The Supreme Court and the South

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The Supreme Court and the South

Karen O’ConnorAmerican University

In late 2000, the full import of the role of the Supreme Court in the politicalsystem was realized when, by the narrowest of margins, five Justices effec-tively decided the outcome of the November presidential election. In a casethat presented the Court with issues of states rights, the proper role of thefederal judiciary, and even the meaning of the Fourteenth Amendment, the re-putedly judicial activist adverse majority failed to see the irony of ruling thatthe Florida Supreme Court had incorrectly interpreted Florida law.1 Bush v.Gore (2000), which originated in a Southern state, had impact far beyond thestate of Florida and highlighted the highly political role of federal courts, espe-cially the Supreme Court. Clearly, the Supreme Court of the United States cannever again be referred to as the “least dangerous branch of government.” Thereis no question that the Court can disturb the political “equilibrium by injectingnew or rediscovered social problems or policy alternatives into the nationaldialogue” (Flemming, Bohte, and Wood 1997, 1247). While de facto selectionof a president is not per se a policy alternative, a whole host of policies fromabortion to education to taxes, as well as the future composition of the Court,will be affected by the Court’s decision in Bush v. Gore.

This decision in many ways crystallized my general level of discomfort withthe state of judicial politics research. As a student of constitutional law, I be-lieved that many in the judicial politics subfield had traded an understanding inthe richness of the output of the courts for the opportunity to explain whydecisions already made were made without much attention to the actual politicsof the Court or the implications of its output. The creation and distribution ofthe U.S. Supreme Court Judicial Database, which includes 40 fields of infor-

I thank Robert Boucher and Michael Morey at American University for their invaluable assis-tance and Gregg Ivers for his helpful comments on an earlier version of this paper.

1 This case was decided after the original version of this address was presented but is included tounderscore my point.

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mation about each Supreme Court decision, provides scholars with an impor-tant data set, but it hastened a trend away from the study of—at least in termsof the major journals—what I see as the politics surrounding much judicialdecision making. Today, I hope to begin a dialogue with judicial scholars andurge them to rediscover the politics inherent in the judicial process. To high-light many of the potentially fruitful areas of inquiry left for judicial scholars, Iexamine some unexplored or under explored areas through the lens of the ne-glected role of the South in setting the agenda of the Supreme Court of theUnited States. From cases involving school desegregation, to the death penalty,to abortion, and even to the election of George W. Bush, politics has permeatedthe Court’s decisions to accept cases for review and how to decide them. Andoften the vehicles for making these major pronouncements come from the South.

Writing in the Journal of Politics, noted constitutional scholar Carl BrentSwisher observed that although “the work of the Supreme Court does not lenditself well to territorial division,” (1948, 282) some cases were peculiar to theSouth. Using the word “peculiar” over and over in much the same way as Ken-neth Stamp (1989), who wrote adroitly about the South’s “Peculiar Institution,”Swisher discussed broad classes of cases including criminal defendants’ rights—particularly those of African Americans—economic regulation, and issues deal-ing with states rights in the federal system. Swisher underscored that constitutionalprovisions were, by their very nature, applicable to all of the states and to all ofthe citizens therein, but that some, especially the “guarantees of the Fourteenthand Fifteenth Amendment,” appeared to generate the most cases from the South.Certainly, I believe that most of us would adhere to his conclusions as conven-tional wisdom applying to a certain period of Southern history, yet he offeredno quantitative data to support his supposition.

In a series of two conferences held in the 1980s, the role of the South inAmerican constitutional law again was addressed. In a 1983 conference held atthe University of Southern Mississippi, a wide array of scholars addressed thecontinued paucity of scholarly recognition of the role of law in the develop-ment of the South (Bodenhamer and Ely 1984). Through a series of cases be-ginning with the constitutional revolution of 1937, the Supreme Court, andthen many Southern federal courts, forced national policy mandates on the re-sistant states in the area of economic policies, including child labor laws. Soon,civil rights cases involving school desegregation and public accommodationsand cases involving criminal defendants’ rights, and others, were to percolatetheir way through the federal system. The Southern states were breeding grounds,if you will, for myriad cases challenging the authority of the federal govern-ment to regulate business and the economic sphere as well as the denials ofbasic rights guaranteed to citizens of other states. These cases often resulted indecisions that, once made, had enormous consequences on the rest of the land,giving the South a role much like that of long-term Southern Democrats whoonce chaired most major committees in the House and the Senate. Further “studyof the law and legal traditions” (Bodenhamer and Ely 1984, vii) in cases such

702 Karen O’Connor

as these could, said the conference conveners, shed valuable light on under-standing the American legal tradition.

