Deciding to Decide: Agenda
Setting in the Courts
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Micro Level Theory vs. Macro Level
Theory
The focus is on the
individual decision maker
Liberal or conservative
dimension (expanding or
limiting rights)
Decisions based on
individual ideology and
what they prefer to do
Liberal judges stay liberal
in all aspects, as
conservative judges stay
conservative
• The focus is on the influence of the
group, institution, or environment
•Analysts must take into consideration
the collegial influences of the judges
as a collective group
•Also consider the extent to which the
Constitution must be upheld, legal
limits, and possible actions
•Must look into environmental issues,
such as whether the nation is at war,
political, social, and economic
conflict.
•Take into account public opinion, but
do not always make a point to
represent it
Three functions that are the
basis of decisions are:
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What they prefer to do
What they ought to do
What they perceive is feasible
Thus, each judges’ decision is based on
their individual values, what the nation needs
at the time, and what the governmental
action can actually achieve.
What is the cue theory?
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Used to explain certiorari
decisions of the Supreme
Court
Justices rely on “cues” as to
which cases actually deserve
more scrutiny
Most influential cue is from the
Solicitor General who prompts
which cases are most worthy
of consideration
Amicus Curiae Briefs play a key
role. Ex ACLU, NAACP
Restraintism vs. Activism
•Follow precedents
•Strict construction to the
constitution
•Deference to legislative
“intent”
•Restraintist judges stick closely
to the constitution and are averse
to interpreting the Constitution
as how it “ought to be”
•Decisions are strongly
predictable as they must be in
line with the literal Constitution
•These judges also show great
divergence in their votes from
their political values, as they feel
their values should not interpret
the constitution.
•Subordination of precedents
and statutes
•Deference to personal attitudes,
values, and goals
•Based on the idea that judges
make laws
•Interpretation solves problems
not considered or addressed by
the legislature
•“The question comes up, and
you decide it.” – you don’t wait
for the legislature
•Decisions strongly predictable
from the individual attitudes
Constructional Constraints
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Must satisfy both formal and informal
institutions
Institutional Constraints
Rule of Four
Chief Justice sets the tone
Must deal with the law, precedents and
Constitution
Justices interact as a group
Environmental Constraints
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The structure of political, economic, and
social conflict or war have much to do with
the cases coming to the court.
Judges are not expected to respond directly
to public opinion, but they are in line with the
public 60% of the time.
Interest groups play a major role in the
deliberations of judges as amicus curiae
participants.
Blue: Total cases on docket
Red: Number of cases acted upon
Granting Certiorari
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Presumption against granting cert
1. So little time, so many cases: Court will
be selective
2. All cases are fungible: issues are
important, not cases
Judging a Case Uncertworthy
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“Nut cases”
Frivolous
Clear Denies
Lack of percolation
Bad Facts=Bad Vehicle
Pipeline
Intractability
Judging a Case Certworthy
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Circuit Conflict
Importance (one of a kind, societal impactserious question of constitutional law, civil
liberties)
Impacts many people
Solicitor General’s encourages acceptance
Public pressure
Justice’s interest
Flagrant abuses of justice
Presence of amicus curiae briefs
Factors that limit cases heard by
Supreme Court
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Most cases previously
heard
Congress has power to
limit court’s jurisdiction
Court will not answer
moot questions
Parties have standing to
sue
Case must be ripe
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Court will not answer
political questions
Rule of Four
Court will not accept local
issues
Cases fails to answer
serious questions of
constitutional law
Expensive and emotional
to take a case all the way
Discuss List
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Internal mechanism to handle the large caseload.
The chief justice circulates a “discuss list” of cases he
deems worthy of discussion.
Justices may add a case to the list. Each case presented
to the Court is still reviewed in each justice's chambers,
but only those cases on the discuss list are talked about
at the justices' regular conference.
Approximately 30 percent of the filed cases reach the
discuss list. The remaining requests for review are
rejected, without further consideration.
Discuss List
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Justices will place cases on the Court’s discuss
list when the lower court’s decision, the status
quo, is contrary to their preferences.
Scholars have identified two dimensions to using
the docket-selection process as agenda setting:
1) Justices seek cases that they can use to
advance their policy goals;
2) Justices strategically seek cases where the
Court will render favorable decisions.
americandemocracy.nd.edu/workshops/documents/Schoendiscusslists.pdf
Justices Listing Cases
Justice
William H. Rehnquist
(Associate Justice)
(Chief Justice)
Warren E. Burger
Byron R. White
John Paul Stevens
Sandra Day O’Connor
William J. Brennan, Jr.
