Academic journal article Political Research Quarterly

Getting Attention: The Effect of Legal Mobilization on the U.S. Supreme Court's Attention to Issues

Academic journal article Political Research Quarterly

Getting Attention: The Effect of Legal Mobilization on the U.S. Supreme Court's Attention to Issues

Article excerpt

This article asks two questions stemming from a conflict in the literature on the U.S. Supreme Court's attention to issues: (1) Are levels of legal mobilization explained by salient Court decisions? (2) Is the Court's level of attention explained by levels of legal mobilization? To answer them, the author tests hypotheses from the public policy and public law literature on data from seven specific issue areas. The author finds that levels of legal mobilization cannot be explained by past salient decisions of the Court but finds some evidence that changes in the Court's levels of attention are explained by levels of mobilization.

Keywords: U.S. Supreme Court; agenda setting; salient decisions; legal mobilization; interest groups

Epp (1998, 1999) argued for taking a fuller account of how attentive issue communities influence the U.S. Supreme Court's agenda. However, the findings of a recent investigation question the extent to which external actors exert independent influence upon the Court's attention to issues. Baird (2004) found that the Court itself spurs the actions of litigants by its decisions, which send signals about the desirability of future litigation. Despite what appears to be a fundamental disagreement-litigant-driven versus Court-driven-agendas-both Baird and Epp left room for investigation into the precise role of litigants in drawing the attention of the U.S. Supreme Court to the issues of the day.

This article reports the results of a study of the Supreme Court's attention to seven specific issues during most of the latter half of the twentieth century. I consult the literature on the Court and the public policy process more generally to develop several indicators of the activity of attentive groups in organizing to influence legal policy, a process I refer to as legal mobilization. I find that levels of such legal mobilization cannot be explained by past salient decisions of the Court. I do find some evidence, however, that changes in the Court's levels of attention can be explained by levels of mobilization. The findings reaffirm Baird's (2004) observation that the Court's attention to issues is influenced by prior Court action but also suggest that legal mobilization can have an independent effect on the Court's attention to issues. The findings also raise the possibility that the process of legal mobilization cannot be separated from the larger process of political mobilization.

The Supreme Court's Attention to Issues

Because the appellate docket of the Supreme Court is, for the most part, set at the discretion of the justices, most theories that explain the Court's agenda setting have been rooted in individualistic assumptions, whether strategic (Schubert 1959; Brenner 1979; Brenner and Krol 1989; Epstein and Knight 1998; see also Baum 1977), attitudinal (Segal and Spaeth 1993), or heuristic (see, e.g., Tanenhaus et al. 1963; Ulmer, Hintze, and Kirklosky 1972; Ulmer 1984; Caldeira and Wright 1986, 1988, 199Ob). Perry (1991) confirmed many prior individual-level findings in his interviews with justices and clerks. But his attention to the ways in which litigants and other actors in the system influence the information the Supreme Court receives also increases our knowledge of how people outside of the institution participate in the agenda-setting process.

Others have sought to explain the relationships between the Court and these external actors. Pacelle (1991) demonstrated that the Court may be compelled to hear certain cases to fulfill its responsibility to clarify the law and provide guidance to lower courts, constraining the effect of justice turnover and policy preferences. Using a comparative method, Epp (1998) showed that judges cannot make effective policy without the support of those who would bring cases to them. The attention of courts to issues is "dependent on a support structure for legal mobilization, consisting of lawyers, organizations and sources of financing, that makes sustained litigation possible" (1999, 256). …

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