More recently, in 1987 at the University of Florida, another conference wasconvened to assess the effect of federal constitutional decision making on theformer Confederacy. “To inquire about the place of the South in the Americanconstitutional tradition,” said Hall and Ely, was to “probe more generally forthe sinews of authority in the federal system”(1989, 3).

The purpose of this address is to update and expand upon these earlier worksby locating and evaluating the role of the South in setting the agenda of theSupreme Court of the United States and its subsequent output in doctrinal termsin the context of the historical and potential role of the South. It also is a call tothe importance of regionalism and political culture in constitutional law andjudicial decision making. In this address, I examine the role of the South as anoriginator of Supreme Court policy making and begin or continue scholarlyexamination of the role of the law in the development of the South. I argue thatthe South’s role has been, and continues to be, key in providing vehicles for theCourt to issue major policy directives and that much judicial scholarship couldbe improved by attention to region and political culture as potentially explana-tory variables.

Certainly, a host of scholars have examined the efforts of the Warren Courtin its expansion of civil rights (Casper 1972; Cox 1968; Luban 1999), someeven noting the key role of the Southern states, albeit an obstructionist one, indefending against claims of racial discrimination in a host of areas (Kluger1976). Others have noted the role of the Court as a partner with the Kennedy0Johnson administrations as a collaborator in the federal effort to impose “liberal-elite values” of a variety of groups that were outliers to this American tradition,including the white South and rural America in general (Powe 2000). Otherscholars have noted the brave roles of federal judges who include Frank John-son (Bass 1993; Kennedy 1978; Krotoszynski 2000; Yarbrough 1981), ElbertTuttle (Bass 1996; Emanuel 1999), and the old 5th Circuit (Barrow and Walker1988; Spicer 1964), who attempted to force implementation of U.S. SupremeCourt decisions on the often recalcitrant Southern states. Of Tuttle, the ChiefJudge of the old 5th Circuit, Chief Justice Warren said, “Since the day he as-sume office, the 5th Circuit (which encompassed six states of the Old Confed-eracy) has been in the very eye of the storm” (Bass 1996). This storm was tobring about in the South major changes unforeseen by many at the time. Todaythese forces continue to allow the South to play an important and dispropor-tionate role in many policy decisions emanating from the Court. While it wasthe old 5th that blazed the trail for enforcement of civil rights laws and Su-preme Court decisions in the 1950s and 1960s, today it is its neighbor to theimmediate North, the 4th Circuit, that is center stage in providing cases for theSupreme Court’s docket.

The genesis for this paper came after I read the Supreme Court’s decisionlast term in United States v. Morrison (2000). There, a five-person majority of

The Supreme Court and the South 703

the Court used this case decided by the 4th Circuit to rule that sections of theViolence Against Women Act were unconstitutional. While the decision itselfwas not surprising, it did drive home the critical role that the 4th, much like the5th Circuit before it, appeared to be playing as the source of major cases de-cided by the Supreme Court. But instead of taking important or landmark casesto uphold or expand the rights of minorities or the criminally accused as theWarren Court did, the Rehnquist Court now seems to be accepting cases fromthe South to limit rights, an interesting question for more empirical work. Infact, in its 1999–2000 term, the Court accepted nine cases from the 4th Circuit,second only to the 9th Circuit, which is comprised of California, Oklahoma,Washington, Idaho, Montana, Arizona, Alaska and Hawaii, clearly the largestand busiest circuit by far. It also took nine cases from the 5th—an exclusivelySouthern circuit.

This is not to say, however, that the Court has taken all of those cases fromthe 4th Circuit to uphold conservative decisions. In fact, in Dickerson v. UnitedStates (2000), the Court surprised many commentators when it overruled the4th Circuit and upheld the Miranda rule, a protection that many believed hadgasped its last breath.

