Analyzing the Reliability of Supreme Court Justices' Agenda-Setting Records*

By Black, Ryan C.; Owens, Ryan J. | Justice System Journal, September 1, 2009 | Go to article overview
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Analyzing the Reliability of Supreme Court Justices' Agenda-Setting Records*

Black, Ryan C., Owens, Ryan J., Justice System Journal

Nearly all aspects of the Supreme Court's decision-making process occur outside the public eye. To study how the Court makes law and policy, scholars largely must rely upon archival materials harvested from the private papers of retired Supreme Court justices. Previous efforts to validate the reliability of these materials focus solely on the votes justices cast at the merits stage and were unable to assess the reliability of recently released papers. We examine the agenda-setting records for several justices' papers, including those of Justice Harry A. Blackmun, the justice whose papers were most recently made public. Our results suggest that Blackmun's papers are reliable and accurately archive his colleagues' agenda votes.

In March 2004, the Library of Congress publicly released the private papers of former Justice Harry A. Blackmun. Consisting of 1,585 boxes of material, the Blackmun papers contain a treasure trove of data for Court scholars. From the role of oral arguments (Johnson, Wahlbeck, and Spriggs, 2006) to the opinion-assignment process (Wahlbeck and Maltzman, 2005), data from the Blackmun papers significantly improve our understanding of the Court.

Perhaps most important, the Blackmun papers offer an unprecedented view of the Supreme Court's agenda-setting decisions. Justice Blackmun maintained copious notes that recorded how every justice voted at the agenda stage (his docket sheets), as well as marked up copies of every memorandum that summarized a certiorari petition or appeal brought before the Court during his twenty-four-year tenure (1970-94). In 2007, supported by funding from the National Science Foundation, Epstein, Segal, and Spaeth (2007) digitally photographed and made freely available online all of Blackmun's papers throughout his years of service during the Rehnquist Court (198694). Accordingly, scholars now have critical archival data on the Supreme Court just a mouse click away.

To be sure, Blackmun's papers may unlock many of the mysteries that surround the Supreme Court's agenda-setting process (and later stages as well) . Indeed, existing studies have examined the Blackmun papers to analyze what happens when policy and legal considerations collide at the agenda- setting stage (Black and Owens, 2009a) and whether the separation of powers influences justices' agenda- setting votes (Owens, 2010). Yet, to date, no one has analyzed the accuracy of Blackmun's data. Do Blackmun's papers reliably record how his colleagues voted on the thousands of petitions and appeals before the Court? How do Blackmun's records compare to his colleagues' archives? Scholars must answer these questions before further relying on the Blackmun papers. Simply put, reliability cannot be assumed but must be tested.

In what follows, we empirically examine the reliability of Justice Blackmun's agenda-setting records and compare them with his colleagues' materials. Though Blackmun's records are not perfect, we find that they are highly reliable. Our results should assure scholars that they may freely use Blackmun's papers to study Supreme Court agenda setting.

We proceed as follows. We begin with a thumbnail sketch of the Court's agendasetting process and why it is crucial for scholars to understand it to appreciate more fully how the Court makes law and policy. We then describe the data and methods we use to analyze the reliability of Blackmun's papers. After reporting our results, we discuss how scholars can make effective use of the Blackmun papets to examine Supreme Court decision making more fully.


In this section, we describe, first, how the Supreme Court sets its agenda and, second, how justices may act strategically during this important stage of the decision-making process.

The process by which the Court treats petitions for review typically takes the following form: When a party in a lower court loses a case and wants the Supreme Court to review the lower court's decision, the party files a petition for a writ of cettiorari (hereafter, "cert") with the Supreme Court.

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