Supreme Court Agenda Setting Research Articles

Justice-level heterogeneity in certiorari voting: US Supreme Court October terms 1939, 1968, and 1982

AbstractAlthough the literature on US Supreme Court agenda-setting is sizable, justice-vote-level multivariate analyses of certiorari are almost exclusively limited to samples of discussed cases from 1986 to 1993. Moreover, these studies have done very little to explore justice-level heterogeneity on certiorari. Here, we address these lacunae by analyzing the predictors of individual justices’ cert votes on all paid cases from the 1939, 1968, and 1982 terms. We find substantial justice-level heterogeneity in the weight that justices place on the standard set of forces shaping the cert vote. We also show that some of this heterogeneity is associated with justices’ experience and ideological extremism, largely in theoretically predicted ways. In closing, we sound a note of caution on drawing conclusions about effects of justice attributes, when the number of justices is relatively small.

Supreme Court agenda setting: strategic behavior during case selection

1. Introduction 2. The History and Institutions of Certiorari 3. The Theoretical Framework: Strategic Case Selection on the Court 4. Voting Contingents, Cert Pivots and Voting Volatility 5. Strategic Votes on Cert: Evidence from Justices' Papers 6. Opinion Authorship and Strategic Cert 7. Conclusions Appendix 1: SIMEX Computations Appendix 2: The Judiciary Act of 1925 Appendix 3: Rules of the Supreme Court of the United States Appendix 4: Original Material and Documents

Amicus Coalition Heterogeneity and Signaling Credibility in Supreme Court Agenda Setting

What makes lobbying coalitions successful? We contend that greater preference heterogeneity among members of a lobbying coalition enhances the credibility of its signals to a target audience. To test this theory, we analyze the relationship between the preference heterogeneity of state amicus coalitions at the agenda setting stage and the probability of the U.S. Supreme Court granting review in state-filed cases. The results suggest that petitions are more likely to be granted as the preference heterogeneity among members of amicus coalitions increases. Our theoretical and empirical approaches are easily adapted to the study of lobbying influence in other institutional contexts.

An Alternative Perspective on Supreme Court Agenda Setting in a System of Shared Powers

This study builds on existing empirical separation-of-powers work to determine whether legislative and executive preferences constrain the Supreme Court's agenda. Its contribution comes in the form of a different modeling perspective—namely, whether judicial improvements over the status quo might avoid legislative overrides. The location of the status quo vis-à-vis key pivots does not appear to factor in to the Court's agenda calculations. Regardless of whether the Court was improving the status quo policy or making it worse for Congress and the president, the Court does not appear to consider legislative overrides.

The Separation of Powers and Supreme Court Agenda Setting

This study employs the first systematic, empirical analysis that relies on archival data to examine whether the separation of powers influences justices' agenda votes. It spatially models how justices set the Court's agenda under a sincere approach as well as an SOP approach and compares the competing expectations derived therefrom. The results suggest that legislative and executive preferences fail to influence justices' votes. Across every model tested, the data show justices uninfluenced by the separation of powers. These results provide a strong rejoinder to SOP models, since the Court's agenda stage is the most likely stage of the decision‐making process to show signs of an SOP effect.

The Separation of Powers and Supreme Court Agenda Setting

This study employs the first systematic, empirical analysis that relies on archival data to examine whether the separation of powers influences justices' agenda votes. It spatially models how justices set the Court's agenda under a sincere approach as well as an SOP approach and compares the competing expectations derived therefrom. The results suggest that legislative and executive preferences fail to influence justices' votes. Across every model tested, the data show justices uninfluenced by the separation of powers. These results provide a strong rejoinder to SOP models, since the Court's agenda stage is the most likely stage of the decision making process to show signs of an SOP effect.

An Alternative Perspective on Supreme Court Agenda Setting in a System of Shared Powers

This study builds on existing empirical separation of powers work to determine whether legislative and executive preferences constrain the Supreme Court's agenda. Its contribution comes in the form of a different modeling perspective regarding how the location of the status quo conditionally impacts the separation of powers dynamic -- namely, whether a judicial improvements over the status quo will avoid legislative overrides. The data suggest two things. First, the location of the status quo vis-a-vis key pivots does not appear to factor in to the Court's agenda calculations. Regardless of whether the Court was improving the status quo policy or making it worse for Congress and the president, the Court does not appear to consider legislative overrides. Second, these data more broadly suggest that the Court unlikely plays the separation of powers game with Congress and the president.