As is almost common knowledge (at least among political scientists), throughNovember 2000, the 4th Circuit was an all-white conservative circuit that blazedthe trail for conservative rulings. As president, Bill Clinton promised the Con-gressional Black Caucus that he would appoint an African American to thatbench. But, over a five-year period, the Senate failed to act on any of his fourAfrican-American nominees (Denniston 2001). The Senate Judiciary Commit-tee, in fact, blocked the appointment of two African Americans that Bill Clin-ton sent to it. When the Senate failed to act on his nomination of Richmondlawyer Roger Gregory, an African American, Clinton took the unusual step ofplacing Gregory on the 4th Circuit as a recess appointment, through which Greg-ory can serve without Senate confirmation until the end of the 2001 congres-sional session. Thus, in an area where the African American population of twostates is almost 20 percent, until President Clinton used a recess appointmentto name Gregory, no black sat to hear cases on appeal from North or SouthCarolina, Virginia, West Virginia, or Maryland.2 In fact, the 4th Circuit hasmore black residents—5.5 million—than any other and until Gregory’s appoint-ment was the only all-white Circuit and the last to have a black jurist (Free-man 2000).

2In 1998, the African American population for states in the 4th Circuit was as follows:Delaware 19.4%Maryland 27.8North Carolina 22.1South Carolina 29.9West Virginia 3.2Virginia 20.1


The Supreme Court and the Southas a National Policy Maker

We know quite a lot about Supreme Court judicial decision making duringthe Warren Court era (Canon 1992, Ulmer 1984) and the Burger and Rehnquisteras (Ulmer 1981). This is not a paper on how justices decide cases. Legions ofscholars have devoted considerable time to that (Calderia and Zorn 1998; Georgeand Epstein 1992; Segal and Spaeth 1996, Tate 1981). Tate and Handberg, forexample, even have attempted to control for region as an explanatory variableto explain individual Supreme Court justices’ decision making. They found thata Southern background was an important predictor of Supreme Court justices’voting behavior in civil rights and civil liberties cases, but not of voting behav-ior overall (Tate and Handberg 1991). I know of no efforts to quantitativelyassess if cases from the South were a disproportionate share of the Court’sagenda, then or today. Neither do we have any empirical assessments of theSouth’s quantitative or qualitative impact on how the Supreme Court has inter-preted the Constitution over time. As Richard J. Richardson and Kenneth N.Vines, two pioneering judicial process scholars, wrote, judicial activity is oneof “distinctive interactions” that includes several sites of interaction (1967, 598).My concern here is the role of South as a locus of producing conflicts andcontroversies that ultimately resulted in cases orally argued before the U.S. Su-preme Court during its 1953 to 1997 terms.

Region, Political Culture, and the Supreme Court

When states enjoy, in Elazar’s (1966) terminology, different political or re-gional cultures that have effects on laws and policies, the nationalizing influ-ence of the Court or other policy makers are much more likely to be felt andresented in areas out of synch with the rest of the nation. Few scholars haveattempted to test Elazar’s concepts of political culture on litigation or judicialdecision making. Political culture, what Almond and Powell define as the “setof attitudes, beliefs, and feelings about politics current in a nation at a giventime,” (1978, 25) actually has two components: (1) the political orientationsof individuals within a particular area, and (2) the “particular pattern oforientation to political action in which each political system is embedded”(Elazar 1966, 79). Regional variations in political culture thus could be ex-pected to produce different rates of both individual, private litigation, and statelitigation. Moreover, orientations toward the role of government and the properscope of state and national authority, as well as resultant beliefs about the ef-fectiveness of governmental institutions, could be related to litigation and judi-cial responses to that litigation. Many years ago, for example, Daniel J. Elazarnoted:

The very existence of federalism requires that virtually all political issues be considered withtwo questions in mind: What kinds of issues are raised in American politics because the


states exist as they do? and How are issues developed and resolved in the American politicalsystem because of the existence of states in their present form? (1966, 4–5)

Clearly, the form of the states, especially the political culture of the South, canbe taken as the direct cause of many issues that have come onto the nationalagenda. While schools in the North, for example, often were entirely segre-gated, it was the South’s usage of de jure discrimination that started the na-tional debate and eventually the dismantling of all de jure and de facto schoolsystems. Similarly, while child labor was a fact of life all over the nation, it wasthe Southern states’ pervasive use of the practice and objections to efforts onthe national level to alleviate the problem that produced the child labor cases.

