Influences on Supreme Court Decision Making

University of Colorado at Boulder

Professor V. Baird

December 13, 2001

How do Supreme Court Justices come to the decisions that they do? Although a number of different models of judicial decision making have been put forth, after analyzing the factors each presents, four general categories of influence over Justices’ decision making can be determined. The first is the personal ideologies of the Justices themselves. The second is public opinion. The third is the other governmental branches. And finally, the fourth is interest groups. Although research shows that interest groups can affect the Courts plenary agenda, little research has been done to determine exactly what if any effect interest groups have on the actual outcome of Supreme Court cases. The research done here explores the idea that through amici curiae at the merits stage interest groups are able to affect the outcome of cases.

Introduction

There is a great deal of debate among judicial political scholars as to the factors that Supreme Court Justices consider when making their decisions. The legal model says that Justices make their decisions based solely on legal considerations. Scholars who favor the attitudinal model suggest that Justices have certain policy preferences and they make decisions based solely on those policy preferences (Segal and Spaeth, 1993). This model says that Justices voting behavior is very stable due to the stability of their attitudes. The strategic model is a combination of the first two with a few modifications. Epstein and Knight suggest that Justices consider both internal and external factors and attempt to maneuver through these to a final decision that is closest to their preferred position (1998). This method would account for changes in Justices’ voting behavior.

These arguments all stem from the idea that understanding how the Supreme Court makes its decisions would be helpful in some way. Clearly there is much we could do with a model that accurately predicts judicial decision making. Ultimately a better understanding of the court is an end in and of itself. Especially since the Supreme Court is an institution that the founders meant to shelter from politics. Also, certainly lawyers and other interested parties would be greatly benefited if they could know ahead of time what decision the court would likely make in a particular case, or at least have a better idea of what obstacles they need to overcome to win. Although the goal of this paper is not to create or present a particular model, these models help to determine the main categories of influence on judicial decision making.

Justices’ Personal Ideologies

Justices are ultimately human beings with the same propensity to have deeply held beliefs as the rest of us. To believe that the personal ideologies of Justices do not affect their decision-making is simply unrealistic. In fact, only the scholars who support the legal model of judicial decision-making argue this, and they are quickly becoming the minority. In a total contradiction of the legal model, Wahlbeck (1997) argues that “when the attitudes of the Court are in conflict with the existing state of the law, the Court is likely to change the status of the legal rule” (p. 795). For the most part other scholars believe that personal ideologies factor into Justices’ decisions, the only argument is over how and to what extent they affect decisions.

There are several different definitions and focus in the research as to what sort of ideologies influence Justices. Some argue that political party affiliation is a salient feature of Justices’ attitudes (Wahlbeck, 1997; Tate, 1981; Nagel, 1961). Nagel (1961) found a definite relationship between party affiliation certain kinds of decisions made by judges. Although he admits that party affiliation is most likely a reflection of underlying attitudes rather than the other way around. Other researchers consider party affiliation as only a single factor in a broader attitudinal model of decision making (Tate, 1981). In their research, Segal and Cover (1989) consider the concepts of conservative, moderate, and liberal as representative of Justices’ personal ideologies. Although these are not necessarily specific to a particular party, often they are associated with certain parties.

Segal and Spaeth (1993) take a different approach to define Justices’ attitudes. They consider that Justices have certain policy preferences, which determine their behavior. These policy preferences are more specific than party affiliation or conservative versus liberal. Instead Segal and Spaeth argue that Justices’ policy preferences are consistent and specific to types of cases. Epstein and Knight (1998) also argue that Justices have specific policy preferences; however, they argue that these preferences only guide their behavior they do not determine it. None-the-less Segal and Spaeth and Epstein and Knight all agree that policy preferences represent the ultimate goal for Justices to obtain in final Court decisions.

Several other methods for defining Justices’ attitudes are represented in the literature. Ulmer (1970) discusses the effect that social background can have on the attitudes of Justices. Gibson (1978) considers the effects of role orientations on decision making. There is even research that suggests that the total ideological make-up of the Court can affect decisional outcomes (Wahlbeck, Spriggs and Maltzman, 1998). Spaeth (1962) discovered that it is difficult to find instances when values do not come into play. Obviously, the personal ideologies of Justices’ play a very important role in the decisions that they make.