Join-3 Votes and Supreme Court Agenda Setting

Since the early twentieth century, the Rule of Four has required the assent of at least four justices for a certiorari petition to receive full review by the Supreme Court. This rule changed during the 1970s, when justices began to cast votes. Despite the significance of these votes, scholars have simply treated them as votes to Grant review. We analyze the conditions under which justices cast Join-3 votes and determine whether it is appropriate to treat them as Grant votes. Our results show that collegiality and uncertainty drive the decision to cast Join-3 votes and that it is inappropriate to pool Join-3 and Grant votes together. We discuss alternative coding practices for agenda-setting scholars.

US Supreme Court Agenda Setting and the Role of Litigant Status

Whether the haves come out ahead of the nots in the judicial process is a topic of great interest for scholars of the judiciary. Although studies of lower courts have found that litigant status generally matters, research at the US Supreme Court is not of one voice, with conflicting results across several studies. Bringing a novel perspective to this debate, we analyze litigant status at the Supreme Court's agenda-setting stage. Using archival data from the articles of Justice Blackmun, we find that litigant status influences the Court's decision making but that the nature of the effect can be mitigated by the interplay between a justice's ideology and the presence of interest group support. (OT1phvlslJEL C00, K00, K40) The Author 2010. Published by Oxford University Press on behalf of Yale University. All rights reserved. For Permissions, please email: journals.permissions@oxfordjournals.org, Oxford University Press.

The Presence of Lower-Court Amici as an Aspect of Supreme Court Agenda Setting

The importance of agenda setting to understanding U.S. Supreme Court decision making cannot be gainsaid. Much information exists about cases the Court reviews, but not about cases the Court does not review. As a result, many studies of Supreme Court agenda setting have focused on cases that have already been granted review. We have constructed a stratified random sample of petitioned lower cases denied review by the Burger Court (1969–86). We analyze the characteristics and treatment of all lower-court cases—accepted and rejected—involving amici curiae, finding that justices' policy preferences explain little of the Court's behavior; rather, it seems that legal—and perhaps strategic—considerations explain the justices' behavior.

The U.S. Supreme Court's In Forma Pauperis Docket: A Descriptive Analysis

The proportion of the U.S. Supreme Court's docket composed of unpaid or in forma pauperis petitions, petitions filed by litigants who cannot afford the Court's filing fee, has consistently outstripped the percentage of cases granted review that originate on the IFP docket. Scholars and jurists alike attach little significance to this apparent disparity because they tend to write off categorically cases on the IFP docket as frivolous and unimportant. Yet given the large and growing number of IFP petitions filed with the Court, this class of cases requires some form of systematic consideration. This article compares a sample of the unpaid petitions for review filed with the U.S. Supreme Court from the 1976 through 1985 terms to a similar sample of paid petitions to determine whether and how the two dockets differ. Examination of the cases indicates that the IFP petitions are not categorically frivolous and unimportant and suggests, as a result, that these petitions require further consideration in the literature on the Supreme Court's agenda setting.

American Indian Interests and Supreme Court Agenda Setting

A recent development in the judicial behavior literature on Supreme Court agenda setting is the examination of case selection within particular areas of the law. To that end, this study examines the Supreme Court's agenda-building process regarding American Indian Interests as a petitioning litigant during the 1969-1992 October terms. Using a multivariate logistic regression model, the findings indicate that judicial attitudes as manifested by the attitudinal model, the direct and third party briefs filed by the Solicitor General's office for and against American Indian interests, and the presence of a sovereignty issue were influential explanatory variables in the Supreme Court's case selection process. Contrary to the expectations of this study, however, the petitioning party alleging lower court conflict, dissension, and the number of amici curiae briefs filed in support of, and in opposition to, American Indian interests were not important predictors.