In her 1987 presidential address to this association, M. Margaret Conwaynoted that researchers often fail to take “into account the effects of the legaland political environments in which individual political behavior occurs” (1989,3). If we have “learned nothing else from the research of V.O. Key,” said Con-way, “we must acknowledge that it is foolish to ignore the impact of the legaland political environments on political behavior” (Conway 1989, 3). These con-textual variables—especially that of political culture—are often difficult to mea-sure, but that is no reason not to examine them. Since, as Almond and Powellargue, political culture affects “the conduct of individuals in their political roles,the content of their political demands, and their responses to laws” (1978, 25),it is almost shocking that judicial scholars have not given much attention topolitical culture in their analyses of judicial behavior and decision making oreven public opinion and the Court. Using the U.S. Supreme Court Judicial Data-base, Kearney and Sheehan (1992) and Mishler and Sheehan (1996), however,attempted to access the impact of Court composition on state and local govern-ment litigation. They, however, were not concerned with state origin of cases,although they did control for region in their attempt to explain success rates.Not only did they find that states and local governments appeared as directparties quite frequently, reaching a high of 140 cases in 1986 (1992, 1011),states also were very successful. They found that the effect of region was de-pendent on the composition of the Court, that “additional conservative justicesmean that Southern states win a higher proportion of their cases, especiallywhen the issues involve civil rights or criminal procedure.” An earlier study ofstates as litigators in criminal cases, however, revealed that Southern states didnot enjoy the kinds of success rates enjoyed by their counterparts elsewhereunless they established a specific office to facilitate litigation efforts before theU.S. Supreme Court (Epstein and O’Connor 1988).

At least one large-scale study did try to measure the effects of political cul-ture on rates of civil litigation. Studies by the Civil Litigation Research Project(CLRP) led by Joel Grossman at the University of Wisconsin in the late 1970sthrough 1980 reveal that contrary to expectations, more traditionalistic cultures(in their study, South Carolina) actually yielded evidence of rates of civil liti-gation above the norm, yet individual households reported lower than normal


percentages of disputes filed in federal court (Grossman et al. 1982). Afterextensive study the CLRP team did not find that political culture—as definedby Elazar—explained any variations in the use of the federal courts (1996,101). In attempting to explain their findings, they concluded that perhaps Elazar’stypology as first articulated reflected two underlying dimensions: (1) beliefsregarding the role of “politics” and (2) beliefs regarding the role of govern-ments (1996, 114). Elazar’s concept of political culture, concluded Grossmanand his colleagues, was not useful because there was a third element: beliefsabout the role of the legal system. Thus, the authors basically threw up theirhands over South Carolina because they simply did not know how to explaintheir finding. The “current conceptions of political culture are too narrow infailing to tap the legal dimensions,” concluded Grossman et al. (1982, 114).Still, the inconclusive nature of their study should not preclude examining thepotential role of political culture.

Scholars from V. O. Key (1949) to more recently a new generation of South-ern politics scholars including Black (1999), Black and Black (1993, 1989),Stanley (1987), Bullock (1981), Rogers and Bullock (1972), Bullock and Ro-zell (1998), and Lublin (1997) have noted the evolving role of the South inthe national political scene whether it is in its production of presidents or thechanging political and racial composition of the U.S. Congress and all of itsresultant effects. Still, a similar inquiry has not been conducted about theSouth and the Supreme Court since Swisher’s work in 1948. It is now time toevaluate the South’s role in Supreme Court decision making and to call onscholars to include region and political culture as potential variables in theiranalyses of the courts, especially the U.S. Supreme Court. Recently, for exam-ple, Durr, Martin, and Wolbrecht (2000) noted how difficult it was to deter-mine and explain levels of public support for the Supreme Court. Noting the“infrequent and inconsistent manner in which survey organizations have que-ried attitudes toward the Court,” they attempt to offer a new approach tomeasure support for the Court. They do not, however, attempt to measureregional variation. It could be that Southerners have different attitudes aboutthe Court, but as Ely and Bodenhamer (1986) note, attempts to examine theinfluence of regionalism on the development of the law, attitudes toward thelaw, or in a particular regions’ contributions to caseload have been virtuallynonexistent.

