Deciding to Decide: Agenda Setting in the Courts

Micro Level Theory vs. Macro Level Micro Level Theory vs. Macro Level TheoryTheory

The focus is on the The focus is on the individual decision individual decision makermaker

Liberal or Liberal or conservative conservative dimension (expanding dimension (expanding or limiting rights)or limiting rights)

Decisions based on Decisions based on individual ideology individual ideology and what they prefer and what they prefer to doto do

Liberal judges stay Liberal judges stay liberal in all aspects, liberal in all aspects, as conservative as conservative judges stay judges stay conservativeconservative

• The focus is on the influence of the group, institution, or environment

•Analysts must take into consideration the collegial influences of the judges as a collective group

•Also consider the extent to which the Constitution must be upheld, legal limits, and possible actions

•Must look into environmental issues, such as whether the nation is at war, political, social, and economic conflict.

•Take into account public opinion, but do not always make a point to represent it

Three functions that are the Three functions that are the basis of decisions are:basis of decisions are:

What they prefer to doWhat they prefer to do What they ought to doWhat they ought to do What they perceive is feasibleWhat they perceive is feasible

Thus, each judges’ decision is based Thus, each judges’ decision is based on their individual values, what the on their individual values, what the nation needs at the time, and what the nation needs at the time, and what the governmental action can actually governmental action can actually achieve.achieve.

What is the cue theory?What is the cue theory? Used to explain certiorari Used to explain certiorari

decisions of the Supreme decisions of the Supreme CourtCourt

Justices rely on “cues” as Justices rely on “cues” as to which cases actually to which cases actually deserve more scrutinydeserve more scrutiny

Most influential cue is from Most influential cue is from the Solicitor General who the Solicitor General who prompts which cases are prompts which cases are most worthy of most worthy of considerationconsideration

Amicus Curiae Briefs play a Amicus Curiae Briefs play a key role. Ex ACLU, NAACPkey role. Ex ACLU, NAACP

Restraintism vs. ActivismRestraintism vs. Activism•Subordination of precedents and statutes

•Deference to personal attitudes, values, and goals

•Based on the idea that judges make laws

•Interpretation solves problems not considered or addressed by the legislature

•“The question comes up, and you decide it.” – you don’t wait for the legislature

•Decisions strongly predictable from the individual attitudes

•Follow precedents•Strict construction to the constitution•Deference to legislative “intent”•Restraintist judges stick closely to the constitution and are averse to interpreting the Constitution as how it “ought to be”•Decisions are strongly predictable as they must be in line with the literal Constitution•These judges also show great divergence in their votes from their political values, as they feel their values should not interpret the constitution.

Constructional ConstraintsConstructional Constraints Must satisfy both formal and informal Must satisfy both formal and informal

institutionsinstitutionsInstitutional ConstraintsInstitutional Constraints

Rule of Four Chief Justice sets the tone Must deal with the law, precedents and Constitution Justices interact as a group

Environmental ConstraintsEnvironmental Constraints

The structure of political, economic, and The structure of political, economic, and social conflict or war have much to do social conflict or war have much to do with the cases coming to the court.with the cases coming to the court.

Judges are not expected to respond Judges are not expected to respond directly to public opinion, but they are directly to public opinion, but they are in line with the public 60% of the time.in line with the public 60% of the time.

Interest groups play a major role in the Interest groups play a major role in the deliberations of judges as amicus curiae deliberations of judges as amicus curiae participants.participants.

Blue: Total cases on docket    Blue: Total cases on docket    

Red: Number of cases acted upon Red: Number of cases acted upon

Granting CertiorariGranting Certiorari

Presumption against granting certPresumption against granting cert

1. So little time, so many cases: 1. So little time, so many cases: Court will be selectiveCourt will be selective

2. All cases are fungible: issues are 2. All cases are fungible: issues are important, not casesimportant, not cases

Judging a Case UncertworthyJudging a Case Uncertworthy

““Nut cases”Nut cases” FrivolousFrivolous Clear DeniesClear Denies Lack of percolationLack of percolation Bad Facts=Bad VehicleBad Facts=Bad Vehicle PipelinePipeline IntractabilityIntractability

Judging a Case CertworthyJudging a Case Certworthy Circuit ConflictCircuit Conflict Importance (one of a kind, societal impact- Importance (one of a kind, societal impact-

serious question of constitutional law, civil serious question of constitutional law, civil liberties)liberties)