The Other Branches of the Federal Government

The separation of powers was a very important part of the founders’ plan for the United States. Checks and balances were introduced into the system so that no one branch would be too powerful. Because of this, each branch is dependent in some way upon the others. The Supreme Court is no different; without the President and Congress the Court is impotent.

The President

There are a couple of different pathways through which the President can affect how the Court decides cases. First of all, the President plays an integral part in the appointment of Justices to the bench. So, the President has an indirect effect on the outcome of cases by putting people on the Court with specific ideologies. Segal and Spaeth (1993) argue that the President actually uses appointments to the Supreme Court to affect his impact on public policy. Tate (1981) suggests that the appointing President is an important consideration in a model used to predict the voting behavior of particular judges. As the example of FDR’s court-packing plan shows, the President’s ability to appoint Justices to the Supreme Court can have significant effects on what decisions the Court comes to. When threatened by FDR to be packed, the Court miraculously began deciding New Deal legislation cases in his favor.

Also, the President is the one responsible for implementing the law that the Court hands down. For this reason the Court has to be attentive to the political mood of the President when making its decisions (Epstein and Knight, 1998; Wahlbeck 1997). The Court is powerless to make sure that its decisions are followed. It depends very much on the power of the President to force compliance. For instance, had the President not called in the National Guard to Alabama to enforce Brown v. Board of Education, desegregation probably would not have happened there very quickly despite the Court’s ruling.

Congress

Congress also has a great deal of influence over the Supreme Court. On a very basic level Congress, along with the President, can affect the make-up of the Court through its role in the appointment of Justices (Calderia and Wright, 1998). Also, Congress has a very important role in that it can overturn Court rulings. In statutory cases, if Congress disagrees with how the Supreme Court rules they can simply (or not so simply) pass new legislation on the matter. For Constitutional cases Congress is slightly less effective in its check on the Court because to overrule these decisions they must amend the Constitution, a very difficult task (Epstein and Knight, 1998). Congress has other ways in which to influence the Court. Congress has power over the salaries of Justices. It can choose to hold those salaries constant if it wishes to punish the Court for decisions it disagrees with. Also, Congress can impeach Justices if it so desired although this does not happen often (Epstein and Knight, 1998).

As you can see Congress has a great deal of power over what the Supreme Court does. When making decisions the court obviously must consider what the political preferences are within Congress. If it does not it runs the risk of being overturned or being sanctioned in some other way.

Public Opinion

Considering that the United States is a democracy it is reasonable to believe, and even expect, that all of our governmental institutions are subject to public opinion. However, it is also a consideration that the Supreme Court was not originally meant to be a democratic institution in and of itself. For the most part however most people would consider it disturbing if the Supreme Court consistently went against the preferences of the public at large. It is a common argument that because the public can simply choose not to comply with Supreme Court decisions it is important for the Court to attend to the policy moods of the public. If the Court did not do this many of its decisions would go unheeded by the public and it may eventually lose its legitimacy (Epstein and Knight, 1998; Mondak and Smithey, 1997; Flemming and Wood, 1997). There has been a decent amount of research that suggests the Supreme Court does in fact respond to public opinion.

Public opinion can affect judicial decision making in two ways, indirectly or directly. An indirect mode of influence would be through Congress and the President. Both Congress and the President are elected and they, theoretically, represent the interests of the people. It has already been shown that Congress and the President can have significant influence over the decisions that Justices make. Although this method of influence over the Supreme Court is indirect it should not be overlooked. Virtually every study that looks at the effects of public opinion on the Supreme Court at least acknowledges its significant indirect effects (Mishler and Sheehan 1993; 1996; Flemming and Wood, 1997).