Similarly, as the Grossman work highlights, the South—as typified by SouthCarolina—may call on us to rethink Elazar or at least to try to explain if theSouth, indeed, is different. Based on this review of the literature, however,what do we know? Historians and political scientists take it for granted that theSouth was key in generating certain kinds of cases that allowed the high courtto make policy proclamations of major import, yet we do not know if that isempirically true. Similarly, the CLRP study would lead us to believe that South-erners are more litigious, at least in bringing civil cases, but Southern authorsseem to dismiss those findings as aberrational.


Operationalization and Methods

To begin this inquiry, it is necessary to determine the role and nature ofcases generated from the South and the Court’s subsequent decisions in thosecases. Data for this study are available from the U.S. Supreme Court JudicialData Base, commonly referred to as the Spaeth data set. This database includesall cases decided by the Court in its 1953 to 1997 terms. I operationalized theSouth as the 11 states defined as “the South” by several polling agencies. As astudent of constitutional law, and not necessarily of the South, one of the mostinteresting things about this project was defining the South. Stanley and Niemi(2000) provide a variety of operationalizations of the South; from the variouscharacterizations they offered, I operationalize the South as Alabama, Arkan-sas, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina,Tennessee, Texas, Virginia, and the District of Columbia. I realize that manymay quibble with my inclusion of the District of Columbia, but as John F.Kennedy once noted in describing the District, “Washington is a city of South-ern efficiency and Northern charm” (Monsour 2000).

Not surprisingly, given the lack of focus on the South as a discrete area ofanalysis in constitutional law, the Spaeth data set is not particularly well suitedfor any kind of regional analysis. Critical to my analysis here is an examina-tion of where cases decided by the Supreme Court originate. Three federalcircuits include what I consider here as South as well as NonSouth states.Thus, a separate list of all 4th, 5th, 6th, and 8th Circuit Court of Appeals caseswas generated. The state genesis of about 80% of these cases was noted asfrom a particular state or federal district court; for those where the state oforigin was missing, I accessed each case on LEXIS to read the opinion. If thestate was not apparent from that step, the name of the case was run on NEXISto see if news accounts of the decision mentioned state genesis. Cases forwhich I could not find this information and cases from specialized courtswere excluded from analysis. This step left 6,135 cases that were decided bythe Court from 1953 to 1998.

Findings

All things being equal, one might expect that the South would generate casesin the same proportion of its population; however, the CLRP study and conven-tional wisdom about the role of the South in generating criminal rights andcivil rights cases suggests that we should not be surprised if the South evi-dences higher rates of litigation (here as measured by cases accepted for reviewby the Supreme Court), although Elazar’s work would lead us to expect lowerrates. Thus, we are faced with a puzzle. Can Elazar’s work be used to explainthe South’s pattern of litigation, or did Grossman et al. really find somethingthat they chose to dismiss?

As illustrated in Table 1, which represents the breakdown of South0NonSouthcases orally argued before the Court from 1953 to 1997, the South does appear


to be particularly litigious, at least as measured by cases argued orally beforethe U.S. Supreme Court. Of course, it could simply be that the Court accepts adisproportionately higher number of cases from the South.

During most of this period, the population of what I have defined as theSouth never rose to even 30% of the total U.S. population. Nevertheless, 37.4%of the cases heard by the Court were from the South.3

These numbers are interesting in that they confirm what CLRP researchersfound several years ago but were unable to explain in the context of traditionalpolitical culture variables. These data, however, does not tell us if there aredifferences among or between Courts. Did the Warren Court, for example, havesuch a disproportionate number of cases from the South as to affect the overallSouth0non-South distribution of cases? As is revealed in Table 1, that clearly isnot the case.