Impacts many peopleImpacts many people Solicitor General’s encourages acceptanceSolicitor General’s encourages acceptance Public pressurePublic pressure Justice’s interestJustice’s interest Flagrant abuses of justiceFlagrant abuses of justice Presence of amicus curiae briefsPresence of amicus curiae briefs

Factors that limit cases heard by Factors that limit cases heard by Supreme CourtSupreme Court

Most cases previously Most cases previously heardheard

Congress has power to Congress has power to limit court’s limit court’s jurisdictionjurisdiction

Court will not answer Court will not answer moot questionsmoot questions

Parties have standing Parties have standing to sueto sue

Case must be ripeCase must be ripe

Court will not answer Court will not answer political questionspolitical questions

Rule of FourRule of Four Court will not accept Court will not accept

local issueslocal issues Cases fails to answer Cases fails to answer

serious questions of serious questions of constitutional lawconstitutional law

Expensive and Expensive and emotional to take a emotional to take a case all the waycase all the way

Discuss ListDiscuss List Internal mechanism to handle the large caseload.Internal mechanism to handle the large caseload. The chief justice circulates a “discuss list” of The chief justice circulates a “discuss list” of

cases he deems worthy of discussion.cases he deems worthy of discussion. Justices may add a case to the list. Each case Justices may add a case to the list. Each case

presented to the Court is still reviewed in each presented to the Court is still reviewed in each justice's chambers, but only those cases on the justice's chambers, but only those cases on the discuss list are talked about at the justices' discuss list are talked about at the justices' regular conference. regular conference.

Approximately 30 percent of the filed cases reach Approximately 30 percent of the filed cases reach the discuss list. The remaining requests for the discuss list. The remaining requests for review are rejected, without further review are rejected, without further consideration. consideration.

Discuss ListDiscuss List

Justices will place cases on the Court’s discuss list when the lower court’s decision, the status quo, is contrary to their preferences.

Scholars have identified two dimensions to using the docket-selection process as agenda setting: 1) Justices seek cases that they can use to

advance their policy goals; 2) Justices strategically seek cases where the

Court will render favorable decisions.

americandemocracy.nd.edu/workshops/documents/Schoendiscusslists.pdf

Justices Listing CasesJustices Listing CasesJustice Number of Percent of Percent of total Justice Number of Percent of Percent of total cases listed cases listed during tenurecases listed cases listed during tenure 1985-19931985-1993

William H. RehnquistWilliam H. Rehnquist 5,035 60.1 60.1 (1985-1993) 5,035 60.1 60.1 (1985-1993)(Associate Justice) 19 1.6 (1985)(Associate Justice) 19 1.6 (1985)(Chief Justice) 5 ,016 69.8 (1986-1993)(Chief Justice) 5 ,016 69.8 (1986-1993)Warren E. BurgerWarren E. Burger 819 9.8 68.8 (1985) 819 9.8 68.8 (1985)Byron R. White 1,043 12.5 13.3 (1985-1992)Byron R. White 1,043 12.5 13.3 (1985-1992)John Paul Stevens 477 5.7 5.7 (1985-1993)John Paul Stevens 477 5.7 5.7 (1985-1993)Sandra Day O’Connor 368 4.4 4.4 (1985-1993)Sandra Day O’Connor 368 4.4 4.4 (1985-1993)

William J. Brennan, Jr. 216 2.6 4.3William J. Brennan, Jr. 216 2.6 4.3 (1985-1989) (1985-1989)Harry A. Blackmun 214 2.6 2.6 (1985-1989)Harry A. Blackmun 214 2.6 2.6 (1985-1989)Antonin Scalia 129 1.5 1.8 (1986-1993)Antonin Scalia 129 1.5 1.8 (1986-1993)Anthony M. Kennedy 34 0. 4 0.6 (1987-1993)Anthony M. Kennedy 34 0. 4 0.6 (1987-1993)Thurgood Marshall 19 0.2 0.3 (1985-1990)Thurgood Marshall 19 0.2 0.3 (1985-1990)Ruth Bader Ginsburg 12 0.1 2.2 (1993)Ruth Bader Ginsburg 12 0.1 2.2 (1993)Lewis F. Powell 7 0. 0 0.3 (1985-1986)Lewis F. Powell 7 0. 0 0.3 (1985-1986)David H. Souter 2 0. 0 0.1 (1990-1993)David H. Souter 2 0. 0 0.1 (1990-1993)Clarence Thomas 1 0.0 0.0 (1991-1993)Clarence Thomas 1 0.0 0.0 (1991-1993) Total 8,378 100.0 Total 8,378 100.0

