional provisions that are meant to guide the lower courts and implementers are ambiguous and open to numerous plausible

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interpretations. Further, there is no handy guide to being a lower court judge. No universally accepted rules exist for choosing one method or one precedent over another. The law, in the form of directives from above, seldom provides immutable correct answers to legal questions, but judges appear to engage in good faith efforts to find solutions to “vexing legal puzzles” (Lindquist and Klein 2006, 137). Implementers, lower court judges, bureaucrats, and sometimes even the public closely analyze judicial opinions, dissecting their content in an endeavor to understand the doctrinal development in a particular area. As Shapiro (1968, 39) notes, the opinions themselves, not who won or lost, are the crucial form of political behavior by the appellate courts, since it is the opinions which provide the constraining directions to the public and private decision makers who determine the 99 percent of conduct that never reaches the courts. As I noted earlier, I find persuasive the idea that the opinions of the Supreme Court (whether majority, concurring, or dissenting) present a dynamic component of an evolving American political theory. Through its opinions the Supreme Court promulgates rules and tests that act as precedent, constraining the decisions of lower courts and the behavior of implementers or agencies (Corley 2008, 469). These tests and standards serve to guide the calculus of the lower court judges (Kritzer and Richards 2003, 2005; Richards and Kritzer 2002; Pacelle 2009). These tests, which are the bane of college and law students, provide a rough guide to the standards that lower courts should consult as they seek to apply the Supreme Court’s holding to the cases they encounter. Such tests populate the vast expanse of constitutional law. For instance, when the courts deal with questions involving public aid to religion or the use of religious symbols on public property, they are advised to consult the Lemon test. Symbolic speech has the O’Brien test, while commercial speech uses the Central Hudson test.8 Tests have been constructed to determine to what levels of scrutiny laws should be applied when a law might be discriminatory. These tests, of course, lack the precision of a finely honed instrument. Two justices can apply the same test and come to very different results (Kobylka 1989). Maybe more troubling, the tests can be changed or abandoned if a majority decides that they have outlived their usefulness or do not meet their ideological approval. Courts have also set up precedents in cases like Mapp and Miranda and then created exceptions to them. Thus, you need a warrant under Mapp, but there is a good faith exception to those requirements (Pacelle 2004). And someone must be read his/her Miranda rights, but there is a public safety exception (Haynie 2004).

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Issue Framing and Setting the Agenda Studies of the relationship between the Supreme Court and the lower courts overwhelmingly focus on lower court interpretation of, and compliance with, Supreme Court precedent (e.g. Canon and Johnson 1999; Klein 2002; Sanders 1995), ignoring how lower courts help shape Supreme Court precedents (Corley, Collins, and Calvin 2011). Corley, Collins, and Calvin (2011) argue that the lower courts are not merely the Supreme Court’s inferiors, but they have the ability to shape the doctrinal force of federal law. Though the justices have substantial, if not total, control over the content of their opinions, it is clear that the Court does not start with a blank slate. Rather, the language of the Court’s majority opinions is derived from many different sources, and one such source is the opinions of the lower courts that initially disposed of the case. On paper, at least, the Supreme Court is a passive institution. It needs to wait for the appropriate case. Beyond that, the justices often want the right kind of facts in the cases that they accept. The role of litigants in providing the grist for the judicial mill cannot be overstated (although I tried to do that in Chapter 5). The neglected partners in the process are the lower federal and state courts. Very few cases begin at the Supreme Court level (original jurisdiction). The Constitution specifically limits these to unusual circumstances.9 The rest of the Court’s docket is comprised of appeals from lower court cases (appellate jurisdiction). Such cases have typically been through two or three previous levels of the system.10 The Supreme Court has significant discretion over the cases it wishes to accept and combs through the petitions for writs of certiorari on its docket for the cases it wishes to review. The Court has a number of motivations for accepting cases. It may be interested in beginning or continuing the construction of doctrine and policy in a particular area of law and uses cases as the means to achieve that (Pacelle 1991). The Court may be interested in imposing some consistency on the law and thus looks for cases that have generated inconsistent decisions or lower court conflicts (Perry 1991). The Court may also be practicing error correction by reviewing cases in which lower courts have clearly misapplied guidelines. This last function may largely be the vestige of a previous time. Indeed, as Figure 7.1 shows, the Court is issuing fewer signed opinions, even as the number of cases in the lower courts and requests for writs of certiorari climb. The decline over three decades is stunning. With such a sharply circumscribed docket, the Supreme Court no longer has the luxury of error correction (Shapiro 2006; Clark and Kastellec 2013). Rather, its priorities appear to be making policy and settling inconsistencies. In helping to set the Supreme Court’s agenda, lower courts can be purposive and proactive. There are numerous means by which lower courts can influence the Supreme Court. The vehicles of influence include decisions concerning novel issues or cases, circuit conflicts, percolation,

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Figure 7.1 The Decline of the Supreme Court’s Docket: Signed Opinions, 1946– 2013 Source: Epstein, Segal, Spaeth, and Walker (2012).

dropping a note or a cue, sharp or sloppy interpretation, and the lower courts’ own policy initiatives. Some of these factors are under the control of the lower court judges. Perhaps more often, though, the lower court is not seeking to have Supreme Court intervention, it just comes with the territory. As noted, judges may vote on the basis of legal factors, the desire to promulgate good decisions, or because of their policy goals. Given that most decisions are unanimous, it is apparent that judges are swallowing their objections in many cases. To write a separate dissent is to believe strongly in your position and to pursue your personal preferences, but it will signal the Supreme Court that the case needs closer attention (Howard 1981; Perry 1991). Corley, Collins, and Calvin (2011) point to the opinions of the lower courts as providing the opportunity for positive or negative sanctions. They note:

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A lower court opinion that demonstrates a strong grasp on the corpus of federal law might motivate the justices to deny a certiorari petition, shaping the Court’s agenda setting decisions. A well-crafted lower court opinion might induce the justices to affirm the lower court ruling, influencing the ultimate outcome of the case. Conversely, a rogue lower court that steps too far out of line with existing law may motivate the justices to reverse that court’s decision, again influencing a case’s disposition. Just as the Supreme Court might favorably adopt a rule that has been applied in the lower court, a judge below could have a significant negative effect. The Supreme Court might target and criticize a rule adopted by the lower court and explain why it is inapplicable to the extant case. In either instance, the lower court has helped to shape the development of the Supreme Court’s opinion. It is not uncommon for the Supreme Court to borrow language directly from the lower court opinion in constructing its decision and the precedent (Corley, Collins, and Calvin 2011). The opinion of the court can also shape the contours of the case as it moves to the Supreme Court. The losing party, which may be seeking Supreme Court review, will need to address the issues that the Courts of Appeals raised. Thus, the author of the opinion in the lower court shapes the agenda for that particular case. Granting the writ of certiorari means that the records from the lower court are called up. The justices will be responding to those records, most notably the lower court opinion. But as importantly, the lower courts are—practically speaking—themselves highly important “constitutional meaning-makers.” In a period in which the Supreme Court has increasingly underdetermined its constitutional doctrine and takes fewer and fewer cases for review, many constitutional cases are decided by the lower courts. Thus, from a practical perspective, the constitutional law that applies to the vast majority of litigants is driven to a large degree by lower court determinations as to how to fill the interstices of Supreme Court doctrine (Eyer 2013, 199). In discussing the agenda setting and doctrinal construction capabilities of the lower courts, I have focused on the motivations of the judges and how that might structure the work of the Supreme Court. But we can stroll over to Pennsylvania Avenue (after all, it is just 1.81 miles) to discuss the way that the president might get involved in the process for the benefit of his administration. The administration could make aggressive use of the Office of the Solicitor General to pursue its policy goals (and recently, many have). The ability of an administration to pack the lower courts with likeminded judges can also help advance its agenda across the federal system. The expansion of the power of the judiciary and particularly the Supreme Court has attracted the attention of all recent presidents. They have tried to use the Supreme Court to push their agendas. The power of the judiciary transcends the Supreme Court to the lower courts. It was President

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Reagan who made the lower courts a focal point of his policy initiatives. The administration worked hard to pack the lower courts with judges who were sympathetic to its agenda. One benefit was to test-drive judges with an eye to promoting them to Courts of Appeals and the Supreme Court. Control of the lower courts carries a number of other benefits for the administration. First, as noted, most cases end in the lower courts, often giving them the final word. Second, those cases heading for the Supreme Court are shaped in the lower courts. Lawyers sympathetic to the administration could begin to fashion cases with new theories and arguments before conservative federal judges, preparing briefs to move into the appellate courts. According to W. Bradford Reynolds, one of the major architects of the Reagan Administration’s legal strategy, The greatest accomplishment of the Department of Justice and the Administration was the judicial appointments at all levels. There was a real sea change . . . in judicial attitudes beginning in the second term. The appointments explain in large measure how we were able to move the Administration’s agenda. (Pacelle 2003, 146) The clearest sign of the recognition of the power of the lower courts is seen in the enhanced contentiousness of the confirmation process (Steigerwalt 2010). In one respect, it is another manifestation of the increased partisanship that infects the body politic (Abramowitz 2013). But it is much more as well. In addition to shaping cases (as the Reagan Administration tried to do) before they get to the Supreme Court, by omission and commission, lower court judges help set the agenda for the justices. The task for justices in case screening is monumental. Taking 10,000 petitions for writs of certiorari and distilling them down to a hundred cases requires that justices develop some shorthand mechanisms to facilitate the process (Perry 1991; Pacelle 1991). The chief justice has a discuss list (which used to be called a “dead list”) to winnow out some of the petitions. The Court also fashioned a “cert pool” to amortize the work across the chambers of the various justices. Some members of the Court do not subscribe to this service, but most have (Perry 1991). The other instruments of review are shortcuts that convey cues or signals from the individual petitions for certiorari. Some of these cues or signals can be modified periodically as the priorities of the justices change (Tanenhaus, Schick, Muraskin, and Rosen 1963; Ulmer 1972; Teger and Kosinski 1980; Pacelle 1991; Perry 1991). For well over a generation, civil liberties and civil rights cases have been one of the important cues. They merit more consideration than economic cases (Pacelle 1991; 1995). The existence of a circuit conflict or inconsistent rulings from lower courts in similar cases has long been a cue for the Supreme Court (Perry 1991). The justices also give closer scrutiny to cases when there are non-unanimous Courts of Appeals decisions. As noted, most Courts of Appeals decisions

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are unanimous, so the rare cases that are not merit additional attention (Perry 1991). The Court also gives credence to some litigants over others (Tanenhaus, Schick, Muraskin, and Rosen 1963). Some, most notably the Office of the Solicitor General, have earned high levels of respect for their past efforts (Salokar 1992; Pacelle 2003; Black and Owens 2011; 2012). Finally, the justices pay attention to the votes and opinions of wellrespected lower court judges (Perry 1991).

Lower Courts: The Interpreting Population When the Supreme Court makes a decision, it chooses a winner and loser from the litigants involved in the case. That decision may be influenced by the work of the lower courts. But what makes the Supreme Court an important policy-maker (and, well, supreme) is the fact that its decisions are binding precedent on all similar future cases. The Court will presumably apply its precedents when those similar cases reach the decision docket. This is a horizontal authority. But perhaps more importantly, the Court exerts a vertical authority, having its precedents respected and applied by the lower courts who will have to do the heavy lifting in the myriad cases that crowd their dockets (Hettinger, Lindquist, and Martinek 2006). As a result, Canon and Johnson (1999) refer to the lower courts as the “interpreting population.” In that role, these courts are bridges between the Supreme Court and the “implementing population,” the street-level bureaucrats who have to carry out the Court’s pronouncements. When the Supreme Court issues a decision that reviews a Court of Appeals decision, it often remands the case directly back to the lower court to issue a final decision. For instance, when the Supreme Court ruled that the interrogation of Ernesto Miranda violated his rights, it did not free him. Rather, the case was remanded to the Arizona court with the provision that the state could retry Miranda, which it did, but could not use his confession against him. Upon remand, Miranda was found guilty. Thus the lower court will be aware of the Supreme Court’s ruling because it is sent back to them, but even that does not mean the judge will necessarily abide by the directive. For lower court judges in other jurisdictions, applying Supreme Court directives to their different cases can be much more complicated (Pacelle and Baum 1992). The District Court or Court of Appeals may have a case with a particular set of facts that the justices have not decided, but there is some Supreme Court precedent that may control the lower court case or may just be tangentially related. The lower court has to apply the general precedent to the particular case it confronts. Supreme Court decisions are not self-executing. Indeed, the Court faces significant enforcement challenges. The task is complicated by the fact that the Court is involved in virtually every issue, and its often controversial decisions invite a backlash (Benesh and Martinek 2012, 259).

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The Court’s rulings are given effect only through the behavior of other actors, whether they are lower court judges or those ultimately responsible for implementing the directives. The “interpreting population” and the “implementing population” may not be predisposed to accept the Supreme Court’s decision or are leery of a distant set of Platonic Guardians intruding on their prerogatives. The reaction of those actors is not always in concert with the Supreme Court’s designs, as the aftermath of the Brown decision will attest (Baum 2002). In the following section, I examine what the Court can do to induce lower courts to abide by its decision and increase its influence and impact. Studies show that lower courts generally comply with Supreme Court precedents (Benesh and Martinek 2012, 260; Westerland et al. 2010). While we tend to focus on the importance of the lower courts in applying or ignoring the Supreme Court’s directions (or some response in between), the impact of the lower courts stretches further. We can conceive of the policy process (whether in the judicial realm or the other branches) as spanning multiple stages. Litigants approach the courts at the agenda stage. The Court grants some petitions for certiorari while rejecting the vast majority. For those cases that are accepted, the Court formulates alternative resolutions and legitimates the majority’s choice. The majority opinion sets the precedent that has to be implemented throughout the judicial hierarchy. The decision and the policy connected to it resonate throughout the system and yield various impacts. Subsequent rounds of cases are spawned to convey feedback that may necessitate adjustments. The lower courts, as we have seen, can have an impact on each of these stages. Roughly between 350,000 and 400,000 cases are initiated across the 94 District Courts each year. Each of the decisions of those courts can be appealed to one of the 13 Courts of Appeals, but more than 300,000 of those who lost decide not to proceed. In fact, the Courts of Appeals have been averaging about 60,000 cases a year, and that number has declined. Of the 375,000 district cases, the 60,000 Courts of Appeals cases, and the millions that begin in the state courts, about 10,000 will seek Supreme Court review. The Supreme Court disturbs roughly twothirds of the Courts of Appeals decisions it reviews. But we need to put this in context: the High Court grants certiorari and full review to less than 2 percent of the Courts of Appeals cases. This highlights the fact that the lower courts are often effectively courts of last resort for the vast preponderance of cases. Maybe more importantly, in some areas of law the Supreme Court is reluctant to engage in any review, thus leaving the construction of policy to the lower courts (Pacelle 1991). Even in areas of Supreme Court domination and activity, the Courts of Appeals will take leadership on new issues and fill important gaps (Steigerwalt 2010, 15; Klein 2002, 5).