The consistently high proportion of cases coming from the South—throughoutCourts—is somewhat surprising. The factors that social scientists normally as-sociate with high rates of litigation—higher education or number of lawyersper capita, for example—are not necessarily present in the South. Althoughscholarly attention has been given to the role of the activist Warren Court, Table 1reveals, contrary to my expectations that the Warren Court would have decideda higher proportion of its cases from the South than the other two Courts, thatwas not the case. In fact, there was little variation among Courts. Although

3 The Southern population as a proportion of the total U.S. population (according to the CensusBureau at http:00www.census.gov) was:

Year %South1950 24.71960 24.71970 28.71980 25.71990 26.92000 29.9

TABLE 1

Distribution of South0Non-South Cases

All Cases Landmark Cases

South NonSouth South NonSouth

COURT(overall) 37.4% 62.6% 40.1% 59.9%

COURTWarren 39.1 61.9 42.9 57.1Burger 36.4 63.6 41.4 58 .6Rehnquist 36.7 63.3 36.7 63.3


nearly 40% of the Warren Court’s cases were from the South, that proportionwas not all that much higher than either the Burger or Rehnquist courts.

Thus, what is interesting, is the pattern—or lack thereof—that becomes ap-parent when the data are divided by Courts. Given historical attention to therole of the Warren Court in expanding civil rights and criminal defendants’rights at the expense of Southern policies and practices, it is surprising that theWarren Court did not, at least at first blush, appear to decide a disproportionatenumber of cases from the South.

While these numbers clearly reveal that the Court has heard more cases fromthe South over time than one would expect given the South’s population ortraditionalist culture, it may be that these high proportions are due to the factthat particular areas of the law “peculiar” to the South have attracted the Court’sattention. Since Swisher, in particular, notes the Court’s special role in casesinvolving the rights of criminal defendants, I next looked to see if his conclu-sions continued to hold true over time in the South. Although criminal casesmade up 20.4% (n 5 1,249) of the cases heard by the Court from 1953 to 1998,they made up only 18.4% of the Warren Court’s caseload, a proportion actuallyslightly lower than the Burger or Rehnquist courts at 20.8% and 20.9%, respec-tively. Moreover, there was no appreciable difference between the Warren, Burgerand Rehnquist courts’ ratio of South to NonSouth criminal cases as revealed inTable 2.

Swisher and others also note the disproportionate number of civil rights casesemanating from the South. While only 17% of the total number of cases theCourt heard involved issues of civil rights, 42.5% of those cases came from theSouth. While this proportion is high, I think that some scholars might haveexpected a far greater proportion to come from the South. Interesting differ-ences did emerge when the Warren, Burger and Rehnquist courts were ex-plored, however. As is revealed in Table 2, the Warren Court had a significantlyhigher proportion of Southern civil rights cases than did the Burger Court (51.4%vs. 37.2%). Interestingly, a higher proportion of the Rehnquist Court’s civilrights cases were also from the South.

TABLE 2

Southern Criminal and Civil Rights Cases

Percent Southern

All Cases Landmark Cases

Court Criminal Civil Rights Criminal Civil Rights

Warren 36.6% 51.4% 29.6% 25.6%Burger 37.8 37.2 48.9 42.2Rehnquist 33.5 45.8 44.1 30.4


Swisher noted one last area of particularly Southern concern—the role ofstates rights in the federal system. Despite the overwhelming importance ofthis issue, the Court does not actually decide all that many federalism cases,but when it does, they often have major ramifications. During the period underanalysis here, the Court decided 280 federalism cases—only 4.6% of its totalcaseload. Only 31.8% of those cases were from the South—actually a propor-tion lower than the Court’s overall proportion of Southern cases (37.4%) re-ported in Table 1. Again, there was very little variation among the Courts’ cases,which ranged from 29.3% to 33%.

What do these numbers tell us? They tell us that the South—at least insofaras the Court goes—is the source of a disproportionate amount of litigation thatresults in a full hearing before the U.S. Supreme Court. This immediately putsthe South, through sins of omission or commission, in the position to have adisproportionate influence on the course of the nationalization of public policyand bringing issues to the fore of the national agenda.

The proportion of Southern cases, however, is but one indicator of the im-portance of the role of the South in Supreme Court litigation. Another perhapsmore significant measure is the role of the South in major, or landmark, casesrecognized as having more impact than other cases. These are cases, says Bev-erly Blair Cook, in which “the Court creates the significance of the decision,turning a ‘little fish’ into a ‘choice morsel’” (1993, 1128). Thus, in any exam-ination of the role of the South in setting the agenda of the Court, it is impor-tant to look at the impact of those cases, as well as at numbers. I expected thatmore landmark cases would be from the South. To see if this was true, I exam-ined what Congressional Quarterly terms the “Major Decisions of the Court,”which are listed, categorized, and described in its Guide to the Supreme Court,(Witt 1988, Biskupic and Witt 1996).4 Cook’s (1993) work shows the validityand reliability of using this list. When compared to other compilations of “ma-jor cases,” it is more parsimonious and it “emphasizes the political as opposedto legal significance of Court opinions” (Flemming, Bohte and Wood 1997,1231–32).

