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

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4 The Journal of Law, Economics, & Organization. V0 N0 opposing review increases (Caldeira and Wright, 1988; Caldeira, Wright and Zorn, 1999), when the lower courts are in conflict over the correct application or interpretation of federal law, and when other important legal considerations exist. All of these studies have served to further our understanding of the conditions under which the Court sets its agenda. Nevertheless, they tell us nothing about whether congressional and executive preferences influence the manner in which the Supreme Court sets its agenda. Do congressional and executive preferences cause the Supreme Court to decline to review cases? In what follows, I address these questions. 3. Explaining Strategic SOP Agenda Setting Existing studies which analyze whether the separation of powers influences the Court arrive at mixed conclusions with most, however, finding no evidence of an SOP effect (Segal, 1997; Segal and Westerland, 2005; Sala and Spriggs, 2004; Spriggs and Hansford, 2001). The few studies that observe an SOP influence are limited in important ways which make their conclusions somewhat suspect. For example, Hansford and Damore (2000) find that some justices moderate their votes based on legislative preferences. Analyzing the Court’s statutory decisions from 1963 to 1995, the authors find that justices more conservative than the president and both judiciary committees cast more liberal votes than they would in a non-SOP context. On the other hand, liberal outlier justices were no more likely to rule conservatively to avoid legislative rebuke. These results do not square with the SOP model examined however, as the model asserted that both types of outlier justices would behave strategically. Moreover, the study uses preference estimates for the different branches that do not scale, limiting the findings. 3 Spiller and Gely (1992) find that the Court renders more pro-labor decisions as Congress becomes increasingly liberal; yet, the study does not include the president as a pivotal actor and relies on ADA scores as proxies of legislative ideology. These scores have been attacked as poor surrogates of congressional preferences (Binder, Lawrence and Maltzman, 1999; Snyder, 1992). Finally, Harvey and Friedman (2006) find that the 1994 Republican Revolution, which provided the Court with a friendly Congress, played a key role in the Court’s increased proclivity to strike federal laws after 1994. Still, the substantive impact of their SOP variable is weak: The predicted probability that the Court would strike a federal statute increased from 0.00036 in 1987 to 0.00137 in 2000 as the result of the Court’s new position between key pivots in Congress. What is more, since the study does not include the president as a pivotal actor (other than in the Filibuster-Veto model), it is unclear whether these results are the product of an artificially small legislative equilibrium. 4 3. Justice ideology is measured as the percent of liberal votes a justice cast, while legislative and executive preferences are coded using DW-NOMINATE scores (see also Bergara, Richman and Spiller, 2003). 4. The study is, however, an interesting piece with a unique approach to the separation of
Supreme Court Agenda Setting in a System of Shared Powers 5 In short, while these studies have provided important insight into the Court and its role in a system of shared power, they are limited in potentially important ways. Perhaps the most critical reason for questioning whether the Court actually plays the separation of powers game, however, is the fact that virtually no study has examined how legislative and executive preferences influence the Court’s agenda decisions. If the Court strategically sets its agenda so as to avoid conflicts with Congress and the president, existing work focusing on the merits stage is unlikely to uncover the hidden effects of the separation of powers—much sophisticated behavior is likely to have occurred already (Murphy, 1964). Epstein, Segal and Victor (2002) is the only currently published study to analyze SOP influences on the Court’s agenda decisions. Epstein and her coauthors examined the percent of statutory interpretation and constitutional interpretation cases that made the Court’s docket over time. They argued that because the Court’s statutory interpretation decisions are more easily overridden by Congress than its constitutional decisions, its docket should consist of fewer statutory interpretation cases and more judicial review cases when it is ideologically at odds with Congress. The study finds that the Court’s docket does in fact contain a higher percentage of statutory interpretation cases during periods of legislative constraint. Nevertheless, it too uses ADA scores to measure congressional preferences and focuses only on cases the Court decided to hear, leading to questions of selection bias. Building off this analysis, Owens (2008) examined the separation of powers conditions under which individual justices vote to grant or deny review. Owens (2008) analyzed archival data to examine whether the separation of powers influences individual justices’ agenda votes. The results of the study suggest that legislative and executive preferences failed to influence justices’ votes. Nevertheless, Owens (2008) assumes that transaction costs for passing legislation are zero, suggesting that any policy set by the Court outside the legislative equilibrium will be overturned. While this assumption follows on the heels of existing work, transaction costs may matter. If so, a Court that is constrained under a zero-transaction-cost approach may actually be unconstrained under one that includes such costs. The result could lead to erroneously rejecting the SOP hypothesis when, in fact, it is true. Thus, in what follows, I examine the conditions under which legislative and executive preferences influence the Court’s decision to review a case while incorporating the notion of transaction costs into the models. My theoretical starting point in this endeavor is that justices are seekers of legal policy who want to etch their policy preferences into law. “Most justices, in most cases, pursue policy; that is, they want to move the substantive content of law as close as possible to their preferred position” (Epstein and Knight, 1998, 23). Justices are not unconstrained actors, however. They must pursue their goals in an environment in which their choices are a function not only of their own preferences, but also the preferences and likely reactions of their powers.
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