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The Conditions for Faithful Interpretation and Implementation The interpretation and implementation of directives are challenges for any bureaucracy. Lower courts do a reasonably good job of complying with Supreme Court directives, but it is not inevitable. Lower court compliance is likely born of a desire to make the right decisions. The existence of certain conditions can improve the prospects of faithful implementation. Among those conditions are adequate resources, clear communication, the disposition of the implementer, and the bureaucratic structure. The more favorable the conditions, the more likely implementation will be faithful to the directives (Canon and Johnson 1999). For the most part the resources that the Supreme Court can draw upon in encouraging faithful implementation are limited and not tangible. The greatest resource the Court has is its legitimacy. Law school socializes prospective attorneys to respect the law and precedent (Tarr 1977). Lower court judges have a professional obligation to follow the court above them. Most lower court judges dream of a fancier robe and a seat on a higher bench. Being reversed attracts attention, but not the kind lower court judges want (Baum 1978). The District Court judges who were asked to enforce Brown v. Board of Education were socialized to follow the Supreme Court. But they were also products of a local environment that considered the decision an anathema. Elected officials and school boards were resistant to change and provided support for judges who would ignore the Supreme Court. On the broadest level, it appears that the resources that could have supported faithful implementation were a woefully inadequate match for the scope of the problem (Horowitz 1977). In light of these disparities, it was remarkable that some judges were able or willing to buck the considerable odds and make a good faith attempt to desegregate the schools. Only later when Congress and the president joined the fray and education funds were at stake were the resources finally commensurate with the scope of the challenge (Wasby 1970; Rosenberg 2008). One substantial problem for the Supreme Court is the adequate communication of precedents and directives. Adequate communication can reduce the discretion and freedom of the lower court judge (Canon and Johnson 1999). A case that is directly remanded will be communicated, but that is not assured when different lower courts are asked to apply previous Supreme Court decisions to new situations (Pacelle and Baum 1992). Lower courts may be unaware of relevant Supreme Court precedents. The Court does not take extraordinary measures to communicate its decisions. Rather, the lower court judge depends on the attorneys to raise the issues and reference the appropriate precedents. The adversarial system of justice encourages the attorneys to marshal the arguments that

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are most favorable to their position (though Baum (2013) considers this potentially problematic). Communication in the case of Brown can be seen on two levels. Clearly, everyone affected knew about the decision. The original decision was front-page headlines in every newspaper. Ignorance of the law would be no excuse. On the other hand, the standard “all deliberate speed” was seen as a vague invitation to delay enforcement of the desegregation directive. Ultimately, the Court backed Brown with a number of unanimous decisions and ruled that the time for all deliberate speed had passed (Patterson 2001; Landsberg 1997). The most important factor for lower court judges is also the most dominant one for their counterparts on the Supreme Court—their sincere policy preferences, which the literature refers to as the “disposition of the implementers” (Klein 2002, 134). David Klein (2002) argues that in addition to fulfilling their sincere policy preferences, the goals of lower court judges include helping impose consistency on the law and promoting legally sound decisions. And they will have more opportunities to fulfill the more legalistic goals than their policy goals. Stated simply, if the case falls within the zone of indifference of the lower court judge, he/she will follow the Supreme Court precedent (Baum 1978). Most cases at the District Court level and a significant percentage of Courts of Appeals cases are relatively minor (except to the two parties in the dispute) and involve norm enforcement rather than policy-making (Benesh and Martinek 2012). The strongest attraction may come from ideological comparability (Baum 1976; Reddick and Benesh 2000). Judges are certain to faithfully apply precedents that reflect their personal preferences. Judges on these lower courts have a good idea of whether a case on their dockets will attract Supreme Court attention and would be well advised to do their homework on such cases, removing some of the concerns with faulty communication. For many lower court judges in the border states, antipathy toward Brown was not determinative of their decisions. Most made a concerted effort to see desegregation advance. Some may have supported it as part of their sincere preferences. Others decided that legal factors and compliance would override their preferences (Peltason 1971). The sincere policy preferences were likely the most important determinant of the stances of the lower court judges in the deep South in the wake of Brown. A decision like Brown would not fall into any judge’s zone of indifference. Most southern judges were moderates but opponents of desegregation. They reflected local opinion. These judges had to know that they were being monitored by the Supreme Court. The Court’s efforts initially seemed to be ambivalent. The justices were committed to giving the lower court judges sufficient time, so they did not micromanage at the outset. The Court would intervene later as dilatory tactics became the rule. Regardless of the reaction, lower court judges had to know big brother was watching. Subsequent unanimous decisions showed the Court to be unwavering in communicating its resolve (Wasby 1995; Patterson 2001).

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Judges may misinterpret a Supreme Court precedent in good faith. They may not be able to forecast where the Court’s doctrine is going. If the case is a simple reiteration of a previous case with almost identical facts, the lower court is certainly disposed to follow the precedent. But Supreme Court opinions do not often necessitate certain outcomes; rather, they enumerate relevant factors to be considered and indicate how those factors should be weighed. Judges may willingly disregard the Supreme Court if they feel very strongly about an issue and disagree with the precedent from above. In addition, as noted, judges have mechanisms to get the attention of the Supreme Court. The vast majority of cases emerging from Courts of Appeals are decided unanimously. As a consequence a divided court, whether en banc or a 2-1 decision, will attract attention from the justices. Writing a separate opinion breaks down the collegiality that is typical of an appellate court. Why would a judge do this when it is certain to invite attention? The judge may be trying to force an en banc decision or attract the attention of those with a similar ideological bent on the Supreme Court (Hettinger, Lindquist, and Martinek 2006, 26–27). The final element is the bureaucratic structure, and it suggests that faithful interpretation and implementation should be the exception rather than the rule (Baum 1978, 1980). In the ideal world a supervisor has about a dozen subordinates. Indeed, the Supreme Court does monitor 11 regional circuits, the federal circuit, and the District of Columbia circuit. But those 13 circuit courts are in addition to 50 state supreme courts, the District Courts, and a variety of specialized courts (like the Article I courts). The task of monitoring such a far-flung empire is virtually impossible. The Court can respond by paying attention to certain trouble spots. The Warren Court was particularly vigilant when it came to the Fifth Circuit in the South (Barrow and Walker 1988). Similarly, the late Burger and Rehnquist Court paid particularly close attention to the liberal Ninth Circuit (Wasby 2005). The typical elements or conditions that should enhance or slow faithful interpretation and implementation of directives were present in Brown v. Board of Education. The Supreme Court knew it could not supervise the schools on its own. The decision to turn the supervision over to the lower courts was fraught with problems. The normal structural difficulties endemic to the judicial bureaucracy were mitigated to some degree. The visibility of the decision and the vigilance of the repeat player groups interested in civil rights eased some of the traditional constraints. The lower courts knew of Brown and were cognizant of the fact that the Supreme Court was watching events. There were batteries of lawyers from the NAACP ready to go to the Courts of Appeals and the Supreme Court if the school boards were dragging their feet (Greenberg 1994). But in the end, the sincere preferences of the lower court judges were stronger influences than those that might have compelled or at least facilitated faithful implementation of desegregation.

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A few words about the state courts are in order. Take the factors that influence interpretation and implementation and magnify the difficulties exponentially, and that reflects the task for the U.S. Supreme Court in monitoring the state courts. State courts come in a variety of shapes, sizes, and flavors. The quality of state judges has considerably more variance than that of their federal counterparts. The modes of selection of state judges range from nomination by the governor or state legislature to partisan and nonpartisan elections, as well as various merit plans. State courts are less attentive to the Supreme Court. Rather, their attentiveness tends to be to local conditions, especially if they are elected. State court judges typically find themselves pressured by local constituents and frustrated by Supreme Court precedent (Benesh and Martinek 2012, 271). The resources of sanctions like reversal are less effective. The most effective implicit resource is socialization. All trained lawyers and judges undergo some of this in law school and private and public practice. But not being part of the federal system strains some of the ties that a lower federal court judge might feel. Federal judges are in the orbit of the Supreme Court for all cases, but most state judges will have few interactions with the High Court. Communications would be further complicated by the crossover from the federal to the state system. The state court that made the original decision would certainly see the decision when it was remanded. But would other states be aware of the decision and the precedent, and would it be applicable? National repeat players may not be able to litigate aggressively or defensively across the map, reducing the Supreme Court’s ability to monitor the wide terrain (Brace, Yates, and Boyea 2012). That said it is important to note that states have done a great deal in the past decade to professionalize their litigation efforts (Miller 2009). States communicate with each other before and after cases. States in individual cases may seek the assistance of other states through amicus briefs. They also keep in touch on trends in Supreme Court doctrine regarding their interests (Waltenburg and Swinford 1999; Newsom 2013). The disposition of implementers, more specifically known as the personal policy preferences of the judges, is also likely to be problematic. Judges will faithfully apply precedents they agree with as well as those they are largely indifferent to. The kinds of cases that emerge from state courts and are accepted by the Supreme Court are important to states and unlikely to fall into the zone of indifference. There is a confounding factor as well—many state judges are elected. In a choice between following the Supreme Court or local public opinion, the latter may win if the judge hopes to keep his/her seat on the bench (Caldarone, Canes-Wrone, and Clark 2009; Brace and Hall 1997; Huber and Gordon 2004; Gibson and Caldeira 2012; Bonneau and Hall 2009). Finally, if the federal court system is a bureaucratic nightmare for the Supreme Court in supervising District Courts and Courts of Appeals,

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extend it to 50 state court systems. The Supreme Court is going to have to rely on the state supreme courts to police their own neighborhoods. Use of the state courts was a means of evading the long and (in their view) intrusive reach of the federal courts. During the Warren Court, most state courts were positioned to the right of the Supreme Court (Tarr and Porter 1988). But interestingly, as the Supreme Court tacked increasingly to the right, liberal justices like William Brennan (1977) urged litigants to press their claims in the states under the aegis of state constitutions (Eisler 1993; Stern and Wermeil 2010).11 But clearly either use of the state courts was instrumental and an attempted means of avoiding federal courts by inviting instability in the law.

Holding the Line Analysts have identified some other factors that can contribute to compliance and overcome the forces like sincere policy preferences that might push the judge toward resisting the directives from above. Organizational inertia might work to keep a consistency in the law (Baum 2002). Judges are socialized in law school and via their experience on the bench into a legal culture that regards Supreme Court decisions as defining the meaning of the Constitution, and as a result precedent requires deference (Tarr 1977). They have pride and exhibit professionalism in their work (Howard 1981; Klein 2002) and that is reflected in a desire to avoid reversal (Baum 1978). It is also in their self-interest to preserve the integrity of the rule of law and enhance respect for the courts (Baum 1976; Carminker 1994). There is a less tangible but real force that may hold them as well. The strongest resource the Court possesses is its legitimacy. The Court is typically highly regarded by the public. At the broadest level, the Court is the physical embodiment of the law, and Americans value the law (Gibson 2007). Clark (2011) argues that the Court maintains its legitimacy by being above politics and wrapping itself in the cloak of the law. The Court does not often find itself involved in the open political debate that can hamstring Congress (Hibbing and Theiss-Morse 2002). And as the robed lawgivers in the Marble Palace, the Court is awash in symbols (Perry 1994; Gibson and Caldeira 2009). As Sara Benesh (2002) notes: “The impetus to comply comes from what the Supreme Court is rather than what it does.” The principle of stare decisis is marked by slow, incremental change. It stands for the virtues of continuity and stability in the law (Benesh and Martinek 2012, 272). Lower courts should be faithful in their application of the law as interpreted by the Supreme Court. For stare decisis to be a robust legal principle, lower courts must be compliant. If lower courts are not obedient, then the meaning of the Constitution will vary from one jurisdiction to another. In addition, the Supreme Court as a governing institution

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is only as powerful as its ability to induce compliance with its decisions. If its own judicial agents will not follow the directives, what influence can it hope to have beyond the interpreting population? Noncompliance will certainly undermine the legitimacy of the Supreme Court, and it would likely spread through the rest of the judicial hierarchy. Indirectly, lower court judges would be undermining their own institutions. In Chapter 1, I discussed the “golden rule of precedent”—do unto others’ precedents as you would have them do unto yours. Well, a corollary principle holds here. If you are a judge, your decisions depend on the legitimacy of your institution. If lower court judges undermine the rule of law and their superiors by picking and choosing which precedents are legitimate, they risk undermining their own institutional platform. And if one needs to look externally for validation of this point, consider Congress. Individual members of Congress run against the institution and weaken it in the public eye (and a 9 percent approval rating is persuasive evidence of that phenomenon), and the institution suffers as a consequence (Fenno 1975). Congress is unable (and perhaps unwilling) to step to the fore when collective action is needed. And it seems impossible to put Humpty Dumpty back together again. Legitimacy, while seemingly abstract, is quite real and has the potential to constrain powerful institutional actors. Throughout this book, we have seen that legitimacy is a mechanism for inducing respect and support from the other branches or compliance from implementers or the lower courts. The Court’s power rests on its authority to make decisions, and its legitimacy appears to be a compelling force. The Supreme Court is seen as an authoritative policy-maker, especially among lower court judges. Inter-branch relations are influenced and shaped by legitimacy questions. The Court’s apparent overreaction to threats shows us how valuable the justices view this finite resource. According to Clark (2011), the Court uses congressional action as a signal that it is risking its legitimacy. To change perspectives and look at this from the bottom of the hierarchy, the need to protect legitimacy remains a significant force. Lindquist and Klein (2006, 135) note: One of the Court’s most important claims to legitimacy is that proposition that its decisions are not determined solely by their justices’ personal policy preferences but are influenced as well by their understandings of what “the law” requires in a given case. For lower court judges the law matters, and “it matters dearly.”

Lead, Follow, or Get Out of the Way The decision-making model in this chapter has a slightly different emphasis. The model compares the impact of the attitudinal, strategic, and legal variables on constitutional civil rights and statutory economic decisions.

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The hypothesis is that the attitudinal variable will dominate civil liberties and civil rights decisions, while legal and perhaps strategic variables will come to the fore in the economic cases. This begs the question of what this has to do with a chapter on the lower courts. In effect, I am pretending that lower court judges are the audience. The models will show the relative impacts so that a lower court judge would know what influences the Supreme Court in each issue domain. In theory, lower court judges who understand the dynamics of decision making above are better positioned to make their own decisions. Table 7.1 compares the influence of the various factors (including on point precedents) in the two areas. The table and a more elaborate explanation of the results are found in Appendix 7 at the end of this chapter. The constitutional civil liberties and rights issues are salient but difficult to overrule due to the extraordinary majorities. Thus, the Court has few constraints on its exercise of decision making. By contrast, the economic cases are based on statutes, thus they can easily be overruled. In addition, they are less salient to the justices. The constraints on the Court should be more significant, and the results of the analysis largely substantiate those expectations. In the constitutional civil rights and individual liberties cases, decisions are influenced by the ideology of the Court, the policy position of the president, issue evolution, and on point precedents (which do not occur that often). The attitudinal variable clearly exerts the most influence. The impact of the president is probably a combination of the nomination process and his use of the solicitor general, who is more aggressive in civil rights and individual liberties than any other issue area. The pattern of influence is much different in the statutory economic cases. Each variable has a statistically significant influence on the Court’s decision-making. A closer look is revealing. The impact of the ideology of the Court on economic cases is marginal compared to rights and liberties. The elected branches (strategic variables) also have an impact on decision making. The most important factor, however, was the influence of precedent. Statutory economic cases involve the full range of constraints for the Court. There are a myriad of potential influences. Because the issues are less salient, the Court is willing to sacrifice its sincere policy preferences. The need to standardize the law is more important, hence the need to attend to precedent. If the civil rights and civil liberties cases suggest a principal-agent relationship, the economic cases reflect the team theory. The lower courts in conjunction with the Supreme Court are working together to stabilize the law. Of course, these cases likely have less salience to the lower court judges. As noted earlier, when cases fall into judges’ zone of indifference, they are less likely to try to shirk or depart from the directives of the superiors. Judges earn credit they can spend later when the occasional case arises that does not fall in to their zones of indifference.

