Recurring Litigants: Federal Agencies Before the Supreme Court

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CONTEMPORARY analysis of the United States Supreme Court has largely ignored the possible impact of the litigants per se on the Court's decision making. In part this is because for most parties, an appearance before the Supreme Court is a singular or relatively rare event. And in part, it is because those few parties who do appear frequently before the Court, e.g., the Department of Justice, do so in a whole spectrum of cases arising in very different circumstances and treated by a variety of procedures. Some federal administrative agencies do, however, appear before the Court several times each term; moreover, the problems presented in such cases are normally encompassed in a relatively narrow scope of procedural and substantive issues. One might anticipate that such extended interaction between the agencies and the Court would introduce a new dimension into decision making in these cases. Past experiences with cases involving a particular agency might affect the Court's or at least some justices' perceptions of cases brought in the future. That is, the justices are likely to form general attitudes about the goals of a particular agency's policies or the fairness of its procedures on the basis of such continued exposure and reflect these attitudes in their voting behavior. Some thirty-five years ago, Chief Justice Hughes broadly hinted that this was indeed what happened. In St. Joseph Stockyards Co. v. United States, he stated: 1