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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
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