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Conclusion Decision-making on the U.S. Supreme Court is the product of opportunities and constraints. The justices have the opportunity to base their decisions on their sincere preferences, under some circumstances. We consider the president, Congress, public opinion, and precedent as constraints on the ability of the Court to unilaterally plot its policy maps. But it is important to remember that if precedent is congruent with the ideological direction of the Court, precedent can become an opportunity. Similarly, if the president and Congress are aligned with the Court, the justices have the freedom to follow their sincere preferences without fear of retaliation. The lower courts also constrain and assist the Supreme Court. In constructing solutions to emerging legal quandaries, the federal courts provide blueprints that the Supreme Court may utilize. But as the decisions get sent out to the hinterlands of the federal judiciary, the constraints emerge. Will the directives of the Supreme Court be applied faithfully? Can the Court improve the odds that its messages will be received and honored? Lower court judges face a battery of constraints in making their decisions. In one of the best explanations for how judges navigate such constraints, James Gibson (1983, 9) wrote that: “judges’ decisions are a function of what they prefer to do, tempered by what they think they ought to do, but constrained by what they perceive as feasible to do.” Justices of the Supreme Court have greater leeway to do what they prefer, but the message of the preceding six chapters has been that they are not unconstrained. Lower court judges have fewer opportunities to do what they prefer. Studies of lower court judges show that they take their “legal” responsibilities seriously. They make a sincere effort to follow the courts above them, whether as an agent attempting to be faithful or as part of a team dedicated to finding the “correct” solutions to vexing legal questions. As Justice John Paul Stevens, in his dissent from the majority opinion in Bush v. Gore (531 U.S. 98 at 128–129), wrote: “It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law.” The Supreme Court formally sits at the apex of the judicial pyramid, with the lower courts typically viewed as subordinate, inferior entities charged with faithfully enacting the Supreme Court’s policies. It is seldom that neat, however. Instead, some conceptualize the Supreme Court as a principal directing (or attempting to direct) its agents, the lower courts (Benesh 2002; George and Yoon 2003; Songer, Segal, and Cameron 1994; Westerland et al. 2010). The existing literature analyzing the interaction between the Supreme Court and lower courts overwhelmingly focuses on lower court interpretation of, and compliance with, Supreme Court precedent (e.g., Canon and Johnson 1999; Klein 2002; Sanders 1995). That focus neglects some important contributions. Lower federal courts

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are often the adjudicators of last resort in federal constitutional cases. They are an important, if sometimes overlooked, part of the network of doctrinal construction. As participants in the popular constitutional dialogue, as well as receptive sites for the infiltration of popular constitutional understandings, the lower federal courts should be considered in any account of constitutional change (Eyer 2013, 218). This could reflect the principal-agent model or be consistent with the notion of the courts as part of a larger team with similar goals. The process of building doctrine is time-consuming but informed by many visions. The action of the Supreme Court is followed by lower court responsiveness, coupled with delegated lower court learning and experimentation, followed by Supreme Court selection and the imposition of a doctrinal extension emerging from experimentation. The principal and a group of ideologically motivated agents engage in dialogue as they attempt to build doctrine in the face of uncertainty (Westerland et al. 2010). The process has important implications for strategic litigation and political control of the judiciary. Legal change takes place in various circuits unfolding at different paces with occasional divergent paths of doctrinal development. Some circuits may be more receptive to these arguments, creating a strong incentive for strategic forum shopping by litigants. The process also underscores the importance of appointments to the Supreme Courts and lower courts. If a president is successful in appointing likeminded judges, the path of lower court doctrine will track the changes in the composition of the Court (Westerland et al. 2010). Superior judges, whether justices or Courts of Appeals judges, have few formal tools to wield to compel compliance. Westerland et al. (2010, 894) have a colorful inventory of the devices the superior courts utilize “to extract conformity” from their agents, including “strategic auditing by the High Court, whistleblowing by allies within a lower court panel of judges, implicit tournaments among lower courts, and en banc review of panels by lower courts.” Monitoring or strategic auditing depends on fire alarms by litigants through strategic appeals (Cameron, Segal, and Songer 2000) or amicus curiae briefs (Collins 2008). The “tournaments” are represented by lower court conflicts when judges in different circuits advance competing theories in their decisions. The judicial whistleblowing comes from lower court judges in the form of dissents (Kastellec 2007; Cross and Tiller 1998) or through the process of case selection through the “rule of four” (Perry 1991; Baird 2007). The Courts of Appeals face a very difficult task, and by all accounts do their best to manage it. In Chapter 1, I used the back end of an original quote from Justice Jackson. The entire quote is relevant to this discussion: Reversal by a higher court is not proof that justice is thereby better done. There is no doubt that if there were a super–Supreme Court,

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a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final. (Brown v. Allen 344 U.S. 443 at 540 (1953)) The decline in the Supreme Court’s review of cases has created a practical dilemma for the Courts of Appeals. They have to balance the enhanced policy-making that accompanies their role as the final arbiter of federal law with the increased demands to monitor the decisions of the district courts. The result has sowed the seeds of more potential inconsistency. The increased workload has diminished the capacity of the circuit courts to oversee the District Courts. En banc rehearings are the best means of maintaining the consistency over the overall body of law. Pulling the stable of judges together provides the opportunity to navigate the course of law in response to changing circuit preferences. En bancs can be a weapon that the ideological majority of the circuit can use to change precedents it disagrees with. But the growth of dockets and responsibilities has limited the ability of the circuits to convene en bancs. Rather, the proliferation of oral arguments before rotating panels and the decline of unifying en bancs have created more chances for inconsistency in the circuit. It appears that in balancing its demands, Courts of Appeals seem to opt for management of their dockets over maintenance of panel oversight. Given their position in the judicial hierarchy, Courts of Appeals are expected to follow precedent when they can and help build consistency in the law. It is an ideal that is not easily achieved in the real world. In numerous studies, appellate judges talked about following stare decisis but also about doing justice. Richard Lempert referred to stare decisis as an open norm that cannot specify exact results in a subsequent case (see Howard 1981, 166). Lower court judges must apply existing tests and precedents to specific cases with different factual situations from their jurisdictions. They have to impose equilibrium on the law while all about them is moving. Their decision making is played out against a background of changing judicial philosophies, emerging doctrinal development, shifting patterns of behavior among the elected branches, and dynamic litigant strategies.

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Appendix to Chapter 7

I have alluded to the differences between civil liberties and civil rights on the one hand and economic cases on the other. When it comes to civil rights and individual liberties, the Supreme Court is the primary actor and makes no apologies for its status (Pacelle 1991; 1995). On the other hand, in economics cases, the Court shares the policy-making stage with Congress and the president. The Supreme Court would prefer to cede the responsibility for the economic cases to the lower courts (Pacelle 1991; Hendershot, Hurwitz, Lanier, and Pacelle 2013). In Table 7.1, I compare models for constitutional civil rights and civil liberties (Model 1) and statutory economic cases (Model 2) to examine the view from the lower courts. In civil rights and individual liberties, the expectation is that the attitudinal variables will be the strongest factor and the legal variables will exert less influence. By contrast, in the economic cases, the legal variables should be the most influential. The strategic variables should also be stronger in the economic cases, as the Court is more likely to defer to the elected branches. After I examine the results, I will discuss the implications for the messages a lower court might infer about these two issue domains. In these two models, I am using the same variables for each subset of cases. I am adding the on point precedents variable (which I used in Chapter 3 also; see Table 3.2 in Appendix 3). Let’s start with the context for the civil rights and individual liberties cases. The strongest impact comes from the attitudinal variable, the ideology of the Court. A change of one standard deviation in the ideology of the Court will enhance the probability of a decision in that direction by .11. These are the cases the justices care about the most; they are the litmus test issues for presidents when they nominate justices (and recently, solicitors general) and the dominant concerns for the modern Supreme Court. The variable for the ideology of the president also has a strong impact on the Court’s decisions. As the ideological position of the president moves one standard deviation in a liberal direction, there is a .05 increase in the probability of a pro-civil rights and individual liberties decision. This is roughly half the effect of the Supreme Court but consequential nonetheless. This underlines that these issues are critically important to presidents. They

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Table 7.1 The Influence of Attitudinal, Strategic, and Legal Factors in Constitutional Civil Liberties and Statutory Economic Cases Model 1 Constitutional Civil Liberties Cases

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Independent Variable Supreme Court Ideology Presidential Ideology House Ideology Senate Ideology Precedent On Point Precedent Issue Evolution Public Mood Constant

Θ (S.E.) 3.13** (.52) .35* (.15) .16 (.52) –.43 (.98) .09 (.07) .99** (.12) –.50** (.10) .03* (.01) –.55 (.86) LL = –981.50 χ2 = 281.70 P < .0000 N = 1620

Δ Prob. Liberal Decision .11 .05 .00 –.01 .04 .24 –.12 .03 —

Model 2 Statutory Economic Cases Θ (S.E.) 1.09* (.50) .29* (.15) .86* (.43) –3.10** (.95) .88** (.06) 1.37* (.44) –.33** (.08) .04** (.01) –1.06 (.80)

Δ Prob. Liberal Decision .05 .03 .04 –.03 .41 .16 –.06 .04 —

LL = –1005.79 χ2 =356.11 P < .0000 N = 1733

Note: (*) = p ≤ .05, and (**) = p ≤ .01. These models were estimated with logit regression using Stata 12.1. Standard errors in parentheses are robust. The probabilities were generated with Clarify. Simulated probabilities are calculated from 0 to 1 for dummy variables and from the mean plus one standard deviation for continuous variables. The predicted probability for Precedent represents the difference between the probability of a liberal decision when the Court confronts a liberal precedent versus when the standard for the present case is a conservative precedent.

are central to their social agendas, and they hope to use the solicitor general and their appointment power at all levels of the judiciary to impress their philosophy on the law. By contrast, the presidents’ institutional rivals in the legislative branch do not have any influence on the Court’s decision-making in civil rights and individual liberties. This is not surprising. Congress is an institution that is not constructed to protect liberties. Indeed, as we saw in

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Chapter 5, one of the main reasons that groups used the judiciary was because the elected branches were inappropriate for the protection of liberties or simply not supportive. Public opinion (the mood variable) does have a positive impact on the Court’s decision-making in civil liberties and civil rights, despite the anti-majoritarian nature of these issues. The fact that the Court’s decisions reflect public opinion rather than standing against it may suggest that the Court’s decisions in these areas are not overly protective of rights and liberties. Issue evolution plays a significant role in influencing the decisions. As cases get more difficult, the probability of a favorable civil rights or procivil liberties decision declines. The impact of the change of one stage in difficulty reduces the probability of a favorable civil rights decision by .12. The impact of precedent is a bit more complicated. There are two precedent variables, and the on point variable crowds out the effects of the overall precedent variable. Thus, the Court is most attendant to precedent when it is a companion case or the facts are virtually identical to a previous case (and that does not occur in many cases). The justices do not feel the need to adhere to the law as closely in civil liberties. In Payne v. Tennessee (501 U.S. 808 at 827, 1991), Chief Justice Rehnquist wrote: This Court has never felt constrained to follow precedent when governing decisions are unworkable or badly reasoned. . . . particularly in constitutional cases, where correction through legislative action is practically impossible . . . Considerations in favor of stare decisis are at their acme in cases involving property and contract rights, where reliance interests are involved; the opposite is true in cases such as the present one involving procedural and evidentiary rules.12 So what message would these results have for lower court judges? Lower courts should try to anticipate where the Supreme Court is going. The justices will be paying attention to these issues because they are salient. Precedent is not a critical variable because the cases are fact-intensive. The courts do not have to concern themselves with Congress (unless the House and Senate resort to more nuclear options). The president will be active and will use the Department of Justice and the OSG to monitor these cases. Lower court judges will probably have a vested interest in these cases as well, and a desire to pursue their sincere preferences. The principal-agent model is probably the best reflection of the relationship in civil rights and individual liberties. Lower court justices care about these issues and will occasionally shirk, but they can be assured that litigants and the Court will be monitoring. Let’s walk across the length and breadth of the spectrum to the statutory economic cases. The results could not be more different. Each of the variables has a statistically significant impact on the Supreme Court’s decision. The impact of the Court’s ideology is as expected, but

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significantly less than in the civil liberties cases (.05 as opposed to the .11 noted earlier). The president and Congress influence decision-making as well (although the Senate variable is significant in the wrong direction). Indeed, the influence of the other branches is on a par with that of the Court. Public opinion also has a modest but statistically significant impact on the Court’s decision-making in economic cases. This is consistent with the findings of Casillas, Enns, and Wohlfarth (2011) that public opinion is especially influential in nonsalient cases. The key element for the lower court to concentrate on is the impact of precedent. It is the strongest factor, and it even goes beyond the impact of the on point precedents. The magnitude of the impact is almost unprecedented (pardon the pun) in this study. If the Court is weighing a liberal (conservative) precedent, the probability of a liberal (conservative) decision increases by .41. Issue evolution is also statistically significant. As the facts in the cases get more difficult, the probability of a liberal decision declines. It is important to note that the degree of the impact is just half what it was in the civil liberties cases (a decline of .06 in the probability of a liberal decision as opposed to a .12 decline in the civil rights and individual liberties cases). The take-away message for the lower courts is to pay close attention to precedent. The area is full of constraints, with influence emerging from all three branches and from the law. The real authority in these issues lies in precedent and the lower courts. The Supreme Court has delegated authority to the lower courts on these issues (Pacelle 1991). The Court monitors its subordinates by looking for circuit conflicts and resolving those. In doing so, the Court limits its review to the single question that caused the conflict. A large proportion of the decisions are unanimous despite the ideological polarization of the Court’s membership (Pacelle 1991).

Notes 1. Alas, while Janus had two children, Tiberius and Fontus, neither was twofaced, at least physically. Sadly, there is no Greek counterpart to Janus either. 2. By executive order, Carter established Nominating Commissions for District Courts and Courts of Appeals in an attempt to exert more control over the process. Senators were included as members on these panels, but some of the senators did not take too kindly to the new procedure. As Senator John Stennis reportedly said, “In the state of Mississippi, I am the nominating commission.” 3. It is not uncommon to put a “hold” on a nomination, often to serve some other legislative or political purpose. But presidents are having an increasingly difficult time getting their nominees confirmed (Steigerwalt 2010). This may encourage them to nominate more moderate candidates. 4. For instance, and maybe most notably, Posner (Landes and Posner 1978) wrote an article defending laws allowing a free market approach to the adoption of babies. A Republican president who might have had Posner on a short list could probably imagine Senate confirmation hearings with Democrats reading passages from the article for public consumption.

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5. Occasionally, litigants will request, or a three-judge panel may ask for, an en banc decision by all the judges in that circuit to resolve a particularly difficult question. Such en banc decisions come in important cases, so they attract Supreme Court attention. The Hustler v. Falwell case that I used to open Chapter 5 was decided en banc. 6. Pacelle (1991) looks at the Court from an institutional perspective but comes to a similar conclusion, arguing that the Court has a volitional agenda for its policy goals and an exigent agenda for those issues that need to be resolved because of more legalistic concerns. 7. Clark and Kastellec (2013) argue that about half the time, the Court intervenes as soon as the conflict is evident. But in the other half of the cases, the Court waits for further percolation. This seems to be situational. Pacelle (1991) found that the Court lets the circuit conflicts spread out to multiple circuits before intervening in economic issues. By contrast, the Court would respond more quickly when the issue involved civil rights or individual liberties. 8. The O’Brien test is a product of United States v. O’Brien (1968). The Central Hudson test is the result of Central Gas & Electric Corp. v. Public Service Commission (1980) 9. The Constitution specifies cases involving ambassadors, ministers, and foreign dignitaries as well as state versus state disputes. 10. Some small percentage of cases, typically ones involving major constitutional questions, arrives as writs of appeal straight from federal district courts. 11. Brennan was reacting in part to the efforts of the Reagan Administration to populate the lower federal courts with conservative jurists. He carried on a debate with Attorney General Ed Meese (1985) over the proper venue for cases and what philosophies should govern decisions. 12. A number of justices have made this very point in their opinions. Rehnquist reiterated the distinction between the impact of stare decisis on constitutional and statutory cases in Seminole Tribe of Florida v. Florida (1996). Even Sandra Day O’Connor, who made stare decisis the centerpiece of the joint opinion in Planned Parenthood v. Casey, stressed this point in her dissent in City of Boerne v. Flores (1997).

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8

Conclusion

The Supreme Court has become a major policy maker. The Court made policy from its first decision even when it wore the accurate moniker, “the least dangerous branch.” But as the central government increasingly grew in power and authority, its branches had a concomitant growth of power. Congress was institutionally unable to sustain its collective responsibilities, enhancing the power of the president and the Court who willingly stepped into the breach, so the stakes became enormous. When the Court had the power and the willingness to exercise it, the desire to monitor and check its policy gambols became more imperative. The constitutional independence of the Court was predicated on a passive, limited judiciary that filled in the gaps rather than an activist policy leader. The modern Supreme Court is a policy maker that is actively engaged in virtually every area of law, but it is actually the dominant leader in the subset issues that involve individual liberties and civil rights. Because justices are unelected and have lifetime tenure, it becomes incumbent to have some checks. Either the Court could sacrifice its own powers or countervailing forces can develop to create some boundaries. This book suggests a combination of the two, neither of which is quite strong enough, but in combination serve as some brakes and some barriers. In the last chapter, we examined the relationship between the lower courts and the Supreme Court. I used the aftermath of Brown v. Board of Education to provide the context for the analysis. Recall that policy doctrine in Brown is the result of two cases. The two Brown decisions represent the end points of the spectrum of judicial decision making. The Brown I decision, which is celebrated for its moral compass, was an exercise in judicial activism. In Brown, the court ruled that separate but equal had no place in public education. It established an imperative for the expansion of civil rights and equal protection. I consider the case to be the one to launch the modern Supreme Court. In its decision, the Court was willing to take on a political establishment that was not ready for such a bold step. The Court was well ahead of public opinion. The Court was willing to ignore the typical constraints on its power. The Court viewed the decision as worth the risk to its legitimacy.

