Supreme Court Agenda Setting in a System of Shared Powers Ryan ...

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2 The Journal of Law, Economics, & Organization. V0 N0 countability” and, therefore, “an affront to the system of checks and balances” (Calabresi and Lindgren, 2006a, 813)? Numerous studies examine whether justices rule differently when they anticipate legislative resistance to their decisions (Segal, 1997; Hansford and Damore, 2000; Sala and Spriggs, 2004) but they are limited in important ways that prevent us from understanding whether the Court truly is as independent as Calabresi and Lindgren (2006a,b) fear, or, whether it is a strategic separation of powers (SOP) actor that decides cases in line with majoritarian preferences. More specifically, these studies are limited by their exclusive focus on the Supreme Court’s merits decisions (but see Owens, 2008). Because the Supreme Court sets its own agenda—and does so in private—it might decline to review cases likely to engender hostility from the political branches. That is, the Court can avoid trouble simply by declining to decide a case. What may look at the merits stage like a Court acting without regard to legislative and executive preferences may, in fact, be a Court that has already filtered out cases strategically. What is needed, then, is an examination of whether the separation of powers influences the Court’s agenda decisions. In this paper, I examine whether the Court strategically sets its agenda in a separation of powers context. I analyze 430 petitions for review and appeals filed with the Court between its 1953 and 1993 terms. I test the empirical implications of various theoretical SOP models. My results could not be clearer. Across every model I test, the Court failed to follow the separation of powers prediction. Simply put, the Court sets its agenda without regard to congressional and legislative preferences. Given that the agenda setting process is the stage in which the Court is most likely to show signs of strategic SOP behavior, these results cast serious doubt on strategic SOP theories. The results further speak to normative questions regarding the Court’s role in contemporary government. Since “a central problem of representative democracy is how to ensure that policy decisions are responsive to the interests or preferences of citizens,” (McCubbins, Noll and Weingast, 1987, 243) such a counter-majoritarian force must be reconciled with evolving concepts of democratic rule. The paper proceeds as follows: Section 2 describes the Court’s agendasetting process. Section 3 then theorizes how a forward-thinking Supreme Court might set its agenda in an SOP context. Section 4 models the conditions under which the Court might grant or deny cases in such a context. Section 5 explains the data and methods I use to test the strategic SOP theory. Section 6 presents my results and section 7 concludes. 2. The Agenda-Setting Process When a party in a lower court loses her dispute and wants the Supreme Court to review her case, she files a petition for a writ of certiorari (“cert”) or an appeal with the United States Supreme Court Clerk. After checking the petition or appeal to ensure it meets minimum filing requirements, the Clerk sends the document to each of the justices’ chambers. The petition is then randomly
Supreme Court Agenda Setting in a System of Shared Powers 3 assigned to one of the law clerks in the “cert pool,” who is charged with writing a preliminary memo (a “pool memo”) which summarizes the proceedings in the lower courts, discusses all claims made in the petition, and concludes with a recommendation for how the Court should treat the petition. 1 The pool memo is then distributed to the chambers of the participating justices. After reviewing the pool memos, the Chief Justice makes an initial determination of the petitions that he thinks merit some discussion by the Court. That is, on a rolling basis as the petitions come in, the Chief will compile a “discuss list” of all the petitions that he believes might be worthy of a grant—or at least some discussion as to their “certworthiness.” The Chief circulates this list to the Associate Justices who, in turn, can add petitions that they think merit the Court’s discussion. No justice can remove a petition put on the list by a colleague, however. A petition that makes the discuss list receives at least some form of discussion by the Court during conference, regardless of whether it is eventually granted or denied review. A petition that does not make the discuss list, however, is summarily denied—it receives no discussion by the Court and is denied unanimously. The Court meets in private conference roughly once every two weeks to determine which cases it will hear. During these conferences, the justices vote on whether to grant or deny review to each petition on the discuss list. Before the justices vote, however, the justice who placed the petition on the discuss list will lead off a brief discussion about it, stating why s/he placed the case on the list as well as his or her views regarding the importance of the case. That justice then casts an agenda vote. In order of seniority, the remaining justices do the same. Only if four or more justices vote to grant review does the case proceed to the merits stage. 2 Cert votes are entirely discretionary and, unless divulged by the personal papers of a former justice, are completely secret. This secrecy, plus the Court’s lack of formal requirements for taking cases, set the stage for strategic agenda setting. Indeed, justices cast strategic agenda-setting votes by voting to grant review to cases when the policy they expect the Court to make is better than the status quo (Black and Owens forthcoming; see also Caldeira et al. 1999). Similarly, Benesh, Brenner and Spaeth (2002), Boucher and Segal (1995), and Brenner (1979) show how affirm-minded justices strategically anticipate the Court’s likely merits ruling so as to avoid creating legal policy that is worse than the status quo. Other research finds that the Court is increasingly likely to grant review as the number of briefs amicus curiae filed either supporting or 1. The cert pool was created in 1972 as way to reduce the amount of cert petition work done in each individual chamber. Prior to its creation, each chamber independently reviewed every petition for cert (Ward and Weiden, 2006, 118). At the time of the pool’s creation, William J. Brennan, William O. Douglas, Thurgood Marshall, and Potter Stewart declined to participate in the pool. With the exception of Justices John Paul Stevens and Samuel Alito, each new justice to join the Court since the pool’s creation have elected to participate in it. 2. Technically, the Court will hear a case with three grant votes plus a Join-3 vote. It will not grant review, however, if just two justices vote to grant and two vote to Join-3 (Black and Owens, N.d.).
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