The second method of influence the public has over the Supreme Court is simply direct influence. There is a great deal of evidence that the Court does in fact respond directly to public policy moods (Mishler and Sheehan 1993; 1996; Flemming and Wood, 1997). Mishler and Sheehan (1993) assert that the Court is primarily a majoritarian institution as evidenced by its decisions in respect to the “ideological orientation” of the public. However in 1996 they found, when analyzing the effects of public opinion on individual Justices, that there was a strong effect for moderate Justices specifically. On the other hand, Flemming and Wood (1997) assert quite emphatically that there is a very strong direct effect of public opinion on all almost all circumstances Supreme Court Justices.

Whether the public influences the Supreme Court directly or indirectly it can certainly be said that public opinion does indeed affect the Court.

Interest Groups

The effect of interest groups on the actual decisions of the Supreme Court is less clear. What is clear however is the effect of interest groups on the agenda of the court. Epp (1998) argues that interest groups constitute the “support structure” for the judiciary and without them the courts would be essentially ineffectual. The argument is that the courts depend on cases and controversies to create policy and if there are no interest groups to support cases then the Court would never get the cases in the first place. Baird (2000) agrees generally with this argument and demonstrates (through the example of liberal economic policy) what happens to the ability of the Court to make policy when there are not two opposing parties to bring cases.

Another way interest groups significantly affect the Supreme Court’s agenda is through their participation in amici curiae briefs. Caldeira and Wright (1988) show that the more amici curiae briefs (whether for or against) filed before the certiorari decision increase the likelihood that cert will be granted for that case. McGuire and Caldeira (1993) found a similar effect in obscenity cases where the presence of an organized interest amici brief increased the likelihood that the court would hear the case.

There is significant evidence that interest groups can and do affect the agenda of the Supreme Court. Interestingly there is even some evidence that interest groups significantly affect which Justices are appointed, and as we saw earlier appointments inevitably effect the make-up and therefore the policy preferences of the Court (Caldeira and Wright, 1998). What cases the Court hears is important because ultimately this affects what kinds of policy the Court makes. What has not been studied very closely however is whether or not the presence of interest groups in amici briefs at the merits stage effects the ultimate decision of the Court in that case. The remainder of this paper attempts to explore this relationship.

Research Design

Theory

We have seen evidence that interest groups have a profound effect on the agenda of the Supreme Court. Interest groups play a major role in which cases actually come before the Court. They also can affect which cases the Court grants cert to through their presence in amici curiae briefs. And their presence is significant. In Caldeira and Wright’s 1990 study, interests who were neither governmental nor individual filed more than forty percent of the amici curiae at the cert stage in their study period. This is huge number when you consider that the governmental interests alone comprised more than fifty-five percent of amici.

The question that has not been answered as of yet is whether or not interest groups can actually affect the outcomes of the cases which the Court hears.

Hypothesis

The greater number of amici curiae briefs filed at the merits stage in favor of a certain outcome increases the likelihood of a decision in favor of those interests.

Design (modeled after Caldeira and Wright, 1990)

Using the Records and Briefs of the Supreme Court of the United States this study will classify all amici briefs at the merits stage from the 1995-1998 (randomly chosen) terms of the Supreme Court as to which interest is represented by those briefs. Any organized interest that is not a governmental agency will be classified as an interest group for the purposes of this study. Once the amici are classified by interest for each case the favored outcome of each interest must be determined. The final step will be to do correlation analysis to determine if there is a relationship between the number of briefs favoring a certain outcome and the actual outcome of the case

Implications

The finding that interest groups, through participation in amici curiae, have a profound effect on the outcome of Supreme Court cases is a very disturbing one. The founders intended that the Supreme Court be protected and removed from politics. Instead we find that the Supreme Court is very much influenced by politics. The idea that the Supreme Court is influenced by public opinion as well as the other branches of government is not so disturbing. Certainly the founders put checks and balances into the system so that each branch is influenced by the others. Also, because we are a democracy the fact that the Supreme Court is at least to some degree responsive to the people is actually comforting. However it is frightening to discover that the Court is influenced by interest groups. Although it would seem that interest groups represent the people to some extent this is often not true. In fact many interest groups have agendas quite contrary to the American people as a whole. These interests would include those of corporations as well as other minority interest groups. If the Supreme Court really is persuaded by interest groups then the American people definitely need to reconsider their faith in the Court.

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