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Contrast that with the Court’s decision in Brown II: the Court struck a more circumspect tone in trying to provide guidance for executing the decision. The Court’s implementation decision was a full concession to the constraints on judicial power. The Court was cognizant of the elected branches, the lower courts, and public opinion. Concern for its legitimacy motivated the Court to construct a forgiving implementation standard. The Court navigated very carefully to ensure that its directives were respected. The Brown II decision reflected a classical example of judicial restraint. It was a Court leery of its boundaries and conscious that a failure would have long-term consequences. Most cases, of course, are not Brown v. Board of Education, but similar constraints and opportunities are frequently present. So if you are a fan of Homer or Greek mythology, you probably compare the constraints facing the Court to the problem of navigating between Scylla and Charybdis. If you are not familiar with that allusion, think of the Court as being between a rock and a hard place. Scylla is the rocky shoal of a coast, while Charybdis was a whirlpool or vortex.1 To avoid Scylla, one expands the risk of falling prey to Charybdis and vice versa. If we take a little poetic license and compare Scylla to the political forces that could influence the Court and Charybdis to the legal forces, we see the constraints on the Court. The Court could be caught in the whirlpool of past precedents that do not permit doctrine to evolve. Tacking to avoid the vortex (and thus make the law) may push the Court into the shoal, symbolizing the elected branches. Traditional legal analysts of the Court do not acknowledge the threat of Scylla, while attitudinal scholars conceive of Charybdis as a minor theoretical nuisance if it exists at all. The theme of this book is that Scylla and Charybdis (or what they represent) exist as real constraints. The Court is advised to adopt restraint in making its decisions. To continue the metaphor, those steering the Court need to navigate carefully to avoid the perils of either force. A favorable zephyr in the form of public support at its back can aid the Court in navigating the straits. And if it is favorable, the Court (aboard the good ship Legitimacy) would be encouraged to trim its sails. The Framers of the Constitution wanted the Court to worry about Scylla and Charybdis. They placed the rocky shoal alongside straits in the form of numerous checks for Congress and the president to hold in reserve. They assumed the whirlpool would represent the natural resources of the Anglo-American legal system. Does the modern Court need to worry about Scylla and Charybdis? Has technology or the passage of time widened the straits and thus lessened the danger? Maybe erosion has stripped the rocks of their past danger. At the end of the day (or whenever you finish this book), you can determine whether you feel the Court is constrained by these factors or free to navigate its own course. Regardless of your conclusion, it is clear that

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the Court is no longer the least dangerous branch of government. The constraints are real, but whether the Court can successfully navigate them remains an important question. The Court is an active policy maker. In some respects, it always was. But perhaps the scope of its policy making is more ubiquitous than it has ever been. In Chapter 1, I laid out three ideal models of judicial decision making: the legal, attitudinal, and strategic. I hope, by now, that I have convinced you that none of the models accurately captures the full complexity of decision-making, but each of the models contributes an important piece to understanding the broader picture. The constraints and opportunities that the Court confronts or embraces are conditional. Different issues trigger different factors and influences. My last vignette is a good, if not completely typical, example of the impact of the broader forces. Miranda v. Arizona (1966) was not a popular decision, either in elite or mass public circles. The decision was consistent with the Warren Court ideological predilections. It was a perfect reflection of the attitudinal model. Miranda was not the first decision to protect the rights of the defendant. Mapp v. Ohio (1961), Gideon v. Wainwright (1963), and Escobedo v. Illinois (1964) predated Miranda (Long 2006; Pacelle 2004). In that respect, Miranda was consistent and thus reflective of the emerging precedents coming from the Warren Court (Haynie 2004). Thus, Miranda was also consistent with the legal model of decision making. On the other hand, the decision was certain to anger Congress, state legislatures, the police (who would have to carry out the decision), and the mass public, which believed that the Court had “handcuffed the police.” Indeed, in a mostly symbolic gesture, Congress passed a law ostensibly overturning Miranda. Of course, because it was a congressional statute, it only pertained to Washington, D.C., and federal law enforcement. Despite the rage against the machine, of all the decisions that were handed down by the Warren Court, Miranda may have been the easiest to comply with. While publicly complaining, police and prosecutors quickly recognized that Miranda was easy to implement and could readily be turned to their advantage (Leo 1995–1996). It would be hard to estimate how many movies and television dramas showed the characters reciting the Miranda warnings or invoking its promises. Among the general public, it might well be the best-known Supreme Court decision in history (rivaling Roe v. Wade, Bush v. Gore, and Brown v. Board of Education). The decision became part of popular culture as well as legal history. A generation after the original landmark decision, the Miranda warnings were facing a serious threat. The Court had gotten considerably more conservative. While Miranda was still “good law,” the Court had been creating a number of exceptions to the doctrine (Haynie 2004). When the original precedent gets riddled with exceptions, it can basically die of its own weight. Dickerson v. United States (2000) was the intended

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vehicle to overturn Miranda. The votes seemed to be there to get rid of the landmark. The ultimate repeat player, the solicitor general, prepared the recipe for the demise of Miranda. Precedent cut two ways. Miranda was still on the books, but it had been weakened over the years. The rights of defendants remained unpopular among elected officials. Thus as Dickerson was argued, the attitudinal and strategic models both suggested the end for Miranda, while legal factors were at best a weakened anchor in support. Charles Dickerson had been arrested for bank robbery and for using a gun in the commission of the crime. He moved to suppress statements he made to the FBI because he had not been Mirandized. The District Court had ruled that Miranda v. Arizona was not a constitutional decision and thus could be overturned by a simple statute. The Court appeared to tip its hand when it invited Paul Cassel, a former law clerk of Antonin Scalia, to brief the issue of whether the statute overturning the Miranda requirements were constitutional. Against that backdrop, a majority resisted the impulse to eradicate the Miranda requirements. In a 7-2 decision, the Court ruled that the original Miranda decision was based on constitutional grounds, and thus Congress could not relieve law enforcement of the Fifth Amendment’s requirements with a simple statute. In addition, Chief Justice Rehnquist, writing for the majority, reminded everyone that the Court is the ultimate arbiter of the meaning of the Constitution. Although the Court had carved out a few exceptions to the original decision, Rehnquist noted that these decisions had never eroded the core of Miranda. In addition, Miranda was in the pantheon of decisions that are well known to the public (Long 2006, 188–190). The Dickerson decision provides a vehicle to examine the calculus the Court has to go through. It is an example of how the Court balances the various forces that help shape its decisions. This was the rare case that had a large public footprint. The decision reflected the influence of precedent and the law, as well as a concession to public opinion. It is just a single case, but it is emblematic of the balancing act that the justices frequently have to perform.

Managing the Court’s Environment In this study, I have looked at the Court as an institutional actor. Many studies use the individual justice as the unit of analysis. Justices have lifetime tenure, have reached the pinnacle of their careers, and cannot be reversed by a higher court. Thus, in theory, they are free to follow their sincere policy preferences in making their decisions. But if each justice followed his/her own policy designs without regard to the consequences, the Court as an institution would risk certain consequences. If the Court gets too far ahead or behind public opinion, it may invite retaliation from the

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other branches of government. And the Court may risk its most precious resource: its legitimacy (George and Epstein 1992). So let’s review where we have been before examining the missing link: law and precedent. I have argued here and elsewhere that Brown v. Board of Education marked the emergence of the modern Supreme Court. The Court has always been a policy maker, but since 1954 it has been a central policy maker. Brown and its progeny stand for two principles: the judiciary is the appropriate venue for the protection of individual liberties and civil rights, and the Supreme Court is the sole or primary interpreter of the Constitution (Powe 2000; 2009). The Brown decision fulfilled the promise of the preferred position doctrine. The Court would protect the rights of insular minorities. And in defense of these new priorities, the Court announced its hegemony over the Constitution and the Bill of Rights. Brown was not decided in a vacuum. It was the product of a particular moment and reflected that time. But there were other facets of political life that may not have influenced the decision but provided a context for it and the resulting relationship between the Court and the other forces in its environment. The Great Depression and World War II created the conditions for presidential government and a new central government dominated federalism. Politics tends to be a zero-sum game. The power that is accrued by the winners (the president, Supreme Court, and national government) comes at the expense of the losers (Congress and the states). The Court’s control over its own docket allows it to concentrate on the cases it wishes to accept. The Court was able to convert its agenda from almost exclusively economic cases to a concentration on civil rights and individual liberties issues (Pacelle 1991). Presidents used these issues as litmus tests for their nominees to the Court (Epstein and Segal 2005). Those issues were divisive, thus enhancing the impact of the sincere preferences of the individual justices. The number of unanimous decisions declined (Pacelle 1991). As a consequence, it is not surprising that in most of the models, the attitudinal variable exerts a very strong effect on the Court’s decisions (Segal and Spaeth 2002). The modern Court was able to gain power because Congress has a collective-action problem and ceded authority. While the presidency grew in power, the foreign affairs president was much stronger than his domestic counterpart (Marshall and Pacelle 2005). There was a vacuum as the president and Congress were willing to let the Court engage the most controversial issues. Unlike members of Congress, justices did not have to worry about reelection. Of course, Congress could have the best of both worlds: it could abdicate responsibility for divisive issues, but loudly criticize the Court for stepping into the vacuum. In essence, this is the current Congress: too large and disjointed to make coherent public policy, while atomized enough to permit its members to earn electoral benefits by making the Court and its decisions an issue (Pacelle, Curry, and Marshall 2011).

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The bird’s-eye view of Congress strongly suggests an institution that lacks the power and cohesiveness to mount a successful, concerted attack on the Court. On the other hand, individual members have an electoral incentive to use the Court as a target. It is easy to see why some could argue that the Court need not really concern itself with Congress and thus modify its decisions. And the empirical results of the various decisionmaking models presented here show that the ideology of the Senate has almost no effect on the Court’s decisions. The impact of the House is conditional and found in statutory cases. The Court does seem to respond to threats to its jurisdiction (Clark 2011; Hall 2011). Though the prospects for success are remote, the Court’s antenna seems particularly attuned to such threats. It is not surprising that the president exerts an impact on the Court’s decisions. The tools of influence are readily available. Appointments to the Supreme Court can move the median in the direction of the president’s ideology (Krehbiel 2007). The president’s willingness to use the solicitor general to pursue his policy goals has the potential to influence the Court’s decisions—that is, if the president is not too bold in attempting to exploit this resource (Pacelle 2003). The role of public opinion is perhaps the most surprising. Public opinion is, on one level, a pervasive factor in every segment of American politics. The existence of an impact appears to belie the intent of the Framers, who insulated the judiciary from the direct reach of public opinion. On the other hand, the rest of the Constitution suggests that public opinion might have an indirect effect through the checks that the president and Congress possess. The results of the various decision-making models in these chapters show that public opinion has a weak, but positive and statistically significant impact on the Court’s decision making. This may be a case where the results underestimate the magnitude of the effect. It appears that the Court responds to the president and particularly to Congress, perhaps because of a concern for its public standing. In announcing the preferred position doctrine, the Court was claiming that its independence from public opinion would permit it to protect the rights of minorities and the liberties of those who might espouse unpopular ideas. The fact that the Court seems constrained by public opinion is a boost to democratic theory. But at the same time, it might suggest a tyranny of the majority: the Court is acceding to the wishes of the majority rather than protecting the rights of minorities.

I Knew I Forgot Something: Where’s the Law? This book has focused on the other actors in the Court’s environment. In doing so, I gave short shrift to the impact of the law and precedent. I would not be alone in committing that offense (Aldisert 1990). But in my defense, each of the decision-making models accounted for the direct

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role of precedent. In Chapter 7, on the lower courts, there was indirect attention to the law and precedent. This is perhaps an appropriate time to look at precedent and law a little more systematically. There are different ways to conceptualize the law and precedents. As noted, seldom is a case that the Supreme Court is deciding identical to a previous decision. Thus, existing precedents have to be tailored to shifting fact patterns. It is perhaps more instructive to look for decisional patterns. Is the Court, as defined or labeled by the chief justice who presides, fairly consistent in its decision making? Precedent and decisional patterns are clues or markers that repeat player litigants use to determine whether it makes sense to file a brief and how to construct the argument before the Court. If a Court majority takes a consistent stance on a series of related issues, then it is creating a web of connected precedents that can protect those positions from erosion if the ideological balance changes. Of course, when the majority changes, groups and repeat player litigants who chafed under the old majority will be encouraged to attempt to move doctrine back toward their preferred position. There is often a tension between adhering to precedent and the attitudinal goals of the justices. Precedents can stop justices from pursuing their sincere policy preferences, or at least make the pursuit more difficult. The tension points out the different perspectives. Justices want to pursue their policy goals, but the Court as a whole needs to impose consistency on the law. When the justices’ policy goals are in harmony with the existing precedent, it is a smooth application and the decisions carry extra legitimacy because they appear to be based on “the law.” Westerland, Segal, Epstein, Cameron, and Comparato (2010, 894) argue that the Court wants to “annihilate and rewrite the opinions of its predecessors but desires immortality for its own opinions.” However, the justices understand that would mean the end of precedent. Rasmusen (1994) argues that a future-minded court needs to respect the opinions of earlier courts to create what is, in effect, an implicit cross-generational deal. This becomes attractive to the current justice whose opinions will have durability. Future justices will defer to his/her opinions as a corollary of the so-called “golden rule of precedent.” Thus, for the current justice, deference to precedent today is the cost for achieving durability for his/her precedents. In a paradoxical way, then, justices who want to advance their policy goals have to respect the very precedents that might make that impossible. There are a number of incentives for individual justices and the Court to adhere to precedent. First, the wanton disregard for precedent would expose the Court as a policy-oriented organ, and that would strip the Court of some layers of its legitimacy. Undermining the Court would remove the policy platform justices would need to see their sincere preferences animated. Second, justices who continually attack existing precedent

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cannot expect their colleagues or successors to respect the precedent they have established during their tenure. Third, relying on precedent provides instrumental benefits. Beyond the obvious need to establish some continuity in the law and guide the lower courts, the ability to rely on precedent will enhance the legitimacy of the Court. The relationship between the lower courts and the Supreme Court is also centered around precedent and legitimacy. The Supreme Court needs to communicate its precedents to the lower courts and then delegate the authority to apply that standard in the numerous future cases that will populate the district courts and courts of appeals dockets. The Court hopes that its legitimacy will induce the lower court judges to be faithful to its designs. Recalcitrant judges can undermine the Supreme Court’s legitimacy (and a measure of their own) by failing to apply the appropriate standards. The Supreme Court can also build upon its own reserve of legitimacy by respecting and honoring the inputs of subordinate judges. As we noted in Chapter 7, messages travel up and down the judicial hierarchy. It may be the work of a team of rivals (with apologies to Abraham Lincoln and Doris Kearns Goodwin) or the interactions between a principal and a group of ideologically motivated agents. Either way, they engage in an ongoing dialogue as they attempt to build doctrine in the face of uncertainty. The actions of the Supreme Court, in the form of decisions, are followed by lower court responsiveness, coupled with delegated lower court learning and experimentation, followed by Supreme Court selection and imposition of a doctrinal extension that emerges from that experimentation (Westerland et al. 2010). Judicial decision making is a combination of substantive preferences and structural considerations (Baum 1997). Substantive preferences are at the heart of the attitudinal model. But structural considerations are part of judicial decision making as well. Structural considerations include legal factors as well as concerns over the scope of judicial power. The prevailing view in the literature has been that structural considerations are subordinate to substantive policy preferences. And while they may ultimately be so, it is clear that both considerations are consequential, and it is impossible to understand Supreme Court decision making without accounting for both.

