The Ebb and Flow of Issues on the Supreme Court’s Agenda

1. The Ebb and Flow of Issues on the Supreme Court’s Agenda Vanessa A. Baird University of Colorado-Boulder

2. Judicial Power in the World The worldwide expansion of judicial power may be one of the most important political phenomena of the 21st century ~ Tate and Vallinder The Global Expansion of Judicial Power, 1995

3. Conventional Explanations • Activist Judges • Ineffective Legislatures

4. More Recent Explanations Rights are more comprehensively protected when there are groups that support litigation Epp, The Rights Revolution, 1998

5. Research Question How does the Supreme Court get the issues that it needs on its agenda to make comprehensive policy?

6. The Judicial Agenda: Across Time and Area

7. My Explanation • Litigation responds systematically to indications of the justices’ policy priorities • The Supreme Court’s agenda transforms in light of the justices’ priorities

8. The Dependent Variable: Number of cases on the Supreme Court’s agenda for eleven issue areas for each year, 1953-1995

9. Indications of the Supreme Court’s Policy Priorities • Number of cases appearing on New York Times front page • Number of declarations of unconstitutionality • High rates of lower court reversals • Number of formal alterations of precedent

10. Theory Justices’ policy priorities cause an increase in future attention to those policy areas

11. Theoretical implication Justices are dependent on strategic and sophisticated litigation to make comprehensive policy

12. Expectations • The impact should take a few years • The impact should also appear in lower courts • The resulting cases will be more important • More amicus briefs • More separate written opinions

13. The Effect of Justices’ Policy Priorities on the Number of Cases on the Supreme Court’s Agenda, 1953-1995

14. The Effect of Justices’ Policy Priorities on the Number of Cases on the Appeals Courts’ Agendas, 1953-1988

15. The Effect of Justices’ Policy Priorities on the Number of Amicus Briefs on the Supreme Court Agenda, 1953-1986

16. The Effect of Justices’ Policy Priorities on the Number of Amicus Briefs on the Appeals Courts’ Agendas, 1953-1988

17. The Effect of Signals on the Number of Separate Opinions on the Supreme Court

18. Conclusions from preliminary analysis • Judicial policy making happens in five year cycles • The Court waits four or five years before increasing attention to policy priorities • The Court depends on strategic and sophisticated litigants • The Court gets more policy relevant cases in those later years • Easier to implement preferences

19. Implications • Groups that represent minorities must be sophisticated enough to support well framed cases in response to the justices’ priorities. Otherwise, the courts will have limited opportunities to make comprehensive policy. • Two actors, courts and interest groups, who are unresponsive to the public help one another make policy. • Countries without groups that support litigation are not likely to have comprehensive rights protections. • The middle justices are advantaged.

20. Future work • Litigation in response to the Court’s policy priorities tends to be aimed at the ideological middling justices. This results in more 5-4 or 6-3 decisions in those future years. • Dissenting opinions that mention the state-federal balance of power bring about more cases in that issue area decided on the basis of federalism. Moreover, the dissenting ideological coalition becomes the majority coalition in the future. It is a strategy that works for both liberals and conservatives. • There may be other attributes of the legal environment, justices, or groups that interact that could affect the Supreme Court’s agenda in a systematic way.