The Guide to the Supreme Court contains 295 cases that were decided by theCourt from 1953 to 1996. For purposes of my South0NonSouth analysis, I ex-cluded all cases dealing with powers of Congress insofar as what Congress hasauthority to do internally and cases involving the powers of the president. Thus,cases such as Barenblatt v. United States (1959), dealing with the First Amend-ment rights of witnesses appearing before Congress; Immigration and Natural-ization Service v. Chadha (1983), dealing with the constitutionality of the one-house legislative veto; and United States v. Nixon (1974) were excluded fromanalysis because they had no regional dimension, despite having major policyimplications. This brought my initial usable set of cases to 280. An additional

4 Several scholars have attempted to come up with a variety of “top” lists. I have opted to usethis as a simple measure.


three cases were excluded from analysis because I could not ascertain theirorigins. This left a total of 277 cases to be analyzed.

As is also revealed in Table 1, landmark cases from the South made up 40.1%of all of the cases decided by the Court from 1953 to 1996. This is only 3%more than all of the Southern cases reported in the Spaeth data set (also dis-played in Table 1). To determine if landmark cases from the Warren Court—theCourt most often noted by political scientists and legal scholars as having playeda major role in the expansion of rights—and using many cases from the Southto do so—were disproportionately responsible for the overall proportion of casesfrom the South, the landmark cases from each Court were analyzed. As illus-trated in Table 1, there is not much variation among the three Courts: 42.9% ofthe Warren Court cases were from the South, 41.4% of the Burger Court’s wereSouthern in origin, and only 36.7% of the Rehnquist Court’s cases originated inthe South.

What then, are the kinds of cases that make up these landmark cases, whichreflective of the Court’s total caseload so disproportionately come from theSouth? Overall, criminal cases were 38.6%, 35.2%, and 28.2%, respectively, ofthe Warren, Burger, and Rehnquist courts’ overall landmark cases. While theseproportions of landmark cases are demonstrably higher than the actual propor-tion of criminal cases decided by the Court, the South0NonSouth breakdown oflandmark cases is very interesting. Only 29.6% of the Warren Court’s criminalcases were from the South, as opposed to 48.9% and 44.1% respectively, of theBurger and Rehnquist courts. We frequently think of the Warren Court in termsof its expansion of rights of criminal defendants. Whereas the Burger and Rehn-quist Courts are often noted for their retraction of those rights, the relativeproportion of their criminal rights cases is surprising.

The percentage of landmark civil rights cases as a proportion of the Court’soverall caseload is especially noteworthy. Although civil rights cases from theSouth made up 51.4% of the total civil rights docket of the Warren Court, theyaccounted for only 25.6% of the landmark cases. It may be that the WarrenCourt treaded more discreetly in selecting “blockbuster” cases from the South,knowing full well that the Southern states were more likely to react adverselyto well-publicized or long-awaited decisions. Moreover, the kinds of reactionsto rulings adverse to the state’s rights positions advocated by the South weremore likely to threaten judicial authority. By the Burger and Rehnquist Courteras, however, the proportion of landmark civil rights cases from the South wascloser to the entire population of cases heard by the Court as indicated in theSpaeth data set (see Table 1). And interestingly, a higher proportion of the Rehn-quist Court’s docket than that of the Warren Court was Southern civil rightscases. Many of those cases, however, were taken to reverse or severely limitearlier liberal Burger Court rulings.

The last area of logical comparison between these two sets of cases is feder-alism. Because the landmark cases compiled in the Guide end at 1996, thereare too few cases in which to generate any meaningful analysis. That notion in


and of itself is worth noting. During the recent presidential election campaign,the Court was the focus of unprecedented attention. Interest groups on bothsides of the divide invested millions of dollars to try to convince the electoratethat, in NARAL’s words, “It’s the Court, stupid.” While exit polls failed to noteany seismic shift from one side to the other on the basis of the Court, manyvoters did cast their ballots based on how they thought the Court would rule onissues such as abortion.