The Delicate Balance The Constitution, the power of judicial review, and the symbolic aura of the law have bequeathed the Court a measure of legitimacy. But it is a finite resource. The Court (indeed, the judiciary more generally) needs to guard that reserve, but it often incurs risks by entering into controversial issues. The Court needs to balance its policy goals with its institutional responsibilities. Public opinion and the elected branches can constrain

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the Court. Yet at the same time, the Court needs to provide a compass, particularly on some issues. Justice Jackson summed up a dimension of this tension: “Civil liberties had their origin and must find their ultimate guaranty in the faith of the people. If that faith should be lost, five or nine men in Washington could not long supply its want” (Douglas v. Jeannette 319 U.S. 157 at 182 (1943)). What can the Court do to pursue its collective policy goals while preserving its legitimacy? The Court can align itself with one of the branches to protect it from the other. The Court needs to practice self-restraint, respect presidential and congressional prerogatives, and follow precedent when possible. When it is not possible, the Court needs to exercise activism thoughtfully and choose its spots carefully. The Court can also retain respect and legitimacy by trying to standardize the law. As noted, legal change unfolds differently across the various circuits. Indeed, the evidence suggests that the Supreme Court encourages this. Some circuits may be more receptive to change than others creating a strong incentive for strategic litigation. This, in turn, has important implications for issue evolution and political control of the judiciary. All of these considerations underscore the importance of appointments to the Supreme Court and lower courts. Presidents and Congress can influence change by manipulating the appointment process. They can move the median of the Supreme Court to a more favorable position. They can also influence the development of law through their nominations to the lower federal courts. Lower court doctrine should track the changes in the composition of the Supreme Court, because presidents are appointing both simultaneously. I want to use the remainder of this chapter to synthesize the decisionmaking models gathered here and see what can we glean from them. By virtue of the Supreme Court’s ability to interpret the Constitution and legislation and guide the work of lower courts, it has accrued a tremendous amount of power. The Court has voluntarily chosen activism in order to fill a yawning gap in policy making created by the vacuum of leadership left by the elected branches. The Court sets a moral imperative in its decisions and justifies its choices through its construction of an evolving democratic theory. It operates in an environment marked by uncertainty and asymmetric information. Lawrence Baum (2006) identifies a number of audiences for the Court. The Court develops constitutional dialogues with the other branches and the lower courts through its decisions. Justices seek to read their sincere preferences into the law. This will create precedents that will survive and influence the construction of doctrine long after the individual justice has left the Court. As noted, those decisions are part of an evolving democratic theory. But they are also exercises in practical politics. Decisions and precedents have real winners and losers. Congress and the president may engage the Court on the broader theoretical grounds, but more

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often it is a debate or battle on policy grounds. Those conflicts provide the incentive for the other branches to weigh whether to mobilize for a battle with the Court. The multiple audiences, which include litigants, the bureaucracy, and the public, in addition to the other branches and the lower courts, underline the complexity of the Court’s task. The Court often has to balance a number of these actors simultaneously. The checks of Congress and the president are impressive on paper but a little unwieldy. The Court’s willingness to check itself or impose its own boundaries can keep the other branches at a safe length. By keeping within the broad boundaries of public opinion, the Court lessens the hue and cry that might activate the other branches of government. Tom Clark (2011), among others, argues that the ultimate concern or fear of the Supreme Court is a galvanized public opposition stoked by the other branches of government. So let’s do a little “math” to conclude this analysis. On the one hand there are the constraints the Court has to face: the president, Congress, public opinion, lower courts, and the need to adhere to stare decisis can pull the Court away from its collective preferences. The left side of this equation looks pretty formidable for the Court. So, what is on the right side to counteract it? Constitutional decisions can minimize the impact of the elected branches, and lifetime tenure and independence can shorten the reach of public opinion. The great equalizer is the Court’s legitimacy. Legitimacy is a double-edged sword. Let me warn you of mixed metaphors ahead. It is a protective shield for the Court. The Court can make difficult decisions, and its legitimacy may stay the hand of the other branches. But that shield is not impenetrable or invulnerable. Rather, it is a decidedly finite resource. The Court preserves its legitimacy by spending it judiciously. By incurring fewer risks, the Court does not provoke a hostile response from the other branches or risk lower court resistance. Judicial activism permits justices to pursue their sincere policy preferences. But wanton activism is going to expose the Court to enhanced attention from the other branches. And that may ultimately translate to some policy response or the exercise of one of the checks possessed by the other branches. The antithesis of judicial activism is sometimes referred to as “judicial self-restraint.” The Court is the guardian of its own resources. The Court seeks to pursue its collective policy preferences while it stabilizes the law. To strike the appropriate balance, the Court has to be strategic on a number of levels. The Court can thread carefully when it feels that an issue or a particular decision might provoke a hostile response. The Court can also be strategic in picking its battles carefully. The Court can take the safe path in the majority of its decisions and save the road less traveled for the issues that are particularly salient. There are a number of instances of times when the Court was unable to navigate Scylla and Charybdis and found itself shattered on the rocky

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shoals or engulfed in a vortex. The Dred Scott decision and the Court’s resistance to the New Deal are a few well-known examples of selfinflicted wounds. The modern Court seemingly has not been visited by such misfortune. But Brown, Roe, criminal procedure decisions, Citizens United, and a variety of other decisions have raised the public and elite temperatures (Klarman 2013). Have the recent Courts done a better job of steering between Scylla and Charybdis? Or is this evidence that the Court does not need to worry about the checks of the other branches?

A Quick Trip Through the Modern Court Let me use those questions to wrap up this chapter and the book. To finish, I will step back from the theoretical perspective and examine some of the practical realities of the last six decades, the period of the modern Court (revisit Table 1.1, listing the various Courts). The Court makes more frequent sojourns these days, meaning more risks of the treachery of Scylla and Charybdis. The Warren Court, author of Brown v. Board of Education, launched a “Constitutional Revolution” that has forever altered the context of American politics. The Warren Court was not constrained by public opinion or past precedent. It navigated straight for the rocks. Congress attacked the Court using the full range of its checks. But the Court was undeterred and continued to push the bounds of liberties and rights. The Court was shielded in part by presidents who implemented its directives. The Court also had some protection from political retaliation because the constitutional grounds of the decisions limited congressional options. The Warren Court could stand for the proposition that the attitudinal model is primary and the justices need not be concerned with the strategic factors that we have examined. But if the Warren Court stuck to its principles in fashioning new legal theories, it invited these risks. The Court was never sure that its decisions would be supported. It became a focal point for public and elite criticism. And if the Warren Court seemed aggressive and bold in developing its moral imperatives and propagating its new political theory, it could be circumspect in developing remedies. The Brown II implementation decree was very measured, and the Court openly acknowledged the constraints of public opinion, the lower courts, and the elected branches of government. In addition, in areas that were less salient, the Warren Court did respect the constraints imposed by Congress and the president. The Court also tired to impose consistency on the economic decisions, paying close attention to precedent and laying bright lines for the lower courts to apply. The din of public and elite criticism had consequences. The Court became a visible campaign issue. As we saw in Chapter 1, the election

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of Richard Nixon led to wholesale changes in the composition of the Court, the exercise of an important constitutional prerogative to check the old Court and create a new one. And those changes also contained a message about exercising some self-restraint or attending to existing constraints. The Warren Court gradually morphed into the Burger and then the Rehnquist Court. The behavior of the Burger Court was considerably more in line with the models that we have been investigating. The median justice continued to move to the right. If the attitudinal variable was the primary factor, then there should have been a wholesale change in the direction of decisions. The Burger Court not only refused to reverse the Warren Court rulings, but it often extended them. The Burger Court supported busing, the disparate impact standard, affirmative action, and reproductive rights. The Burger Court followed precedent. The law served as a constraint. The Court also showed periods of deference to the president and Congress. The Burger Court appeared to respond to the strategic and legal factors and tempered its decisions. It steered a course that took it near Scylla at times and close to Charybdis at other junctures. The Rehnquist Court has seemed a little more adventurous. The pendulum swung, back toward the Warren Court (in activism, not ideologically). It appears that the attitudinal variables became a little stronger. The almost unbroken streaks of Republican control of the White House created a critical mass that pushed the Court strongly to the right. Tom Keck (2004) argues that the Rehnquist Court was historically the most activist in history. And depending on the definition of activism, this is arguably true. The Rehnquist Court was not as deferential to the president and Congress. But it is important to underline that despite how far the Court appeared to drift to the right (through the appointment process), the Court’s decisions did not simply reflect that ideology. Chief Justice John Roberts sounded the theme of this book (not that he has read it; it is more of a coincidence of great minds thinking alike). Roberts has urged the Court to adopt more self-restraint and deference to the elected branches. And Roberts walked the walk by providing the critical vote to uphold the Affordable Care Act. Of course, Chief Justice Rehnquist advocated a similar revised role for the Court, urging the Court to wean itself off its unconstrained policy making. He admonished the Court to resist the impulse to insert itself into the center of policy struggles. Rehnquist felt that if the Court could step aside and not rush into policy disputes, eventually the elected branches would have to address the issues. Just as the Court filled a vacuum that Congress had created, the elected branches would have to take the initiative if the Court exercised restraint and relinquished its activism. Rehnquist publicly stated that he wanted to steer the ship clear of Scylla. But the evidence suggests that the Court never fully adopted his advice.

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Opening Farewell The Court’s legitimacy is not a tangible resource, but it appears to carry significant weight. We have traditionally viewed it as a precious resource that is finite. The Court can hemorrhage this resource by being too active in policymaking and/or antagonizing the other branches of government. The evidence suggests, though, that the Court has decidedly not followed this advice since Brown. It was civil rights, then protection of criminal defendants, privacy, reproductive rights, and controversial remedies. The Court seemed to be more activist, rather than less. How do I reconcile the dramatic levels of activism with my hypothesis that the Court acts more deliberately as a reflection of the multiple constraints in its environment? One answer would be entirely consistent: the Court is like a pendulum. For some period of time, the Court makes decisions with little concern for the forces that could harm it. Those forces reach a point of opposition and begin to use or at least threaten to confront the Court. Maybe their reaction is a simple attempt to change policy and does not leave any long-term scars. Alternatively, the accumulation of perceived transgressions could trigger a more extreme reaction that would wound the institution and cripple it for a generation. This would represent a long-term learning model. It is worth consulting the wisdom of Justice Jackson one last time. He could always turn a phrase. It is important to remember that this quote was issued very soon after the Brown decision in the nascent days of the modern Court. Jackson (1955, 79–80) wrote: My philosophy has been and continues to be that [the Court] cannot and should not try to seize the initiative in shaping the policy of the law, either by constitutional interpretation or by statutory construction. While the line to be drawn between interpretation and legislation is difficult, and numerous dissents turn upon it, there is a limit beyond which the Court incurs the just charge of trying to supersede the law-making branches. Every Justice has been accused of legislating and every one has joined in that accusation of others. When the Court has gone too far, it has provoked reactions which have set back the cause it is designed to advance and has sometimes called down upon itself severe rebuke.

Note 1 The Greeks originally viewed Scylla and Charybdis as a pair of sea monsters, but later they came to represent more natural disasters.

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Cases Cited

Abington Township v. Schempp, 374 U.S. 203 (1963) Allen v. Wright, 468 U.S. 737 (1984) Barenblatt v. United States, 360 U.S. 109 (1959) Boeing Co, v. United States, 537 U.S. 437 (2003) Bolling v. Sharpe, 347 U.S. 497 (1954) Bowers v. Hardwick, 478 U.S. 186 (1986) Brown v. Allen, 344 U.S. 443 (1953) Brown v. Board of Education, 347 U.S. 483 (1954) Brown v. Board of Education (Brown II), 349 U.S. 294 (1955) Bush v. Gore, 531 U.S. 98 (2000) Central Hudson Gas and Electric Corporation v. Public Services Commission of New York, 447 U.S. 557 (1980) Chevron USA v. Natural Resources Defense Council, 467 U.S 837 (1984) Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) City of Boerne v. Flores, 521 U.S 507 (1997) Dickerson v. United States, 530 U.S. 428 (2000) Douglas v. Jeannette, 319 U.S. 157 (1943) Dred Scott v. Sanford, 60 U.S. 393 (1857) Employment Division v. Smith, 494 U.S. 872 (1990) Engle v. Vitale, 370 U.S. 421 (1962) Escobedo v. Illinois, 378 U.S. 478 (1964) Ex parte McCardle, 74 U.S. 506 (1869) Federal Communications Commission v. Fox Television Stations, 556 U.S. 502 (2009) Frontiero v. Richardson, 411 U.S. 677 (1973) Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) Gibbons v. Ogden, 22 U.S. 1 (1824) Gideon v. Wainwright, 372 U.S. 335 (1963) Griggs v. Duke Power Company, 401 U.S. 424 (1971) Griswold v. Connecticut, 381 U.S. 479 (1965) Grove City College v. Bell, 465 U.S. 555 (1984) Harris v. McRae, 448 U.S 297 (1980) Hollingsworth v. Perry, 570 U.S. ___; 133 S.Ct. 2652 (2013) Hustler Magazine v. Falwell, 485 U.S. 46 (1988) Johnson v. Texas, 491 U.S. 397 (1989)

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Cases Cited

Lawrence v. Texas, 539 U.S. 558 (2003) Lechmere, Inc. v. N.L.R.B., 502 U.S. 527 (1992) Lemon v. Kurtzman, 403 U.S. 602 (1971) Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) Mallory v. United States, 354 U.S. 449 (1957) Mapp v. Ohio, 367 U.S. 643 (1961) Marbury v. Madison, 5 U.S. 137 (1803) Martin v. Hunter’s Lessee, 14 U.S. 304 (1816) Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007) McCulloch v. Maryland, 17 U.S. 316 (1819) Memoirs v. Massachusetts, 383 U.S. 413 (1966) Miller v. California, 413 U.S. 15 (1973) Minersville School District v. Gobitis, 310 U.S. 586 (1940) Miranda v. Arizona, 384 U.S. 436 (1966) Murray v. Curlett, 374 U.S. 203 (1963) National Federation of Independent Business v. Sebelius, 567 U.S. ___; 132 S.Ct. 2566 (2012) National Labor Relations Board v. Jones & Laughlin Steel Co., 301 U.S. 1 (1937) National Muffler Dealers Association v. United States, 440 U.S. 472 (1979) New York Times v. Sullivan, 376 U.S. 254 (1964) Payne v. Tennessee, 501 U.S. 808 (1991) Planned Parenthood v. Casey, 505 U.S. 833 (1992) Plessy v. Ferguson, 163 U.S. 537 (1896) Regents of the University of California v. Bakke, 438 U.S. 265 (1978) Roe v. Wade, 410 U.S. 113 (1973) Romer v. Colorado, 517 U.S. 620 (1996) Roth v. United States, 354 U.S. 476 (1957) Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) Sherbert v. Verner, 374 U.S. 398 (1963) Skidmore v. Swift & Co., 323 U.S. 134 (1944) United States v. Carolene Products Co., 304 U.S. 144 (1938) United States v. Eichman, 496 U.S. 310 (1990) United States v. Mead Corp., 533 U.S. 218 (2001) United States v. O’Brien, 391 U.S. 367 (1968) United States v. Public Utilities Commission of California, 345 U.S. 295 (1953) United States v. Windsor, 570 U.S. ___; 133 S.Ct. 2675 (2013) Watkins v. United States, 354 U.S. 178 (1957) West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) Wickhard v. Filburn, 317 U.S. 111 (1942) Wisconsin v. Yoder, 406 U.S. 205 (1972) Wolman v. Walter, 433 U.S. 229 (1977) Worcester v. Georgia, 31 U.S. 515 (1832)

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White, G. Edward. 1993. Justice Oliver Wendell Holmes: Law and the Inner Self. New York: Oxford University Press. White, G. Edward. 1982. Earl Warren: A Public Life. New York: Oxford University. Whittington, Keith. 2007. Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History. Princeton: Princeton University Press. Wilkins, Richard. 1988. “An Officer and an Advocate: the Role of the Solicitor General.” Loyola of Los Angeles Law Review 21: 1167–1186. Wilson, James Q. 1989. Bureaucracy: What Government Agencies Do and Why They Do It. New York: Basic Books. Wilson, James Q. (Ed.). 1980. The Politics of Regulation. New York: Basic Books. Wohlfarth, Patrick C. 2009. “The Tenth Justice? Consequences of Politicization in the Solicitor General’s Office.” Journal of Politics 71: 224–237. Wolfe, Christopher. 1997. Judicial Activism: Bulwark of Freedom or Precarious Security? Lanham, MD: Rowman & Littlefield. Wood, B. Dan. 1988. “Principals, Bureaucrats, and Responsiveness in Clean Air Enforcement.” American Political Science Review 82: 213–234. Wood, B. Dan, and James E. Anderson. 1993. “The Politics of U.S. Antitrust Regulation.” American Journal of Political Science 37: 1–39. Wood, B. Dan, and Richard W. Waterman. 1994. Bureaucratic Dynamics: The Role of Bureaucracy in a Democracy. Boulder: Westview Press. Wood, B. Dan, and Richard W. Waterman. 1993. “The Dynamics of PoliticalBureaucratic Adaptation.” American Journal of Political Science 37: 497–528. Wood, B. Dan, and Richard W. Waterman. 1991. “The Dynamics of Political Control of the Bureaucracy.” American Political Science Review 85: 801–828. Yarbrough, Tinsley E. 2008. Harry A. Blackmun: The Outside Justice. New York: Oxford University Press. Yarbrough, Tinsley E. 2005. David Hackett Souter: Traditional Republican on the Rehnquist Court. New York: Oxford University Press. Yarbrough, Tinsley E. 2000. The Rehnquist Court and the Constitution. New York: Oxford University Press. Yates, Jeff. 2002. Popular Justice: Presidential Prestige and Executive Success in the Supreme Court. Albany: State University of New York Press. Zelditch, Morris, Jr. 2001. “Theories of Legitimacy.” In John Jost and Brendan Major (Eds.), The Psychology of Legitimacy: Emerging Perspectives on Ideology, Justice, and Intergroup Relations, pp. 33–53. Cambridge: Cambridge University Press.

