Policy Convergence in a Federal Judicial System: The Application of Intensified Scrutiny Doctrines by State Supreme Courts

Abstract

Theory: The study examines the ability of the middle-range theory of policy convergence to explain the degree of doctrinal convergence between relatively autonomous state supreme courts and the U.S. Supreme Court. Hypotheses: The article develops potential explanations of policy convergence to assess separately the state courts' convergence with policy content or doctrine established by the U.S. Supreme Court. The explanations of convergence are penetration, or state court response to a potential threat for a failure to converge with federal doctrine, emulation or convergence because the U.S. Supreme Court is a policy exemplar, elite networking, or convergence because of the extent of state court interconnection with national legal elites in a policy community, and harnonization or convergence when the state court justices share similar policy preferences with the U.S. Supreme Court. Methods: The study uses logit analysis on a sample of 1,040 state supreme court decisions about intensified scrutiny doctrine collected by the authors. Results: The results indicate that doctrinal convergence is a multifaceted event, influenced by the penetration of the U.S. Supreme Court's message to state courts, state court emulation of exemplars established by the U.S. Supreme Court, the political context of state court decision making, and the degree of harmony between the political commitments of the federal justices and state judges. However, elite socialization of state judges increased divergence from U.S. Supreme Court doctrines.