Papers

The Ebb and Flow of Judicial Power: Justices' Priorities, Litigant Responses and the U.S. Supreme Court Agenda

By: Vanessa Baird

This book represents the first scholarly attempt to connect litigants' strategies and aggregate policy outputs of the U.S. Supreme Court. While nearly every other previous study on the Supreme Court's agenda deals with the selection of cases, the evidence inthis book shows that the agenda setting process begins long before justices and their clerks sift through certiorari petitions. The main argument is that when justices hand down decisions that provide hints about their priorities and preferences, policy entrepreneurs who sponsor litigation put their resources into finding well crafted cases in those policy areas. The evidence shows that approximately four to five years after justices signal their interest in a particular policy area, the Supreme Court hands down additional decisions in those areas'decisions that are comparatively more politically important than others on the Court's agenda.

Since policy making in courts is iterative, multiple cases are needed for courts to make comprehensive policy. This is not new. What is new is that judicial policy making power depends on policy entrepreneurs or other litigants who systematically respond to the priorities and preferences of Supreme Court justices. This in turn drives systematic cyclical patterns on the U.S. Supreme Court's agenda that have previously gone unnoticed, challenging the conventional view that justices must wait passively for the cases that are brought to them.

The theoretical implications are twofold: 1) Supreme Court justices can summon cases onto the agenda well before the certiorari process begins by informally communicating their priorities and preferences to potential litigants, and 2) Supreme Court justices are dependent on extra-judicial
actors for access to a sufficient number of well framed cases to make comprehensive policy in areas that they consider priorities.

This contribution should lay the groundwork for future studies on how cues in previous Court decisions affect future policy output. We can examine how information about justices#8217 preferences affects the specific characteristics of the cases that policy entrepreneurs choose to support, cases that then have a systematic impact on the policy outputs of the U.S. Supreme Court. Furthermore, there may be other characteristics of the political or legal context which could limit or promote the opportunity for litigants to respond to such information, perhaps also having an impact on the capacity of the Court. This book should pave the road for understanding how judicial attention to policy areas expands as well as how interest groups choose the venues they do, given a particular political or legal context.