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Subject Index

Abington Township v. Schempp, 159 Affordable Health Care Act, 9–11, 19, 155, 172, 263 Allen v. Wright, 127 American Civil Liberties Union, 60, 169, 170, 177, 180, 187, 188, 196–198, 200, 201 and Hustler v. Fallwell 169–170, 187 Amicus curiae brief, 39, 42, 45, 50, 52, 72, 133, 135, 152, 153, 169, 174–176, 180, 181, 184, 187– 189, 200, 240 in Hustler v. Fallwell, 169–176, 187 invited amicus briefs (CVSG), political litigants, 169, 170, 174– 176, 180, 184, 187–189, 200, 201, 215, 245 Solicitor General files, 190–194, 202, 204–208 Barenblatt v. United States, 62 Bill of Rights, 137, 185, 256 Boeing Co, v. United States, 113 Bolling v. Sharpe, 89 Bowers v. Hardwick, 129–132, 134, 153, 158, 185 Brown v. Allen, 25, 246 Brown v. Board of Education, 3–5, 14, 20–22, 25, 31, 34, 39, 47, 54, 89, 145, 151, 158, 162, 172, 173, 183, 195, 200, 202, 210, 212–214, 224, 225, 236–239, 252–254, 256, 262 amicus curiae of U.S., 39 Brown v. Board of Education (Brown II), 212–213, 224, 225, 253, 262, 264 Bureaucracy, 90–128

administrative law 103–106 complementarity, 98–100 compliance with Supreme Court, 119–122 control by judiciary,107–114 delegation by Congress, 103–105, 107 expertise forcing, 100, 114 history and growth, 95–97 implications for Supreme Court, 100–102, 104, 105, 122 judicial control, 107, 108 models of, 108–110 politics, 96–99 political control by presidency, 105–107 political control by Congress, 91, 97, 98, 102, 103, 195 preferred position doctrine, 101, 102 similarities with courts, 97–99, 123–124 Solicitor General, 114–118, 122 standards of review, 110–114, 124 Burger Court, 13, 20, 45, 67, 80, 145, 200, 239, 263 activism of, 13, 20, 263 civil liberties and rights and, 20, 45, 67, 200, 263 Bush v. Gore, 244, 254 California, Proposition 8, 133, 165 Central Hudson Gas and Electric Corporation v. Public Services Commission of New York, 230, 251 Certiorari, 10, 15, 116, 129, 168, 173, 178, 179, 181, 187, 207, 231–236 rule of four, 15, 185, 245

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300

Subject Index

Checks and balances, 12, 38, 51 Congress over Supreme Court, 13, 60–65, 147 President over Supreme Court, 13, 31–43, 147 Chevron USA v. Natural Resources Defense Council, 100, 106, 112– 114, 124, 127 Church of the Lukumi Babalu Aye v. City of Hialeah, 61 Citizens United v. Federal Election Commission, 44, 144, 162, 262 City of Boerne v. Flores, 61, 251 Civil Rights Act of 1964, 30, 65–67 Title VII, 66, 67 Civil rights and liberties, 50, 57, 81, 145, 146, 151, 158, 173, 176, 200, 201, 210, 211–214, 224, 225, 243 Civil Rights Restoration Act of 1988, 67 Clean Air Act, 121 Congress, 58, 76 constitutional and statutory decisions, 75, 76, 85, 86–89 judicial restraint, 49 presidential influence, 48 Warren Court, 14, 31 Commerce Clause, 9, 11, 19, 102, 175 Common Space Measures, 4 Communications Decency Act, 82 Congress, 54, 55, 59–89, 206, 244, 260, 263 checks over executive branch, 63, 69, 216 checks over Supreme Court, 47, 60–65, 69, 74, 82, 83, 260–263 budget, 69–70 confirmation process, 69 constitutional amendment, 68, 69, 73, 75–77, 84 impeachment, 69 jurisdiction, 70, 71, 73, 77, 78, 84–88 loss of stature, 62–64, 81, 105, 106, 122, 138, 162, 173, 242, 252, 256, 257 statutory revision, 66–68, 73, 75–77, 84 concerns of Supreme Court, 79–80, 257 constitutional cases, 76, 164 loss of stature, 62–64, 81, 122

Declaration of Constitutional Principles (Southern Manifesto), 224 House and Senate differences, 78–79 Influence of Supreme Court, 64–66, 79–81 Influence on Supreme Court, 81–82 relations with Supreme Court, 62–64,118 salaries of Supreme Court, 70 Supreme Court decisions, 58, 84 view of Supreme Court, 71–77 Constitution, 256, 257, 261 Article I, 12, 13, 138, 239 Article II, 38, 69, 138, 216 Article III, 63, 69 Exceptions Clause, 71 Framers, 8, 11, 12, 32, 45, 59, 62, 63, 70, 122, 134, 137, 154, 156, 159, 160, 163, 199, 253 Constitutional cases, 163–166 Contract Clause, 175 Court Packing Plan, 14, 36, 37, 49, 50 Courts of Appeals, 209–251 Compliance with Supreme Court, 215, 225–230, 235, 241–246 Error correction, 214, 228 Issue framing, 215, 231–235 Law creation, 228, 233, 236, 245, 259 Supervisory role, 214–222 Decision-making models, 3–6, 22, 23, 74, 84–89, 126, 127, 151, 194, 242–244, 247, 248, 254, 257, 260 attitudinal, 3, 4, 15, 16, 23, 28, 48, 56, 150, 163, 179, 207, 217, 222, 243, 254, 256, 259, 262 legal, 3–6, 15, 16, 23, 26, 29, 56, 57, 80, 165, 179, 204, 207, 217, 243, 254 strategic, 3, 4, 10, 11, 15, 16, 23, 28, 47, 48, 57, 58, 150, 154, 179, 207, 243 Declaration of Constitutional Principals, 224 Defense of Marriage Act, 133, 165, 180, 185, 198 Democratic National Convention (2004), 8 Democratic Party, 8, 9

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Subject Index Department of Justice, 234, 249 Desegregation, 211–214, 224, 238, 239 resistance to Dickerson v. United States, 19, 254, 255 Douglas v. Jeannette, 260 Dred Scott v. Sanford, 14, 18, 83, 262 Educational Amendments of 1972, Title IX, 67 Environmental Protection Agency (EPA), 91–96, 100, 104, 107, 121, 122, 127 and Bush Administration, 91–94, 100, 107, 121 and Clinton Administration, 91 and Obama Administration, 122 Employment Division v. Smith, 60, 61, 153 Engle v. Vitale, 159 Escobedo v. Illinois, 254 Evolution, 90 Exceptions Clause, 71 Ex parte McCardle, 71 Federal Communications Commission v. Fox Television Stations, 114 Federal District Courts, 38, 212, 213, 216, 217, 240 Federalism, 175 Federalist Papers, 156, 165 Federalist 49, 156 Federalist 78, 9 Fifth Amendment, 134, 157, 168 First Amendment, 59, 167–172 Fourteenth Amendment, 175 Free exercise clause, 59 Freedom of the Press, Reporters Committee, 171 Frontiero v. Richardson, 39 Gay and lesbian rights, 129–134, 153, 158, 165 Gertz v. Robert Welch, Inc., 171 Gibbons v. Ogden, 14 Gideon v. Wainwright, 31, 180, 184, 254 Global warming, 9, 91 Greenhouse Effect, 150, 153 Griggs v. Duke Power Company, 66 Griswold v. Connecticut, 20, 130 Grove City v. Bell, 67, 68

301

Harris v. McRae, 66 Health care, comprehensive, 8–12, 135, 144, 157, 198 Hollingsworth v. Perry, 133, 134 House on Un-American Activities Committee, 61, 62 House Support for Curbing Legislation and Senate Support for Curbing Legislation, 84 Hughes Court, 13, 14, 80, 176 Hustler Magazine v. Falwell, 167–172, 176, 187, 197, 198, 251 Hyde Amendment, 68 Interest groups, 168, 173–177 Implementing Population, 119–122, 235–242 Interpreting Population, 235–242 Issue evolution, 5, 11, 29, 30, 48, 56, 57, 87, 165, 249 Issue framing, 38, 142, 143, 165, 190, 202, 215, 231 Jay Court, 13, 14 Jehovah’s Witnesses, 177 Johnson v. Texas, 159 Judicial activism and restraint, 19, 20, 82, 173, 176, 202, 224, 224, 260, 261, 263, 264 civil rights and liberties cases, 173 economic cases, 49, 176 Rehnquist Court, 19 Roberts Court, 11, 19, 65 Judicial review, 13, 19, 39, 51, 64, 65, 80, 81, 88, 145, 146, 259 Justices, confirmation process, 143, 144 information needs of, 179–183, 187, 189, 191, 201, 202, 215, 219 motivations of, 15–19, 22, 178– 185, 228, 231, 259 nomination by president, 38, 49, 263 policy preferences, 9, 16–22, 68, 72, 143, 151, 181, 212, 218, 222, 223, 228, 238, 241, 242, 244, 255, 256, 259, 261 power of Chief Justice, 21, 22 Lawrence v. Texas, 132–134, 153, 156, 158 Lechmere, Inc. v. NLRB, 113 Legislative Reorganization Act of 1946, 105

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302

Subject Index

Lemon v. Kurtzman, 6, 230 Legitimacy of Supreme Court, 16, 22, 27, 39, 40, 51, 76, 77, 80, 82, 88, 89, 135–144, 150–152, 156–161, 173, 181, 224, 241, 242, 252–261, 264 public opinion, 137, 138–144, 147, 151, 152, 160, 164 Litigation, political, 167–204 making public policy, 172, 173 one-shotters, 186–188, 201 repeat players, 179–182,186–189, 199, 201, 202, 215, 258 Solicitor General as repeat player, 189–195, 202, 204–208 Lower courts, 38, 210–251, 258, 261 agenda setting, 231–234 appointment of judges, 216, 217 compliance with Supreme Court, 226, 227, 235–241 experimentation, 245, 259 interaction with Supreme Court, 217–221 interpretation, 235–237 percolation, 222, 229, 231, 251 Lower court judges motivations of, 212, 222–227, 237–246 nominations of, 38, 216–217, 234, 250 Lujan v. Defenders of Wildlife, 127 Mallory v. United States, 61 Mapp v. Ohio, 31, 180, 184, 230, 254 Marbury v. Madison, 13, 14, 39, 172 Marshall Court, 14, 173, 175 Martin v. Hunter’s Lessee, 14 Massachusetts v. Environmental Protection Agency, 91–96, 98–100, 104, 107, 113, 114, 121, 127 McCulloch v. Maryland, 14 Memoirs v. Massachusetts, 197, 209 Miller v. California, 136, 197 Minersville v. Gobitis, 153 Miranda v. Arizona, 19, 31, 230, 235, 254, 255 Murray v. Curlett, 159 National Association for the Advancement of Colored People (NAACP), 176, 177, 188, 195, 196, 198, 200, 201, 211, 213, 239

National Federation of Independent Business v. Sebelius (Obamacare decision), 9–12, 30, 60, 65, 135, 144, 157, 162, 198 National Labor Relations Board v. Jones & Laughlin Steel Co., 102 National Muffler Dealers Association v. United States, 112, 113, 124 National Organization for Women, 177 New Deal, 14, 18, 30, 36, 37, 59, 80, 83, 97, 101, 111, 176, 262 New York Times 169, 187 New York Times v. Sullivan, 170, 171, 183, 200 Nominating Commissions for District courts and Courts of Appeal, 250 Obama Administration, 121, 122 Obamacare. See Health care, comprehensive Patient Protection and Affordable Care Act, 8, 9 Payne v. Tennessee, 249 Planned Parenthood v. Casey, 251 Plessy v. Ferguson, 177, 195 Political litigation and signaling, 181–185 case selection and signaling, 181– 184 cues and signals, 182 complexity of, 195–202 doctrinal development, 182–183 “going public”, 185 History and development, 174–176 issue fluidity, 183–185 Political questions doctrine, 46, 184, 199 Precedent, 4, 9, 10, 17, 29, 30, 51, 57, 85–87, 118, 127, 142, 149, 165, 168, 204, 210, 211, 215, 218, 220, 222, 223, 225, 235, 237, 238, 240, 241, 244, 246, 249, 257–259, 261 “golden rule” of, 17, 165,242, 258 horizontal, 21, 30, 215 on point, 85, 87, 243, 250, 254– 260, 262, 263 “super precedents”, 210, 224–225 vertical, 21, 30, 181, 211, 212, 215, 235 Preferred position doctrine, 101, 102

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Subject Index President, 31–58, 244, 256 agenda issues, 41–43, 48–50, 54 appointment power, 33–38, 48, 49, 63, 69, 257, 260, 263 bully pulpit, 31, 39, 44, 46 checks on Supreme Court, 33–49 implementation, 38–40, 53 nomination of judges, 33–38, 44, 45, 49, 53, 58 Office of Solicitor General, 40–44, 49, 50, 52, 53 civil rights and liberties, 48 executive agencies, 106, 109–113, 119–122 impact on court, 32, 39, 40–45, 48, 206 nomination of federal judges, 216, 217 power, 46, 47, 51, 53, 261 relations with Supreme Court, 45, 51–54 Principal-agent theory, 109, 218, 219, 221, 245 Public opinion, 11, 16, 28, 29, 57, 107, 129–163, 204, 257, 261 Backlash theory, 157, 158 Congress, president, and, 137, 138, 146–149 diffuse support, see specific and diffuse support direct and indirect effects of, 134– 137, 146, 148–152, 154, 159, 163, 164 elites and Supreme Court, 131, 151–154 influence of Supreme Court on, 130–132, 134, 155–159, 162 influence on Supreme Court, 57, 58, 130–138, 148–151, 155–166 influence of majority, 144–147, 157–159, 175–177 issue framing, 142, 143, 165 legitimacy, effects on, 135–144, 147, 150–152, 156, 157, 159– 161, 164, 165 Positive Response Theory, 157 positivity theory, 141 relationship with Supreme Court, 129–134, 160–162 specific and diffuse support, 11, 12, 83, 89, 103, 137–145, 150, 157, 162, 166, 172 Structural Response Theory, 157, 158

