Answering the Call of the Court: How Justices and Litigants Set the Supreme Court Agenda

By Sommer, Udi | Law & Society Review, June 2008 | Go to article overview

Answering the Call of the Court: How Justices and Litigants Set the Supreme Court Agenda


Sommer, Udi, Law & Society Review


Answering the Call of the Court: How Justices and Litigants Set the Supreme Court Agenda. By Vanessa A. Baird. Charlottesville and London: Univ. of Virginia Press, 2007. Pp. xii+225. $45.00 cloth.

In Answenng the Call of the Court: How Justices and Litigants Set the Supreme Court Agenda, Baird attempts to explain the relationship between justices and litigants early in the agenda-setting process. Baird implements a remarkable research design that yields a well-written volume. The primary theoretical contribution of this project is in the notion that in order to create social change, the Court depends on the support structure of extrajudicial players. Legal entrepreneurs pay heed to signals concerning justices' priorities and then sponsor cases in the appropriate issue areas. The cases sponsored present the type of legal questions and case facts that make them good vehicles for policy change. In other words, litigants have a pivotal role in translating shifts in the priorities of justices into actual changes in the agenda. The upshot of this symbiotic relationship is increased policymaking power to both justices and legal entrepreneurs.

Agenda-setting, according to Baird, begins earlier than anybody else has ever argued. To a significant degree, it starts with politically salient decisions handed down by the Court approximately four years before the decision to grant certiorari in the current case. The pattern of the Court's changing interests is clear-when Baird employs different measures for justices' priorities, the result is that four to five years after the Court signals its interest in a certain issue area, the number of cases in this area on the Court's agenda swells significantly.

Quantitative and qualitative analyses are sophisticatedly combined in this volume. Despite "black-boxing" some of the processes in her statistical analyses, Baird carefully outlines what happens in the box in the qualitative sections of the book. For instance, using various illustrative examples from Supreme Court cases, in Chapter 2 the author discusses the signals the Court sends to litigants. These include separate opinions registered by justices (e.g., the separate opinions in Furman v. Georgia [1972]) and unexpected actions (e.g., Justice Anthony Kennedy's decision to join the majority in Lawrence v. Texas [2003]). Baird also offers an in-depth analysis of how the Mexican American Legal Defense Fund (MALDEF) took advantage of legal cues in recent Supreme Court decisions to devise a legal strategy challenging the Personal Responsibility Act passed by Congress in 1996. In this case (Latino Coalition for a Healthy California v. Belshe [1997]), based on former Justice Sandra Day O'Connor's approach to federalism in New York v. United States (1992), the MALDEF chose federalism over equal protection as grounds for litigation. …

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