The Impact of Judicial PoliciesThe Impact of Judicial Policies Policies that have had significant effects Policies that have had significant effects

on “society as a whole” includes:on “society as a whole” includes:

The courts’ role in developing a policy of racial The courts’ role in developing a policy of racial equality: segregation, busing, employment, equality: segregation, busing, employment, reverse discriminationreverse discrimination

Legislative reapportionmentLegislative reapportionment

In 1962, Supreme Court ruled that malapportionment In 1962, Supreme Court ruled that malapportionment presented a judicial question during the presented a judicial question during the Baker v. CarrBaker v. Carr decision, which eventually called for reapportionment decision, which eventually called for reapportionment as the remedy.as the remedy.

(Impact continued…)(Impact continued…) Criminal due processCriminal due process

Judicial policy-making in this area is most closely Judicial policy-making in this area is most closely associated with the Warren Court period.associated with the Warren Court period.

Mapp v. OhioMapp v. Ohio extended the exclusionary rule, which extended the exclusionary rule, which had applied to the national government for a number had applied to the national government for a number of years, to the states.of years, to the states.

Required state courts to exclude from trials evidence Required state courts to exclude from trials evidence that had been illegally seized by the police.that had been illegally seized by the police.

Gideon v. WainwrightGideon v. Wainwright decision held that indigent decision held that indigent defendants must be provided attorneys when they go defendants must be provided attorneys when they go to trial in a felony case in the state courts.to trial in a felony case in the state courts.

Miranda v. ArizonaMiranda v. Arizona went a step further when the went a step further when the Supreme Court ruled that police officers must advise Supreme Court ruled that police officers must advise suspects taken in to custody of their constitutional suspects taken in to custody of their constitutional rights.rights.

AbortionAbortion The Court’s decision in The Court’s decision in Roe v. WadeRoe v. Wade concerning concerning

abortion was naturally controversial. Later courts abortion was naturally controversial. Later courts would modified abortion guidelines (Planned would modified abortion guidelines (Planned Parenthood v Pennsylvania)Parenthood v Pennsylvania)

(Impact Continued…)(Impact Continued…)

Religion: Again, judicial policy-making in Religion: Again, judicial policy-making in this area is closely related to the Warren this area is closely related to the Warren Court. Most decisions were tied to public Court. Most decisions were tied to public schools, but later cases would address schools, but later cases would address religion in the workplace, Sabbath, and religion in the workplace, Sabbath, and religious practicesreligious practices

Policies of Past Courts

Hughes’ Court 1930-1941Evolution and Revolution

Sitting l. to r.: McReynolds, Holmes, Hughes, Van Devanter, Brandeis. Standing l. to r.: Stone, Sutherland, Butler, Roberts

The JusticesThe JusticesThe Four Horseman The Four Horseman Swingman Swingman

SympatheticSympatheticSutherland, ButlerSutherland, Butler

McReynolds, Van DevanterMcReynolds, Van Devanter

Brandeis Stone

Cardozo

Hughes

Roberts

FDR and the Court Packing PlanFDR and the Court Packing Plan

FDR’s response to the Great FDR’s response to the Great Depression was the growth of the Depression was the growth of the federal government that would federal government that would regulate business, labor laws, child regulate business, labor laws, child labor, minimum wage, and job labor, minimum wage, and job programs.programs.

Court rules that the New Deal Court rules that the New Deal programs violates the 10programs violates the 10thth AmendmentAmendment

Impact of the Hughes CourtImpact of the Hughes Court

Considered the first modern court because Considered the first modern court because of its deference toward economic of its deference toward economic legislation and the vigorous guardianship legislation and the vigorous guardianship of personal libertiesof personal liberties

Famous footnote 4 in US v Carolene Famous footnote 4 in US v Carolene Products, 1937- more exacting judicial Products, 1937- more exacting judicial scrutiny under provisions of 14scrutiny under provisions of 14thth Amend. Amend.