This focus on the Court, and the central role it played in the final resolutionof the election outcome, reinforces my call for more attention to the Court as akey player in the American political system. Appointments are political and soare judicial decisions; there is no other way to explain the majority unsignedper curiam opinion in Bush v. Gore. Therefore, I reiterate my call for moreresearch on the Court’s impact on the South and its use of the South to generatecases as vehicles on national policy making, be they in liberal or conservativedirections.5

Conclusion

I hope that this exercise highlights the importance of looking to the role ofregion and political culture as potential areas of fruitful inquiry for judicialscholars. Where cases come from matters, as does who brings the case or sup-ports the cause advanced, they also highlight the importance of the Court froma very simplistic viewpoint: Courts matter. Not only is the Rehnquist Courtconservative, for example, it now appears to be reaching out to “favorite” courtsmuch in the same way that the Warren Court did. In its 1999–2000 term, theCourt accepted nine cases from the 4th Circuit, second only to the much larger9th Circuit. And while the current Rehnquist Court is not quite as conservativeas the 4th Circuit, one need only look to the 4th Circuit to see where the Courtwill be going. Its decision in Bush v. Gore shows how the Court can use a casefrom the South not only to decide in favor of Southern interests (if this ismeasured by George W. Bush’s apparent sweep of the South, Florida notwith-standing), but to have major consequences for the rest of the nation, too.

The continued disproportionate number of cases to come to the Court fromthe South in all issue areas is also important, especially in light of continuedconcern for public support of the institutions of government. Public support forthe Court is difficult to measure over time as recent research reveals (Durr,Martin, and Wolbrecht 2000). Studies of public support must find ways to ex-amine the role of region and political culture, especially since Durr, Martin,and Wolbrecht find that when the Court deviates from “the public mood, itssupport erodes” (2000, 768). Not only is the South affected immediately by adisproportionate number of Supreme Court decisions, it is not unreasonable to

5 Finally, 86.2% of the Warren Court’s Southern landmark cases were decided in a liberal direc-tion. The figures for the Burger and Rehnquist courts’ were 71.7% and 44.8%, respectively.


speculate that Southerners hold a distinct set of attitudes toward the Court andits authority. Some authors (e.g., Hibbing and Theiss-Morse 1995) who haveattempted to equate trust in government with emotional responses toward Con-gress, the Supreme Court, and the president have found a lot of unease towardthe Court. It would be very interesting to see if regional differences exist there.Moreover, in the wake of the Court’s unprecedented role in the 2000 presiden-tial election, it will be interesting to see if the Court’s actions result in attitudestoward its legitimacy that have regional differences.

Southerners’ reactions toward the Court may have helped them to decide tovote for George W. Bush. It could be that Southerners, seeing the Court movingin the conservative direction promised by the ads of interest groups and theDemocratic party, saw that conservative drift as a reason to cast their votes forthe Republican candidate. Lag affects of negative impressions of many South-erners, moreover, may stem from the Warren Court’s liberal resolution of South-ern conflicts. This may not only be responsible for a difference in Southerners’attitudes toward the Court and the federal government, but may account for thehostilities that we see today in Georgia and South Carolina’s defense of theirflags, as well as the growing attractiveness to many white Southerners of theRepublican party, with its mantra of states rights. These are things that we donot know but should.

I conclude this talk to reference again to Swisher, with whom I began. Swishernoted that although he could not find a “single thread” to run through all of theSouthern cases decided by the Court, he did see the South as an “isolated area”or “collection of isolated areas” (1948, 305), that while being forced to “sufferthrough frustration of local desires” (1948, 305) also gained much from theSupreme Court’s enforcement of the morality of law, which he believed neededan especially helping hand in the South. Today, the Court continues to see theSouth as a fertile field for the growth of disputes, the resolution of which shapethe laws and contours of national policy, yet continue to go largely unexplored.

Manuscript submitted 5 February 2000Final manuscript received 5 February 2000

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Karen O’Connor is professor in the Department of Government, AmericanUniversity, Washington, DC 20016.


Documents

The Supreme Court and the South