Harry A. Blackmun
Antonin Scalia
Anthony M. Kennedy
Thurgood Marshall
Ruth Bader Ginsburg
Lewis F. Powell
David H. Souter
Clarence Thomas
Number of
cases listed
Percent of
cases listed
1985-1993
5,035
19
5 ,016
819
1,043
477
368
60.1
9.8
12.5
5.7
4.4
216
214
129
34
19
12
7
2
1
Total 8,378
2.6
2.6
1.5
0. 4
0.2
0.1
0. 0
0. 0
0.0
100.0
Percent of total
during tenure
60.1 (1985-1993)
1.6 (1985)
69.8 (1986-1993)
68.8 (1985)
13.3 (1985-1992)
5.7 (1985-1993)
4.4 (1985-1993)
4.3 (1985-1989)
2.6 (1985-1989)
1.8 (1986-1993)
0.6 (1987-1993)
0.3 (1985-1990)
2.2 (1993)
0.3 (1985-1986)
0.1 (1990-1993)
0.0 (1991-1993)
The Impact of Judicial Policies
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Policies that have had significant effects on
“society as a whole” includes:
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The courts’ role in developing a policy of racial
equality: segregation, busing, employment, reverse
discrimination
Legislative reapportionment
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In 1962, Supreme Court ruled that malapportionment
presented a judicial question during the Baker v. Carr
decision, which eventually called for reapportionment as the
remedy.
(Impact continued…)
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Criminal due process
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Judicial policy-making in this area is most closely associated
with the Warren Court period.
Mapp v. Ohio extended the exclusionary rule, which had
applied to the national government for a number of years, to
the states.
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Required state courts to exclude from trials evidence that had
been illegally seized by the police.
Gideon v. Wainwright decision held that indigent defendants
must be provided attorneys when they go to trial in a felony
case in the state courts.
Miranda v. Arizona went a step further when the Supreme
Court ruled that police officers must advise suspects taken in
to custody of their constitutional rights.
Abortion
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The Court’s decision in Roe v. Wade concerning abortion was
naturally controversial. Later courts would modified abortion
guidelines (Planned Parenthood v Pennsylvania)
(Impact Continued…)
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Religion: Again, judicial policy-making in this
area is closely related to the Warren Court. Most
decisions were tied to public schools, but later
cases would address religion in the workplace,
Sabbath, and religious practices
Policies of Past Courts
Hughes’ Court 1930-1941
Evolution and Revolution
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Sitting l. to r.: McReynolds, Holmes, Hughes, Van Devanter, Brandeis.
Standing l. to r.: Stone, Sutherland, Butler, Roberts
The Justices
The Four Horseman
Swingman
Sympathetic
Sutherland, Butler
McReynolds, Van Devanter
Hughes
Roberts
Brandeis
Stone
Cardozo
FDR and the Court Packing Plan
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FDR’s response to the Great Depression
was the growth of the federal government
that would regulate business, labor laws,
child labor, minimum wage, and job
programs.
Court rules that the New Deal programs
violates the 10th Amendment
Impact of the Hughes Court
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Considered the first modern court because of its
deference toward economic legislation and the
vigorous guardianship of personal liberties
Famous footnote 4 in US v Carolene Products,
1937- more exacting judicial scrutiny under
provisions of 14th Amend.
Incorporates press, assembly, free exercise
Right to attorney in death penalty cases
Warren Court 1953-1969
The Warren Court, 1966
Back row, L to R: Justices White, Brennan, Stewart, Fortas
Front Row, L to R: Justices Clark, Black, Warren, Douglas, Harlan
Two Warren Courts
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1953-1962- Brown v Topeka Bd of Ed, and
national security cases, and political reaction to
court’s decision, procedural fairness in
governmental process
1962-1969- Firmly in the hands of the liberals
and centered on individual freedoms
18 justices served during this 16 year period
“Worse Damn Mistake I Ever Made”
Warren Court moves to the left:
 Brown v Board of Education
 Baker v Carr One man, one vote
 Rights of the Accused Extended:
1. Gideon v Wainwight
2. Miranda v Arizona
3. Mapp v Ohio
Burger Court, 1969-1986
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Sitting l. to r.: Harlan, Black, Burger, Douglas, Brennan.
Standing l. to r.: Marshall, Stewart, White, Blackmun
The Burger Court 1969-1986
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Began to narrow the
rights of the accused
that were won in the
Warren Court.
Most noted for Roe v
Wade and US v Nixon
Extended rights for
women
Rehnquist Court, 1986-2005
Sitting l. to r.: O'Connor, Blackmun, Rehnquist, Stevens, Scalia.
Standing l. to r.: Thomas, Kennedy, Souter, Ginsburg.
Radical Revision of Constitutional
Law
Chipped away at liberal
decisions, such as,
abortion rights and
affirmative action.
Overturned cases which
extended the Congress’
commerce power
Decline in number of
cases
Supreme Court justices are
as independent as hogs on
ice. You can't herd them.
Impact of Rehnquist Court
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Strict Construction- Rehnquist, Scalia, Thomas
(Sometimes Kennedy and O’Connor)
Loose Construction- Brennan, Marshall
1992-2002 Court overturns more Congressional
statutes that any other court with the exception
of the 17 years of Burger’s court (Court
activism)
Rolling back the commerce clause and
supporting states’ rights US v Lopez and
US v Morrison
Credits
Deciding to Decide: Agenda Setting in the United States Supreme Court: H.W., Jr. Perry: Books
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Lessons for important cases: Mapp, Gideon, Brown, Korematsu, Miranda, MuCulloch, Texas v Johnson, Roe v
Wade, US v Nixon can be found at http://www.landmarkcases.org/index.html
Flag cases-Lesson http://www.getty.edu/education/for_teachers/curricula/dorothea_lange/lange_lesson04.html
Photos of court- Supreme Court Historical Society
“Decision Making in Appellate Courts”
by James L Gibson