Incorporates press, assembly, free Incorporates press, assembly, free exerciseexercise

Right to attorney in death penalty casesRight to attorney in death penalty cases

Warren Court 1953-1969Warren Court 1953-1969

The Warren Court, 1966

Back row, L to R: Justices White, Brennan, Stewart, Fortas

Front Row, L to R: Justices Clark, Black, Warren, Douglas, Harlan

Two Warren CourtsTwo Warren Courts

1953-1962- 1953-1962- Brown v Topeka Bd of EdBrown v Topeka Bd of Ed, , and national security cases, and political and national security cases, and political reaction to court’s decision, procedural reaction to court’s decision, procedural fairness in governmental processfairness in governmental process

1962-1969- Firmly in the hands of the 1962-1969- Firmly in the hands of the liberals and centered on individual liberals and centered on individual freedomsfreedoms

18 justices served during this 16 year 18 justices served during this 16 year periodperiod

““Worse Damn Mistake I Ever Made”Worse Damn Mistake I Ever Made”

Warren Court moves to the left:Warren Court moves to the left: Brown v Board of EducationBrown v Board of Education Baker v Carr Baker v Carr One man, one voteOne man, one vote Rights of the Accused Extended:Rights of the Accused Extended:

1. Gideon v Wainwight1. Gideon v Wainwight

2. Miranda v Arizona2. Miranda v Arizona

3. Mapp v Ohio3. Mapp v Ohio

Burger Court, 1969-1986Burger Court, 1969-1986 Sitting l. to r.: Harlan, Black, Burger, Douglas, Brennan.Sitting l. to r.: Harlan, Black, Burger, Douglas, Brennan.

Standing l. to r.: Marshall, Stewart, White, BlackmunStanding l. to r.: Marshall, Stewart, White, Blackmun

The Burger Court 1969-1986The Burger Court 1969-1986

Began to narrow Began to narrow the rights of the the rights of the accused that were accused that were won in the Warren won in the Warren Court.Court.

Most noted for Roe Most noted for Roe v Wade and US v v Wade and US v NixonNixon

Extended rights for Extended rights for womenwomen

Rehnquist Court, 1986-2005Rehnquist Court, 1986-2005

Sitting l. to r.: O'Connor, Blackmun, Rehnquist, Stevens, Scalia. Standing l. to r.: Thomas, Kennedy, Souter, Ginsburg.

Radical Revision of Constitutional Radical Revision of Constitutional LawLaw

Chipped away at Chipped away at liberal decisions, liberal decisions, such as, abortion such as, abortion rights and rights and affirmative action. affirmative action. Overturned cases Overturned cases which extended the which extended the Congress’ commerce Congress’ commerce powerpowerDecline in number of Decline in number of casescases

Supreme Court justices are as independent as hogs on ice. You can't herd them.

Impact of Rehnquist CourtImpact of Rehnquist Court

Strict Construction- Rehnquist, Scalia, Strict Construction- Rehnquist, Scalia, Thomas (Sometimes Kennedy and Thomas (Sometimes Kennedy and O’Connor)O’Connor)

Loose Construction- Brennan, MarshallLoose Construction- Brennan, Marshall 1992-2002 Court overturns more 1992-2002 Court overturns more

Congressional statutes that any other Congressional statutes that any other court with the exception of the 17 years of court with the exception of the 17 years of Burger’s court (Burger’s court (Court activismCourt activism))

Rolling back the commerce clause and Rolling back the commerce clause and supporting states’ rights US v Lopez and supporting states’ rights US v Lopez and

US v MorrisonUS v Morrison

CreditsCredits

DecidingDeciding toto DecideDecide: Agenda Setting in the United States Supreme Court: H.W., Jr. : Agenda Setting in the United States Supreme Court: H.W., Jr. PerryPerry: Books: Books

Lessons for important cases: Mapp, Gideon, Brown, Korematsu, Miranda, MuCulloch, Texas v Lessons for important cases: Mapp, Gideon, Brown, Korematsu, Miranda, MuCulloch, Texas v Johnson, Roe v Wade, US v Nixon can be found at http://www.landmarkcases.org/index.htmlJohnson, Roe v Wade, US v Nixon can be found at http://www.landmarkcases.org/index.html

Flag cases-Lesson http://www.getty.edu/education/for_teachers/curricula/dorothea_lange/Flag cases-Lesson http://www.getty.edu/education/for_teachers/curricula/dorothea_lange/lange_lesson04.htmllange_lesson04.html

Photos of court- Supreme Court Historical SocietyPhotos of court- Supreme Court Historical Society

““Decision Making in Appellate Courts”Decision Making in Appellate Courts”by James L Gibsonby James L Gibson