303

Supreme Court influence, 136, 137, 160–162 Rassmussen Reports, 62 Reagan Administration, 52, 58, 216, 234 civil liberties and rights and, 49, 52, 58, 202 lower courts and, 38, 216, 234, 251 Regents of the University of California v. Bakke, 180 Regulation, economic, 125 Rehnquist Court, 11, 13, 19, 65, 80, 82, 239, 263 judicial activism, 11, 19, 20, 65, 113, 263 Religion, 59–61 establishment clause, 59, 60 Religious Freedom Restoration Act, 60, 61 Religious Land Use and Institutionalized Persons Act, 61 Richmond Newspapers, Inc., 169, 170 Roberts Court, 19, 20, 65, 114 Affordable Care Act, 19 activism of, 20, 135, 263 standards of review, 114 Roe v. Wade, 20, 52, 58, 68, 132, 158, 172, 173, 180, 183, 184, 202, 254, 262 Reagan Administration and, 52, 76 Romer v. Colorado, 131, 132 Roth v. United States, 197, 209 Seminole Tribe of Florida v. Florida, 251 Senate, 75, 78–83, 135, 206, 224, 250 ratification of federal judges, 216, 217 Sherbert v. Verner, 59–61, 153 Skidmore v. Swift & Co., 111–114, 124 Solicitor General, 10, 40–45, 49, 50, 58, 68, 72, 79, 81, 125, 182, 187–195, 202, 204–208, 233– 235, 249 agency litigation, 115, 116, 118, 119 amicus curiae, 39, 42, 45, 50, 52, 72, 116, 190, 192–195, 202–208 bureaucracy, 114–118, 122

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304

Subject Index

Call for the Views of the Solicitor General (CVSG), 42, 191–193, 204, 207, 208 political litigant, 182 as Repeat Player, 41, 68, 118, 187, 189–195 bureaucracy, 114–118, 122 South Carolina Employment Security Commission, 60, 80 Stimson Mood Variable, 6, 148, 249 Supreme Court, civil liberties and civil rights, treatment of, 14, 20, 25, 47–50, 53–59, 67, 81, 84–87, 101, 107, 110, 137, 146, 151, 163, 176, 179, 182, 192–196, 210, 225, 243, 247–252, 256, 264 constraints on, 1, 4, 9, 10, 12, 13, 16, 26, 27, 50, 64–68, 137, 138, 156, 160, 178, 212, 214, 217–222, 228–230, 237–242, 253–255, 259–262 economic cases, treatment of, 47–49, 59, 61, 81, 101–103, 107, 110, 112, 116–119, 125–127, 146, 163, 176, 182, 194, 210, 234, 243, 247–251, 256, 262, educative function of, 134, 155–159 history and development, 13, 14, 20, 24, 59, 95, 96, 100, 101, 172–176, 256, 262 power, 13, 26, 38, 50–53, 64–66, 81, 97, 122, 256–257 Supreme Court decision making, influence of Attitudinal variable (ideology of Supreme Court), 23, 28, 29, 47, 48, 56, 57, 75, 86, 87, 116, 126, 127, 148, 163, 164, 194, 204, 205, 207, 208, 243, 247–249 Court curbing, 75–78, 86–88 House of Representatives, 23, 28, 29, 47, 50, 57, 58, 75–78, 86–88, 116–118, 126, 127, 149, 163, 164, 204–206, 207, 24, 247–250 Issue Evolution, 23, 29, 30, 48, 57, 75, 86, 87, 117, 118, 126, 127, 164, 165, 194, 204–208, 243, 248–250 Precedent, 23, 29, 30, 48, 57, 75, 86, 87, 117, 118, 126, 127, 148,

149, 164, 165, 194, 204–207, 243, 248–250 President, 23, 28, 29, 48–50, 57, 58, 75, 86, 116, 117, 126, 127, 149, 163, 164, 204–206, 208, 243, 248–250 Public Opinion, 23, 28, 29, 48, 57, 75, 86, 116–118, 126, 149, 164, 165, 204, 205, 208, 243, 248–250 Senate, 23, 28, 29, 47, 50, 57, 75–78, 86–88, 116, 118, 126, 127, 149, 163, 164, 206, 208, 243, 248–250 Solicitor General, 116–119, 125, 126, 194, 204–206, 208 Stare decisis. See Precedent Team Theory, 220, 221 Themis, 26 United States v. Carolene Products Co., 110 United States v. Eichman, 159 United States v. Mead Corp., 113 United States v. O’Brien, 230, 251 United States v. Public Utilities Commission, 88 United States v. Windsor, 133, 134, 180 Vinson Court, 80 Warren Court, 14, 20, 36, 80, 176, 200, 239, 262, 263 activism, 20, 31, 112, 262, 263 civil liberties and rights, 14, 31, 58, 130, 151, 159, 176, 196, 254 criminal procedure, 159, 254 lower courts and, 239, 241 public opinion and, 151, 159, 254, 262 standard of review, 111, 112 Congress, 58, 61, 262 Washington Legal Foundation, 177 Watkins v. United States, 61 West Virginia State Board of Education v. Barnette, 137, 153 Wickhard v. Filburn, 19 Wisconsin v. Yoder, 60 Wolman v. Walter, 6 Worcester v. Georgia, 39, 147

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Name Index

Abraham, Henry J., 18, 31, 33, 34, 37, 44, 45, 48, 49, 54, 69, 162 Abramowitz, Alan, 144, 234 Adamany, David, 145, 146 Aldisert, Ruggero, 257 Alito, Samuel, 35, 44, 144, 166 Allen, Mahalley D., 130, 132 Aristotle, 122 Arnold, R. Douglas, 89 Bailey, Michael A., 7, 9, 15, 19, 50, 58, 117, 179, 206 Baird, Vanessa A., 11, 89, 140, 142, 143, 177, 179, 181–183, 195, 199, 229, 245 Baker, Leonard, 33 Baker, Ross, 74 Bakke, Allen, 180, 188 Ball, Howard, 33, 37, 180, 201, 211 Bamberger, Michael, 14, 21, 82, 123 Barilleaux, Ryan, 2 Barnes, Jeb, 68, 72, 80, 81 Barnett, Randy E, 210 Barrow, Deborah J., 239 Bartee, Alice F., 129–132, 153 Bartles, Brandon L, 11, 69, 138, 141 Baugh, Joyce A., 19, 200 Baum, Lawrence, 7, 10, 15, 17, 39, 68, 69, 73, 81, 138, 152–154, 157, 159, 161, 162, 177, 179, 181, 185, 199, 212, 218, 222, 235–239, 241, 259, 260 Belknap, Michal, 145 Bendor, Jonathan, 109 Benesh, Sara C., 4, 7, 189, 219–221, 225, 235, 236, 238, 240, 241, 244 Benson, Paul R., Jr., 33 Berg, Larry L., 70 Bergara, Mario, 73, 179

Berkson, Larry, 130, 152 Berra, Yogi, 2 Beth, Loren, 59 Bickel, Alexander M., 210 Binder, Sarah, 66, 78 Birnbaum, Jeffrey, 174 Black, Hugo, 25, 33, 37, 45, 166, 200 Black, Ryan, 10, 41, 42, 115, 135, 182, 189, 190, 193, 202, 207, 235 Blackmun, Harry, 34, 35, 44, 58, 130, 185, 188 Blackstone, Bethany, 149–151, 161 Blasi, Vincent, 45, 146 Blumrosen, Alfred W., 66 Bohte, John, 96, 98, 103–108, 123, 149 Bonneau, Chris, 21, 179, 240 Bono, 122 Bookheimer, Samuel, 106 Bork, Robert, 49, 191 Bowles, Matthew R., 114 Boyea, Brent, 240 Brace, Paul, 240 Branch, Taylor, 213 Brehm, John, 109, 226 Brennan, William, 4, 21, 22, 34–36, 129, 130, 241, 251 Brent, James, 219 Breyer, Stephen, 35 Brigham, John, 155 Brown, Linda, 188 Brudney, Jeffrey, 108 Burger, Warren E., 13, 35, 44, 130, 145 Burnham, Walter Dean, 146 Bush, George H.W., 34, 35, 58 Bush, George W., 35, 91, 133, 166 Bybee, Keith, 155

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306

Name Index

Calabresi, Stephen G., 158 Caldarone, Richard, 240 Caldeira, Gregory A., 11, 18, 26, 73, 89, 139, 140–143, 186, 240, 241 Calvin, Bryan, 215, 231–233 Cameron, Charles, 7, 218–220, 244, 245, 258 Canes-Wrone, Brandice, 120, 121, 240 Canon, Bradley, 14, 22, 39, 211, 218, 231, 235, 237, 244 Caplan, Lincoln, 42, 43, 49, 54, 162, 190, 216 Cardozo, Benjamin N., 161 Carmines, Edward, 146 Carminker, Evan, 241 Carp, Robert, 39, 136, 150, 161, 217 Carswell, G. Harrold, 44 Carter, Jimmy, 45, 49, 190, 196, 216, 250 Casillas, Christopher, 6, 11, 141, 149, 151, 250 Casper, Jonathan D., 33, 145, 146 Cassel, Paul, 255 Cater, Douglass, 106, 109, 174 Charybdis, 253, 262–264 Chase, Salmon P., 13 Clark, Hunter, 36 Clark, Tom C., 34 Clark, Tom S., 4, 54, 71, 73, 74, 87, 136, 137, 140, 143, 150, 160, 161, 217, 228, 229, 231, 240– 242, 251, 257, 261 Cleary, Edward, 6, 198 Clement, Paul, 133, 165 Clinton, Robert, 39 Clinton, William J., 35, 41, 131, 133 Cohen, Linda, 118 Cohen, Jeffrey E., 52 Collins, Paul M., Jr., 42, 153, 169, 172, 174, 175, 178, 180, 181, 188, 189, 195, 200, 215, 231– 233, 245 Colucci, Frank J., 151 Comparato, Scott, 218, 258 Cooper, James, 116, 180, 190, 192, 201 Cooper, Joseph, 105 Cooper, Philip, 37, 201 Corley, Pamela, 165, 188, 189, 215, 230–233 Cortner, Richard, 31, 47, 59, 136, 185 Cottrol, Robert, 211

Cover, Albert D., 7 Coyle, Marcia, 65, 185 Crenson, Matthew, 102 Cross, Frank B., 15, 245 Curry, Brett W., 5, 10, 14–16, 22, 26, 32, 39, 63–65, 71, 73–75, 77, 78, 84, 111, 112, 137, 140, 141, 149, 173, 226, 256 Cushman, Barry, 33 Dahl, Robert, 33, 145–147, 150, 155, 157, 161, 175 D’Amato, Anthony, 136, 172, 177, 195, 196, 211, 213, 224, 225 Damore, David F., 63 Davidson, Roger, 62, 82, 173 Davis, Richard, 17, 32, 135, 141, 142, 150, 166, 185 Days, Drew, 41 Deering, Christopher J., 52 DeLay, Tom, 70 Devins, Neal, 66, 119, 138, 152, 154, 157, 159, 161, 162 Diamond, Raymond, 211 Dickerson, Charles, 255 Dierenfield, Bruce J., 159 Dodd, Lawrence, 63 Dolbeare, Kenneth, 211 Douglas, William, 25, 33, 36, 166, 200 Downs, Anthony, 128 Dugan, Andrew, 11 Dunne, Einley Peter, 137 Durr, Robert H., 141 Easton, David, 89, 139 Eisenhower, Dwight D., 34–36, 39 Eisler, Kim Isaac, 36, 241 Eisner, Marc Allen, 108, 109 Elsworth, Oliver, 13 Ely, James W., 175 Enns, Peter, 6, 11, 141, 149, 151, 250 Epp, Charles, 158, 173, 189 Epp, Garrett, 60, 61 Epstein, Lee, 4, 7, 10, 14, 16, 21, 22, 34, 36, 40, 44, 48, 53, 68, 72, 80, 135, 143, 145, 150, 158, 162,173, 175, 177, 178, 180, 189, 195, 199, 200, 215, 218, 232, 256, 258 Erikson, Robert, 7, 150 Eskridge, William N., Jr., 10, 11, 47, 62, 66, 67

Name Index

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Estreicher, Samuel, 178 Eyer, Katie, 233, 245 Fallon, Richard H., Jr., 71 Falwell, Jerry, 167–171 Fenno, Richard F., Jr., 62, 74, 78, 242 Fiorina, Morris P. 52, 88, 107 Fisher, Louis, 21, 32, 46, 63, 66, 105, 162 Flemming, Roy B., 149 Fliter, John A., 175 Flynt, Larry, 167–171 Fontus, 250 Ford, Gerald, 34, 35 Fortas, Abe, 35, 44 Frankfurter, Felix, 25 Franklin, Charles, 131, 154, 155, 157 Freeman, J. Leiper, 106, 109 Freeman, Jody, 91, 92, 94, 100 Fried, Charles, 52, 54, 202 Friedman, Barry, 63, 72, 149, 159, 161 Friedman, Matthew H., 110, 114, 124 Fuller, Melville W., 13 Funston, Richard, 145, 146, 150, 155, 157–159, 161 Galanter, Marc, 151, 182, 186–188 Galilei, Galileo, 90 Garner, Tyron, 132 Garre, Gregory G., 93 Gates, John, 109, 226 Gellhorn, Ernest, 214 Gely, Rafael, 73 George, Tracey, 16, 244, 256 Gerhardt, Michael, 223 Gerhardt, Michael J., 17, 155, 210 Gibson, James L., 11, 18, 26, 73, 89, 139–143, 160, 240, 241, 244 Gideon, Clarence Earl, 180, 188 Giles, Micheal W., 149–151, 161 Gillman, Howard, 155 Ginsberg, Benjamin, 82, 143 Ginsburg, Ruth Bader, 35, 185 Goelzhauser, Greg, 74, 88 Goldberg, Arthur, 35 Golden, Marissa Martino, 91, 105 Goldman, Sheldon, 216 Goldstein, Robert Justin, 159 Goldstein, Tom, 138 Goodnow, Frank J., 98 Goodwin, Doris Kearns, 259 Goplen, Susan K., 113 Gopnik, Adam, 90

307

Gordon, Sanford, 240 Gormley, William, 106 Gould, Stephen Jay, 197 Graham, Ann, 112, 114 Graham, Fred, 31 Graham, Hugh Davis, 31, 66 Greenberg, Jack, 239 Greenhouse, Linda, 58, 93, 151, 153, 185 Gruhl, John, 218 Haider-Markel, Donald P., 130, 132 Haire, Susan B., 217, 218, 225 Hakman, Nathan, 176 Hall, Matthew E. K., 11, 71, 77, 143, 160, 161, 257 Hall, Melinda Gann, 240 Hamilton, Alexander, 9, 27, 122, 145, 154 Hammond, Phillip E., 211 Hammond, Thomas, 21, 109, 179 Hansford, Thomas G., 63, 155 Hardwick, Michael, 129, 188 Harlan, John Marshall, 35, 45 Harvey, Anna, 63, 72 Hausegger, Lori, 68, 81 Haynie, Stacia, 230, 254 Haynsworth, Clement, 44 Heberlig, Eric S., 116 Heclo, Hugh, 106, 109 Heilbron, John, 90 Hendershot, Marcus E., 48, 147, 185, 247 Herbeck, Dale, 59, 136, 196 Hettinger, Virginia, 214, 215, 222, 225, 226, 235, 239 Hibbing, John R., 241 Hickman, Kristin, 112 Hoekstra, Valerie, 150 Hoff, Derek S., 68, 175 Hoff, Joan, 68 Hoffer, Peter Charles, 20, 180 Holmes, Oliver W., 34, 175, 198 Horowitz, Donald, 19, 107, 108, 173, 198, 210, 237 Howard, J. Woodford, 223–227, 232, 241, 246 Howard, Robert, 7, 120, 142, 165 Howe, Amy, 138 Howell, William G., 52, 64 Huber, Gregory, 240 Hughes, Charles E., 13 Hull, N.E.H., 20, 180 Humphrey, Hubert, 31

