Intergovernmental Relations and the Courts: How Does an Independent Branch Play Politics?

Abstract

The American Judiciary faces a catch 22. As an independent branch, courts are expected to remain above politics, yet they must enter the process to obtain their resources, to fight for and against policies that might impact them, and to even repel attacks on their power. The catch-22 issue and these needs of courts raise the question of how they perform the tasks of intergovernmental relations. How does the judicial branch lobby other branches of government? Existing research suggests that courts traditionally behave conservatively in their lobbying behavior and use caution - by trying to not appear aggressive or outwardly political when lobbying for court needs (Douglas and Hartley, 2001a; Hartley, 2003). Some scholars suggest that courts should behave conservatively as a strategy for maintaining norms of judicial independence and court legitimacy (Burbank, 2007; Resnik, 2000-2001). However, case study research hints at more sophisticated strategies used by courts when widespread reforms are undertaken (Crowe, 2007; Buchman, 2003; Winkle, 2003). Court officials are currently strategically planning for improved mobilization and more effective inter-branch relations at the federal level and in the states. This paper introduces a book-length project that will employ data from interviews, surveys, and records of commissions to examine how state court systems lobby other branches and levels of government. The project assesses what resources are devoted to intergovernmental relations, what courts lobby for and against, what tactics and strategies are currently used, and ends by identifying efforts to improve inter-branch relations. I propose that the judicial branch commonly uses traditional lobbying techniques and tactics documented in past research (e.g., use of judges and court liaisons), but that they are increasingly using more sophisticated strategies (e.g., coalition building) to lobby - and that this behavior is more widespread than originally assumed.