308

Name Index

Hurwitz, Mark S., 48, 147, 185 Hutchinson, Dennis J., 49

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Ianos, 214, 215 Ignagni, Joseph, 5, 68, 72 Irons, Peter H., 22 Jackson, Andrew, 39, 58 Jackson, Donald W., 212, 213 Jackson, Robert H., 25, 88, 137, 223, 245, 260, 264 James, LeBron, 122 Janus, 129, 134, 137, 147, 148, 154, 155, 160, 163, 214, 215, 250 Jay, John, 13 Jefferson, Thomas, 39, 58, 147 Jeffries, John C., Jr., 185 Jelen, Ted, 198 Jenkins, John, 189 Johnson, Charles, 14, 22, 39, 211, 218, 231, 235, 237, 244 Johnson, Lyndon B., 35, 40, 43, 49, 66 Johnson, Timothy R., 20, 40, 131, 132, 179–181, 183, 188, 189, 215 Johnston, Christopher D., 11, 138, 141 Kafka, Franz, 95, 201 Kagan, Elena, 35, 91, 166 Kaheny, Erin, 188 Kahn, Ronald, 155 Kalman, Laura, 32 Kamoie, Brian, 50, 58, 117, 206 Kastellec, Jonathan P., 217, 228, 229, 231, 245, 251 Katzmann, Robert A., 71 Keck, Thomas M., 20, 65, 113, 146, 162, 263 Kellough, J. Edward, 108 Kendall, David, 190 Kennedy, Anthony, 10, 12, 35, 49, 100, 131–134, 151, 158, 172 Kennedy, John F., 35, 39, 49, 66 Kens, Paul, 175 Kernell, Samuel, 31, 44 Kerr, Orin S., 113 Kiewiet, D. Roderick, 106 King, Chad, 81 Klarman, Michael, 130–133, 157, 158, 262 Klein, David E., 221, 222, 224–227, 229–231, 236, 238, 241, 242, 244

Kluger, Richard, 39, 210, 212 Knight, Jack, 10, 14, 21, 40, 68, 72, 135, 145, 178, 180, 189, 215 Knowles, Helen, 151 Kobylka, Joseph F., 168, 187, 197, 201, 230 Konvitz, Milton, 153 Kornhauser, Lewis, 220 Kort, Fred, 5 Kosaki, Liane, 131, 154, 155, 157 Kosinski, Douglas, 234 Krause, George A., 52 Krehbiel, Keith, 33, 36, 43, 54, 257 Krislov, Samuel, 187 Kritzer, Herbert M., 5, 230 Krueger, Matthew, 112 Krutz, Glen S., 52 Kuersten, Ashlyn, 188 Labbe, Ronald, 175 Lain, Corrina Barrett, 159 Landes, Elizabeth, 250 Landes, William, 22, 210 Landsberg, Brian, 136, 213, 238 Lanier, Drew Noble, 48, 147, 185, 247 Lauderdale, Benjamin E., 4 Lawrence, John, 132, 188 Lawson, Kay, 18 Lee, Rex, 192, 193, 202, 205 Lemos, Margaret H., 115, 118, 119 Lempert, Richard, 246 Leo, Richard A., 254 Lerner, Max, 133 Lerner, Ralph, 156 Leuchtenburg, William, 19, 33, 37 Levy, Mark, 191 Lewis, Anthony, 180 Lincoln, Abrabram, 259 Lindquist, Stefanie A., 89, 214, 215, 217, 218, 222, 225, 226, 229, 230, 235, 239, 242 Locke, John, 45 Long, Carolyn, 60, 61, 153, 180, 211, 254, 255 Long, J. Scott, 7 Lovell, George, 71 Lowery, David, 106 Lowi, Theodore J., 104, 106, 107, 109, 123, 155, 174 Lowy, Peter A., 112, 113 Lurie, Jonathan, 175 MacDonald, Jason, 104, 105 MacKuen, Michael, 7, 150

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Name Index Madison, James, 34 Madonna, 122 Malachowski, James, 106 Maltz, Earl M., 20, 146 Maltzman, Forrest, 9, 15, 19, 21, 50, 52, 58, 81, 117, 118, 136, 179, 206 Mann, Thomas, 63 Manning, Kenneth, 39, 136, 150, 161, 217 Mapp, Dollree, 188 Marbury, William, 39 Marshall, Bryan W., 5, 10, 14–16, 22, 26, 32, 39, 47, 52, 63–65, 73–75, 77, 78, 84, 111, 112, 137, 140, 141, 149, 173, 226, 256 Marshall, John, 13, 14, 34, 39, 147 Marshall, Thurgood, 35, 49, 129, 211 Martin, Andrew D., 4,7, 10, 68, 72, 73, 77, 78, 131, 132, 141, 145, 150 Martin, Fenton, 122, 128 Martinek, Wendy, 215, 220–222, 225, 226, 235, 236, 239–241 Mason, Alpheus T., 59, 101 Maurer, Randi, 129, 130 Maveety, Nancy, 151 Mayer, Kenneth, 47, 52 Mayhew, David R., 62, 89, 107, 122, 146, 162, 173 McCann, Michael W., 158, 173 McCloskey, Robert, 18, 33, 137, 146, 147, 149, 175, 176 McConnell, Grant, 106, 109 McCool, Daniel, 106, 174 McCorvey, Norma, 184, 188 McCree, Wade, 190 McCubbins, Mathew, 63, 79, 104, 106, 109, 219 McFarland, Andrew, 109 McGuire, Kevin T., 11, 41, 138, 149, 184, 188, 189 McKenna, Marian C., 37, 47, 147 McLauhlan, Scourfield, 72, 116 McNollgast, 221 Meernik, James, 68, 72 Meese, Edwin, 38, 251 Meier, Kenneth, 96, 98, 103–108, 123 Meltzer, Daniel J., 71 Metrailer, Rosemary, 136, 172, 177, 195, 196, 211, 213, 224, 225 Mica, John, 121 Miers, Harriet, 166 Miller, Mark, 70, 240

309

Miranda, Ernesto, 188, 235 Mishler, William, 149, 150, 188 Moe, Terry, 64, 106, 109, 219 Mondak, Jeffrey, 140 Montesquieu, Charles-Louis de Secondat, 46, 122, 123 Muir, William, 211 Muraskin, Matthew, 182 Murphy, Walter F., 14, 20, 32, 51, 61, 62, 71, 81, 88, 179 Murray, Alan, 174 Nathan, Richard, 99, 109 Nelson, Blake J., 15 Nelson, Michael, 95, 101, 104, 105, 122 Nelson, William E., 13, 14, 39 Newmyer, R. Kent, 14, 34, 147, 175 Newsom, Kevin, 240 Newton, Jim, 20 Nicholson, Stephen, 142 Nixon, David, 120, 165 Nixon, Richard, 31, 32, 34–37, 40, 43–45, 49, 151, 196, 200, 263 Norman-Major, Kristen, 191, 193 Norpoth, Helmut, 149 Obama, Barack, 8, 12, 35, 44, 122133, 144, 165 O’Brien, David, 34, 61, 154, 161 O’Connor, Sandra Day, 35, 36, 71, 144, 151, 166, 185, 251 Ornstein, Norman, 63 Owens, Ryan J., 10, 41, 42, 115, 135, 182, 189, 190, 193, 202, 207, 235 Pacelle, Richard L., Jr., 5, 6, 9–11, 15, 16, 18, 19, 22, 26, 32–34, 38–43, 45, 47–50, 52–54, 58–60, 63–68, 72–75, 77, 78, 84, 89, 101, 102, 110–112, 115, 117, 118, 122, 127, 130, 135–137, 140, 141, 146, 147, 149, 155, 162, 169, 172, 173, 176–179, 181–185, 187, 189–193, 195–199, 201, 202, 205, 207, 210, 216, 220, 225, 226, 230, 231, 234–237, 247, 250, 251, 254, 256, 257 Palmer, Barbara, 184 Parker, Glenn, 62, 82, 173 Patterson, James, 200, 212–214, 238 Patterson, Steve, 121 Pauley, Garth, 49

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310

Name Index

Peake, Jeffrey S., 52 Peltason, Jack W., 210–213, 225, 238 Percival, Robert V., 92, 93 Peretti, Terri Jennings, 20 Perry, Barbara, 198 Perry, H.W., Jr., 11, 15, 38, 41, 42, 92, 129, 178, 180–182, 191, 209, 219, 228, 231, 232, 234, 235, 245 Perry, Michael, 241 Peters, Shawn Francis, 60, 177 Peterson, Mark, 88 Pickerill, J. Mitchell, 68, 72, 81 Pietruszkiewicz, Christopher, 111, 112 Plato, 122 Poole, Keith, 4, 6 Porter, Mary C., 241 Posner, Richard, 22, 210, 222, 223, 250 Powe, Lucas A., Jr., 14, 20, 31, 61, 140, 145, 147, 172, 175, 176, 200, 224, 256 Powell, Lewis, 35, 45, 130, 131, 185 Pritchett, C. Herman, 32, 40, 46 Puro, Stephen, 189 Quinn, Kevin M., 7, 150 Quirk, Paul, 52, 109 Rabin, Robert, 111 Rabkin, Jeremy, 108 Rasmusen, Eric, 258 Reagan, Ronald, 21, 34–36, 38, 43, 49, 52, 58, 67, 216, 234 Reddick, Malia, 238 Rehnquist, William H., 13, 19, 21, 22, 35, 45, 166, 249, 251, 255, 263 Reichley, A. James, 31 Reid, Traciel V., 218 Reynolds, W. Bradford, 234 Richards, David A., 131, 132 Richards, Mark J., 5, 230 Richman, Barak, 73, 179 Ringquist, Evan, 108, 109 Roberts, Alasdair, 99 Roberts, John G., Jr., 11–13, 35, 65, 94, 114, 135, 144, 198, 263 Roberts, Owen, 37 Robson, William A., 108 Roe, Jane, 184, 188 Rogers, James, 66, 73 Rohde, David, 21, 136

Rom, Mark, 8, 12 Roosevelt, Franklin D., 14, 33, 36, 37, 48, 58, 59, 69, 101, 110, 147, 176 Roosevelt, Theodore, 34, 176 Rosen, Daniel, 182 Rosenberg, Gerald, 158, 159, 173, 210, 224, 237 Rosenbloom, David, 98 Rosenof, Theodore, 146 Rosenthal, Howard, 4, 6 Rossi, Jim, 118, 127 Rourke, Francis E., 106 Rutledge, John, 13 Sabato, Larry J., 166 Sager, Lawrence, 68, 81 Salokar, Rebecca Mae, 10, 41–43, 50, 115, 135, 189, 191, 192, 201, 206, 235 Sanders, Francine, 231, 244 Scalia, Antonin, 35, 94, 131–133, 161, 185, 255 Schattschneider, E.E., 151 Schauer, Frederick, 5 Schick, Marvin, 182 Schlozman, Kay Lehman, 153 Schmidhauser, John R., 70 Scholz, John T., 91 Schnapper, Eric, 191, 192 Schubert, Glendon, 5, Schwartz, Bernard, 45, 146, 175, 176 Schwartz, Thomas, 63, 79, 104, 106, 109, 219 Scigliano, Robert, 32, 46, 53, 54, 147 Scourfield McLauchlan, Judithanne, 72, 116 Scylla, 253, 261–264 Segal, Jeffrey, 4, 5, 7, 9, 16, 22, 34, 36, 44, 48, 50, 53, 65, 80, 83, 143, 149, 150, 158, 162, 175, 178, 179, 189, 193, 206, 218– 220, 232, 244, 245, 256, 258 Seinfeld, Jerry, 209 Selden, Sally Coleman, 108 Sexton, John, 178 Shafritz, Jay, 18 Shapiro, Carolyn, 231 Shapiro, David L., 71 Shapiro, Martin, 101, 103–105, 110, 111, 120, 230 Sheehan, Reginald S., 21, 149, 150, 179, 188, 218, 225

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Name Index Shefter, Martin, 82, 143 Shepsle, Kenneth, 64 Sherbert, Adeil, 59, 60 Shesol, Jeff, 37, 49, 147, 175, 176 Sheyen, Elizabeth, 131 Silver, Nate, 133 Silverstein, Gordon, 32, 155 Silverstein, Mark, 36, 69 Sinclair, Barbara, 8, 10, 63, 80 Sinclair, Michael, 210 Skowronek, Stephen, 31, 101, 103 Skrentny, John, 31, 45 Slotnick, Elliot E., 21, 136 Smith, Christopher E., 18 Smith, Jean Edward, 147 Smith, Martin J., 109 Smith, Steven S., 66, 78 Smithey, Shannon Ishiyama, 140 Smolla, Rodney A., 167–169, 172, 197, 209 Solum, Lawrence, 210 Songer, Donald R., 89, 188, 217–220, 225, 244 Sorauf, Frank, 195 Sotomayor, Sonia, 35, 166 Souter, David, 34, 35, 166 Spaeth, Harold, 4, 5, 7, 9, 16, 22, 65, 80, 150, 175, 178, 179, 189, 232, 256 Spencer, Herbert, 175 Spill Solberg, Rorie L., 116 Spiller, Pablo T., 73, 179 Spitzer, Matthew L, 118 Spriggs, James F., II., 21, 120, 121, 155, 179, 181, 188 Starr, Kenneth, 190 Steigerwalt, Amy, 10, 38, 69, 78, 143, 162, 177, 216, 234, 236, 250 Stennis, John, 250 Stern, Seth, 36, 60, 241 Stevens, John Paul, 34, 35, 93, 94, 100, 106, 244 Stewart, Potter, 35 Stidham, Ronald, 39, 136, 150, 161, 217 Stimson, James A., 6, 7, 11, 138, 146, 148–150 Stone, Harlan F., 13, 153 Story, Joseph, 34 Stoutenborough, James W., 130, 132 Strauss, Peter, 91 Sundquist, James, 101, 146 Sunstein, Cass, 5, 6, 20, 26, 172, 173

311

Sutton, Willie, 172 Svara, James H. 98, 99 Swanson, Rick, 140 Swinford, Bill, 240 Taft, William H., 13 Tamanaha, Brian, 178, 199 Tanenhaus, Joseph, 182, 234, 235 Taney, Roger B., 13 Tarr, G. Alan, 212, 225, 226, 237, 241 Tate, C. Neal, 107 Tedford, Thomas, 59, 136, 196 Teger, Stuart, 234 Teles, Steven, 177, 196, 200 Theiss-Morse, Elizabeth, 241 Thomas, Clarence, 35, 36 Tiberius, 250 Tierney, John, 153 Tiller, Emerson, 245 Timpone, Richard, 7 Tocqueville, Alexis de, 137, 154, 156, 172, 173 Toma, Eugenia, 70 Toobin, Jeffrey, 20, 65, 144 Truman, David, 174 Truman, Harry, 34 Tushnet, Mark, 20, 49, 155, 185 Ubertaccio, Peter N., III. , 10, 41, 115, 192 Ulmer, S. Sidney, 5, 166, 182, 184, 185, 234 Urofsky, Melvin I., 146 Vallinder, Torbjorn, 107 Vanberg, Georg, 23, 68 Vasquez, Juan F., Jr., 112, 113 Vermeule, Adrian, 91, 92, 94, 100 Verrilli, Donald, 10 Vining, Richard L., Jr., 149–151, 161 Vinson, Fred M., 13 Vose, Clement, 172, 174, 176, 177 Wahlbeck, Paul J., 5, 21, 136, 172, 179, 181, 188 Waite, Morrison R., 13 Walker, Jack, 103 Walker, Samuel, 6, 176, 177, 196, 225 Walker, Thomas G., 80, 175, 232, 239 Wallace, George, 31 Wallace, Lawrence, 191, 198

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312

Name Index

Waltenburg, Eric N., 240 Ware, Leland, 211 Warren, Earl, 13, 34, 36, 44, 61 Wasby, Stephen L., 5, 136, 168, 169, 172, 174, 176, 177, 187, 195– 197, 200, 201, 211, 213, 224, 225, 237, 238, 239 Washington, George, 135 Waterman, Richard W., 106, 109 Waxman, Seth, 190, 191 Weinberg, Philip, 91 Wermiel, Stephen, 36, 60, 241 West, William, 105 Westerland, Chad, 4, 218–221, 227, 228, 236, 244, 245, 258, 259 Whitaker, Charles, 35 White, Brandon, 135 White, Bryon, 35, 49, 130 White, Edward D., 13 White, G. Edward, 34

Whittington, Keith, 20, 26, 52, 53, 65, 140, 157, 172 Wilkins, Richard, 190 Wilkinson, Harvie, 169, 209 Wilson, James Q., 108, 127 Wohlfarth, Patrick C., 6, 11, 42, 43, 52, 53, 114, 117, 141, 149, 151, 202, 206, 250 Wolbrecht, Christina, 141 Wolfe, Christopher, 19 Wood, B. Dan, 91, 106, 109, 149 Worsham, Jeff, 108, 109 Wright, John R., 186 Yarbrough, Tinsley E., 20, 34, 151, 185 Yates, Jeff, 36, 106, 146, 240 Yoon, Albert, 244 Zelditch, Morris, Jr., 18